Legal Overview of Rules Governing Unions, Members, Non-Members in Private Sector in Indiana



Leading proponents of a so-called “right-to-work” (RTW) law for Indiana have made a series of baseless and confusing claims about how federal and state laws currently apply to the relationships among unions, their members and the non-members that unions represent in private sector workplaces. Here is what those laws actually say, and how an Indiana RTW law would change those legal relationships in the state to the detriment of workers and their unions.



Employees Democratically Choose to Organize Into Unions

The very inception of a union in a private sector workplace occurs through democratic decision-making processes: under the National Labor Relations Act (NLRA), 29 U.S.C. § 159(a), the predicate for workplace representation by a labor organization is its "designat[ion] or select[ion] for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes."

A secret ballot election conducted by the National Labor Relations Board (NLRB), a neutral federal agency, typically is held to determine whether or not the majority of employees choose union representation; alternatively, an employer may agree to recognize and deal with the union that is designated by individual authorizations signed by a majority of the workers. If the union subsequently loses majority support, the workers may “decertify” it through a similar secret ballot election. 29 U.S.C. § 159(c).
Unions Operate Democratically and Are Controlled By Their Members

Unions in the private sector are democratic organizations controlled by their members.

This is guaranteed by federal law and the unions’ own democratically devised rules, which reflect a century of tradition and culture in the American labor movement, as well as experience that undemocratic unions are ineffective and do not survive.

The federal Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 401 et seq., requires that:
• Local union officers are elected at least every three years by secret ballot membership election.
• National union officers are elected at least every five years either by secret ballot or at a convention of delegates who are themselves elected by secret membership ballot.
• Member dues may be increased only by membership secret ballot votes or by those same elected convention delegates.
• All union members have an equal right to nominate candidates, run for union office, and vote in union officer elections without fear, favor or discrimination.
• All members have a right to exercise the freedoms of speech and association within their unions.
• All members have a right to financial and other information about their unions.
29 U.S.C. §§ 411-15, 481-83.

Every union also operates by its own, membership-approved constitution or bylaws that must comply with all of these requirements. And, all of the LMRDA rights and those union rules are enforceable in court against any violation or abuse. 29 U.S.C. §§ 185, 412.

No other institution in America – not business corporations, not charities, not other civic groups, and not even other membership organizations – is subject to anything like the legally enforceable requirements of democratic, membership-controlled governance that apply to unions.

Union Membership Is Completely Voluntary in Indiana and Everywhere Else

Membership in a union in the private sector in Indiana and in every other state is completely voluntary. No employee can be required to join a union, and any union member can resign his or her membership at any time for any reason, and without restriction or retaliation by the union for doing so. Pattern Makers League v. NLRB, 473 U.S. 95 (1985). Similarly, it is unlawful to maintain what is called a “closed shop” – that is, a requirement that a worker join a union in order for an employer to hire her in the first place. 29 U.S.C. §§ 158(a)(3) and (b)(2).

RTW proponents create confusion on this point because of the terminology of the NLRA (which dates from 1935), which uses the term “member” in a provision, 29 U.S.C. § 158(a)(3), that the Supreme Court 50 years ago made clear means only an employee's payment of fees to the union that represents him or her, not actual full membership in the sense of joining a group. NLRB v. General Motors Corp., 373 U.S. 734 (1963). See also Marquez v. Screen Actors Guild, 525 U.S. 33 (1998).

So, as with any other private institution in America, nobody can be compelled at any time to join a union against his will. In short, there is simply no such thing as the "compulsory unionism" that RTW proponents claim.


Employees Select a Union As Their “Exclusive” Representative in Dealing With Their Employer Because That’s the Only Way to Exercise Real Bargaining Power

When private sector workers select a union to represent them, their union is their “exclusive” bargaining representative, see 29 U.S.C. 159(a) – meaning the employer can’t undermine the union and the workers by cutting individual special deals, pitting some workers against others, or unilaterally paying unequal compensation to people who are performing the same jobs. No individual “bargaining power” can top what workers through a union can exercise together – that’s why workers organize in the first place. As the Supreme Court explained long ago when it recognized that the right to organize is “fundamental,” workers have organized unions “out of the necessities of the situation,” including that “a single employee was helpless in dealing with an employer” and “union was essential to give laborers opportunity to deal on an equality with their employer.” NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937).

At the same time, nothing in the law prevents private sector workers and an employer from privately agreeing that a union will represent only its own members. But this almost never happens, for three reasons. First and foremost, a private-sector employer has no legal obligation to recognize or deal with a union that doesn’t represent a majority of its workers. 29 U.S.C. §§ 158(a)(5), (d), 159(a). Second, employers are rarely willing to voluntarily recognize such a “minority” union, and never accept multiple minority unions representing the same kinds of workers in the same workplace. Third, even if an employer is willing to deal with a minority union, this is an impractical arrangement that inevitably enables only weak representation for the union’s members.


A Union Must Represent Its Members and Non-Members Equally and Without Preference or Discrimination in Dealing With Their Employer

A private sector union operates under a legally enforceable "duty of fair representation," that is, the union must “fairly and equitably…represent all employees..., union and nonunion.” International Assn. of Machinists v. Street, 367 U.S. 740, 761 (1961). This means a union cannot discriminate or act arbitrarily toward any employee due to the nature of his relationship with the union, and all employees are equally entitled to the union’s fair and vigorous representation. All members and non-members must receive the fruits of the union’s bargaining – wages, benefits and all other rights and protections – and enjoy full access to the grievance and arbitration process that is established to redress adverse or improper actions by the employer. 29 U.S.C. § 158(b)(2); Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 204 (1944); Bowman v. Tennessee Valley Authority, 744 F. 2d 1207, 1213-14 (6th Cir. 1984). This right to full and fair individual treatment by the union is legally enforceable in court and before the NLRB. Vaca v. Sipes, 386 U.S.171 (1967); Plumbers Local 32 v. NLRB, 50 F. 3d 29, 31-32 (D.C. Cir.), cert. denied, 516 U.S. 974 (1995).


In Indiana and Most Other States, Non-Members May Be Required To Pay Their Fair Share, Along With Members, of the Union’s Costs of Representing Them All Equally

In order to operate and represent its members and non-members alike, a union relies almost exclusively on income consisting of regular payments by the workers it represents. That dependence is driven by the union’s status as a nonprofit entity that does not engage in business activities – unlike the private sector employers it deals with, which may wield relatively huge resources. Members pay the union periodic dues that those members determine.

In 28 states, including Indiana, a union and the employer may agree that the non-members that the union represents – again, employees who are always entitled to full and fair representation by the union, and to all of the results of its bargaining – must pay the union an “agency fee” that accounts for their fair share of that representation. See W. Osborne, ed., Labor Union Law and Regulation 518 (Bureau of National Affairs 2003).

That is the crucial difference between the 28 states where this representation fee arrangement is lawful and a RTW state, where it isn’t: in a RTW state, a non-member can pay nothing for the union’s representation even though the union is legally required to guarantee all of the wages, benefits and workplace protections that members enjoy. Employers and their political allies typically promote RTW laws because they know that those laws inevitably weaken unions themselves, as there are always people who will choose to get something for nothing. And, that’s true even though the more workers who make this choice instead end up “getting what they paid for” – that is, nothing, when their union has too few resources to wield enough bargaining power to deal effectively with their employer. That is why RTW laws are often called “right to work for less” laws.

The “union shop” – where nobody has to join the union but the union must serve all workers fairly and all workers share the union’s representation costs by paying either dues or an agency fee – is fundamentally fair and vital to maintaining an effective union in the first place. As the Supreme Court has observed, "[a] union-shop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become 'free riders' – to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees." Abood v. Detroit Board of Education, 431 U.S. 209, 221-22 (1977). See also Ellis v. Brotherhood of Railway and Airline Clerks, 466 U.S. 435, 447 (1984).


Non-Members May Choose to Pay Only For a Union’s Actual Bargaining and Workplace Representation, Not Political Activity, Lobbying and Other Programs

Private-sector employees in Indiana who choose to be non-member "agency fee payers," as opposed to full union members, cannot be compelled to contribute toward a union's partisan political activity or its other activities separate from collective bargaining and contract administration, even though these employees may benefit from those union activities as well. A union may not compel non-members to financially support “union activities beyond those germane to collective bargaining, contract administration, and grievance adjustments." Communications Workers of America v. Beck, 487 U.S. 735, 745 (1988). See also Ellis v. Brotherhood of Railway and Airline Clerks, supra.

In fact, a non-member who believes that the union is improperly assessing her for unrelated costs may file a charge against the union with the NLRB; no lawyer is necessary to do so. And, if the NLRB finds merit in the charge, it will prosecute a complaint against the union – at no cost to the worker – and, if the NLRB prevails, it will secure for the worker an appropriate agency fee refund and a future fee reduction.

A union-represented non-member who wishes to pay the union only for bargaining and other workplace representation, and not other costs, may arrange that at any time. The Supreme Court has approved the system where non-members initiate this fee reduction in order to "attain the appropriate reconciliation between majority and dissenting interests in the area of political expression." International Assn. of Machinists v. Street, 367 U.S. at 773. “[D]issent is not to be presumed – it must affirmatively be made known to the union by the dissenting employee." Id. at 774. That dissent is simple to express and to actualize immediately, and the non-member’s action in doing so is fully protected from any adverse union or employer action.


Payroll Deduction of Union Dues or Agency Fees Is Also Completely Voluntary For Members and Non-Members Alike

Separately from the issue of union membership itself, no private sector employee is required to have money automatically withdrawn from his or her paycheck to finance any of the union's activities. The NLRA permits unions and employers to negotiate a payroll “check-off” that enables employees, at their individual option and as a matter of personal convenience, to authorize the employer to deduct union dues or agency fees from their paychecks and remit them directly to the union, rather than having to make these regular payments by check or cash through the mail or in person.

Without an employee's voluntary, explicit written authorization, such deductions from pay, and the transfers of those funds directly from the employer to the union, are unlawful. 29 U.S.C. § 186(c)(4). Neither a union nor an employer, separately or together, can require that employees pay dues or fees by payroll deduction. Similarly, union members cannot vote to impose such a requirement on themselves or others. Instead, for all employees, payroll deduction of union dues or agency fees is an individual choice.


So, a “Right-to-Work” Law in Indiana Is Unnecessary to Protect Individual Employee Rights, and Instead Would Undermine the Ability of Workers and Their Unions to Bargain With Employers and Redress Their Improper Actions

In short, under the legal system described above, which applies in Indiana and most other states, a union member who is dissatisfied with the union or the members’ majority decisions about bargaining, legislative action or anything else, can resign from membership and reduce his or her dues obligation to a lower representation fee. That ex-member can then withdraw all personal financial support for the union's legislative, political, community and charitable programs.

Doing so, of course, shifts a greater burden of paying for those programs to fellow workers who remain members, pay full dues and can still vote for officers and participate in other union decision-making. Meanwhile, the ex-member continues to benefit from both the union's workplace representation, which he is legally entitled to receive and continues to pay for, and all the union’s other programs and activities, which he doesn’t.

This legal system offers union-represented workers more financial choices in their union than they enjoy as taxpayers in the society at large. A taxpayer, like a union member, has full political rights in society and can't reduce his or her taxes in order not to pay for a particular disfavored government program. But a union member, unlike a taxpayer, can take the extra step of relinquishing political rights within the union in order to cease dues support for union programs that extend beyond basic workplace representation.

Of course, every member who takes that step weakens the union – and that’s the chief reason why business and other anti-union groups support RTW laws. RTW laws simply do not protect the “freedom” of a worker to choose whether or not to “join” a union, because all workers in Indiana and other non-RTW states already have that right. Instead, RTW laws encourage workers to become “free riders” who pay nothing at all to the union that represents them and undercut the bargaining power and rights of other workers and, ultimately, themselves.

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