Union security agreement

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A union security agreement is a contractual agreement, usually part of a union collective bargaining agreement, in which an employer and a trade or labor union agree on the extent to which the union may compel employees to join the union, and/or whether the employer will collect dues, fees, and assessments on behalf of the union. [1]

Contents

Rationale

The free-rider problem is often cited as the rationale for union security agreements. A classic study of the free rider problem is presented in Mancur Olson's 1965 work, The Logic of Collective Action. [2] In labor relations, the free rider problem exists because the costs of organizing a union and negotiating a contract with the employer can be very high, and because employers will find it too cumbersome to adopt multiple wage and benefit scales, some or all non-union members may find that the contract benefits them as well. [3]

Thus, the incentive is for some individual workers to "ride for free" by not paying the costs, which can lead to the collapse of the union and no collective bargaining agreement. [3] If the union collapses, each worker may be worse off than if the union had negotiated the agreement. [3] Union security agreements are one way of ensuring that all (or nearly all) workers pay their fair share of the costs of collective bargaining (e.g., join the union and pay dues). [3] [4]

One solution is for the state to provide rights (such as the right to administer welfare or pension funds, or to participate in a works council) or benefits (such as unemployment insurance) only to unions or their members. [5] [6] Another solution is for unions to engage in members-only collective bargaining, which restricts the benefits of the contract to union members. [7] [8]

The International Labour Organization's Right to Organise and Collective Bargaining Convention can "in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice." [9]

Union security agreements are explicitly mentioned in the labor laws of many countries. They are highly regulated by law and court rulings in the United States [1] [10] and to a lesser degree in the United Kingdom. [8] [ verification needed ] In Canada, the legal status of the union security agreement varies from province to province and at the federal level, with a few provinces permitting but not requiring it but the majority of provinces (and the federal government) requiring it if the union requests it. [11]

In most Western European countries, the closed shop (one form of the union security agreement) is typically banned, while other forms typically go unregulated in labor law. [8] [12] This is not universal; for example, in Germany both the right to join a union and the right not to join a union are equally protected by law and the courts, and all forms of union security agreements are banned. [6] The law in Belgium has similar provisions. [8] Still, since participation in the unemployment insurance system is compulsory and only unions have the right to administer this system, union membership in Belgium remains high. [5]

Outside North America and Western Europe, the legal status of union security agreements varies even more widely. In New Zealand, as of 1988, the closed shop was compulsory where a union organized the workplace. [13] In the Philippines, various types of union security agreements are permitted under labor law. [14] In Mexico, the closed shop was mandatory until the early 1990s, when a change in federal law permitted the union shop, agency shop, or no agreement at all. [15] [16] But because of the political ties between unions and the governing party in Mexico and other ways in which Mexican law favors established unions, the closed shop is essentially still the norm. [16]

Many countries, however, have not addressed the issue of union security agreements. Neither Indonesian nor Thai labor law addresses the issue, and in both countries collective bargaining, union administrative procedures, and dues collection are so weak that the union security issues rarely arise. [17] In Australia, the legal status of union security agreements has varied widely across each state and the national government and over time. Australian labor law does not explicitly regulate union security agreements. However, various forms of the union security agreement have been favored at one time or another by each state, territory, or the national government, effectively regulating the favored type of union security agreement and disadvantaging its other forms. [18]

Types

Various types of union security agreements exist. Among the more common are:

Janus v. AFSCME

Janus v. American Federation of State, County, and Municipal Employees, Council 31, _ US _ (2018) is a US labor law case, concerning whether governments violate the First Amendment when they require their employees to pay fees to a union as a condition of employment.

In February 2015, Illinois Republican Governor Bruce Rauner filed suit, claiming that fair-share agreements are unconstitutional and a violation of the First Amendment right to free speech.

In March 2015, three government workers from Illinois represented by attorneys from the Illinois-based Liberty Justice Center and Virginia-based National Right to Work Legal Defense Foundation took legal action to intervene in the case. [20] [21] [22] In May 2015, Rauner was dropped from the case, after a federal judge ruled that the governor did not have standing to bring such a suit, but the case proceeded under a new name, Janus v. AFSCME. [23] The case is named after Mark Janus, an Illinois child support specialist covered by a collective bargaining agreement.

Janus claimed that he should not need to pay fees to the American Federation of State, County and Municipal Employees because doing so constitutes paying for political speech with which Janus disagrees. [24] This became permissible after a 1977 decision by the US Supreme Court in Abood v. Detroit Board of Education .

In June 2018, the US Supreme Court ruled in favor of Janus, in a 5–4 decision, and stated that "States and public-sector unions may no longer extract agency fees from nonconsenting employees". [25]

Related Research Articles

<span class="mw-page-title-main">Taft–Hartley Act</span> 1947 U.S. federal law regulating labor unions

The Labor Management Relations Act of 1947, better known as the Taft–Hartley Act, is a United States federal law that restricts the activities and power of labor unions. It was enacted by the 80th United States Congress over the veto of President Harry S. Truman, becoming law on June 23, 1947.

Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The interests of the employees are commonly presented by representatives of a trade union to which the employees belong. A collective agreement reached by these negotiations functions as a labour contract between an employer and one or more unions, and typically establishes terms regarding wage scales, working hours, training, health and safety, overtime, grievance mechanisms, and rights to participate in workplace or company affairs. Such agreements can also include 'productivity bargaining' in which workers agree to changes to working practices in return for higher pay or greater job security.

In the context of labor law in the United States, the term "right-to-work laws" refers to state laws that prohibit union security agreements between employers and labor unions which require employees who are not union members to contribute to the costs of union representation. Unlike the right to work definition as a human right in international law, U.S. right-to-work laws do not aim to provide a general guarantee of employment to people seeking work but rather guarantee an employee's right to refrain from paying or being a member of a labor union.

A pre-entry closed shop is a form of union security agreement under which the employer agrees to hire union members only, and employees must remain members of the union at all times to remain employed. This is different from a post-entry closed shop, which is an agreement requiring all employees to join the union if they are not already members. In a union shop, the union must accept as a member any person hired by the employer. By comparison, an open shop does not require union membership of potential and current employees.

In labor law, a union shop, also known as a post-entry closed shop, is a form of a union security clause. Under this, the employer agrees to either only hire labor union members or to require that any new employees who are not already union members become members within a certain amount of time. Use of the union shop varies widely from nation to nation, depending on the level of protection given trade unions in general.

<span class="mw-page-title-main">United States labor law</span> US laws on fair pay and conditions, unions, democracy, equality and security at work

United States labor law sets the rights and duties for employees, labor unions, and employers in the USA. Labor law's basic aim is to remedy the "inequality of bargaining power" between employees and employers, especially employers "organized in the corporate or other forms of ownership association". Over the 20th century, federal law created minimum social and economic rights, and encouraged state laws to go beyond the minimum to favor employees. The Fair Labor Standards Act of 1938 requires a federal minimum wage, currently $7.25 but higher in 29 states and D.C., and discourages working weeks over 40 hours through time-and-a-half overtime pay. There are no federal laws, and few state laws, requiring paid holidays or paid family leave. The Family and Medical Leave Act of 1993 creates a limited right to 12 weeks of unpaid leave in larger employers. There is no automatic right to an occupational pension beyond federally guaranteed Social Security, but the Employee Retirement Income Security Act of 1974 requires standards of prudent management and good governance if employers agree to provide pensions, health plans or other benefits. The Occupational Safety and Health Act of 1970 requires employees have a safe system of work.

Enterprise bargaining is an Australian term for a form of collective bargaining, in which wages and working conditions are negotiated at the level of the individual organisations, as distinct from sectoral collective bargaining across whole industries. Once established, they are legally binding on employers and employees that are covered by the Enterprise bargaining agreement. An Enterprise Agreement (EA) consists of a collective industrial agreement between either an employer and a trade union acting on behalf of employees or an employer and employees acting for themselves.

An open shop is a place of employment at which one is not required to join or financially support a union as a condition of hiring or continued employment.

The duty of fair representation is incumbent upon Canadian and U.S. labor unions that are the exclusive bargaining representative of workers in a particular group. It is the obligation to represent all employees fairly, in good faith, and without discrimination.

An agency shop is a form of union security agreement where the employer may hire union or non-union workers, and employees need not join the union in order to remain employed. However, the non-union worker must pay a fee to cover collective bargaining costs. The fee paid by non-union members under the agency shop is known as the "agency fee".

Financial Core refers to a legal carve-out that permits workers opposed to participating in a labor union to be employed under the benefits of a union's contracts without compelling them to be a member of that union.

<span class="mw-page-title-main">Labor relations</span> Study of work and workers

Labor relations or labor studies is a field of study that can have different meanings depending on the context in which it is used. In an international context, it is a subfield of labor history that studies the human relations with regard to work in its broadest sense and how this connects to questions of social inequality. It explicitly encompasses unregulated, historical, and non-Western forms of labor. Here, labor relations define "for or with whom one works and under what rules. These rules determine the type of work, type and amount of remuneration, working hours, degrees of physical and psychological strain, as well as the degree of freedom and autonomy associated with the work." More specifically in a North American and strictly modern context, labor relations is the study and practice of managing unionized employment situations. In academia, labor relations is frequently a sub-area within industrial relations, though scholars from many disciplines including economics, sociology, history, law, and political science also study labor unions and labor movements. In practice, labor relations is frequently a subarea within human resource management. Courses in labor relations typically cover labor history, labor law, union organizing, bargaining, contract administration, and important contemporary topics.

Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991), deals with First Amendment rights and unions in public employment.

The National Right to Work Legal Defense Foundation, established in 1968, is a nonprofit organization that seeks to advance right-to-work laws in the United States.

Davenport v. Washington Education Association, 551 U.S. 177 (2007), is a ruling by the Supreme Court of the United States in which the Court held that it does not violate the First Amendment for a state to require its public-sector unions to receive affirmative authorization from a non-member before spending that nonmember's agency fees for election-related purposes.

Communications Workers of America v. Beck, 487 U.S. 735 (1988), is a decision by the United States Supreme Court which held that, in a union security agreement, unions are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining representative. The rights identified by the Court in Communications Workers of America v. Beck have since come to be known as "Beck rights," and defining what Beck rights are and how a union must fulfill its duties regarding them is an active area of modern United States labor law.

Abood v. Detroit Board of Education, 431 U.S. 209 (1977), was a US labor law case where the United States Supreme Court upheld the maintaining of a union shop in a public workplace. Public school teachers in Detroit had sought to overturn the requirement that they pay fees equivalent to union dues on the grounds that they opposed public sector collective bargaining and objected to the political activities of the union. In a unanimous decision, the Court affirmed that the union shop, legal in the private sector, is also legal in the public sector. They found that non-members may be assessed agency fees to recover the costs of "collective bargaining, contract administration, and grievance adjustment purposes" while insisting that objectors to union membership or policy may not have their dues used for other ideological or political purposes.

South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.

Harris v. Quinn, 573 U.S. 616 (2014), is a US labor law case of the United States Supreme Court regarding provisions of Illinois state law that allowed a union security agreement. Since the Taft-Hartley Act of 1947 prohibited the closed shop, states could still choose whether to allow unions to collect fees from non-union members since the collective agreements with the employer would still benefit non-union members. The Court decided 5–4 that Illinois's Public Labor Relations Act, which permitted the union security agreements, violated the First Amendment. A similar case was decided by the Court in 2018, Janus v AFSCME, overturning the Court's unanimous decision in Abood v. Detroit Board of Education (1977) which the appeals court had upheld in Harris.

Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S. ___ (2018), abbreviated Janus v. AFSCME, is a landmark decision of the US Supreme Court on US labor law, concerning the power of labor unions to collect fees from non-union members. Under the Taft–Hartley Act of 1947, which applies to the private sector, union security agreements can be allowed by state law. The Supreme Court ruled that such union fees in the public sector violate the First Amendment right to free speech, overruling the 1977 decision in Abood v. Detroit Board of Education that had previously allowed such fees.

References

  1. 1 2 3 4 5 6 7 Pynes, Joan. Human Resources Management for Public and Nonprofit Organizations. 2d ed. Hoboken, N.J.: John Wiley and Sons, 2004. ISBN   0-7879-7078-6
  2. ↑ Olson, Mancur. The Logic of Collective Action: Public Goods and the Theory of Groups. 18th rev. ed. Cambridge, Mass.: Harvard University Press, 1971. ISBN   0-674-53751-3
  3. 1 2 3 4 Towers, Brian. The Representation Gap: Change and Reform in the British and American Workplace. Oxford, England: Oxford University Press, 1997. ISBN   0-19-829319-4; Holley, William H.; Jennings, Kenneth M.; and Wolters, Roger S. The Labor Relations Process. 9th ed. Florence, Ky.: Cengage Learning, 2008. ISBN   0-324-42144-3; Beatty, David M. Putting the Charter to Work: Designing a Constitutional Labour Code. Toronto: McGill-Queen's Press - MQUP, 1987. ISBN   0-7735-0601-2; Bar-Niv, Zvi H. International Labour Law Reports, Volume 8. Leiden, The Netherlands: Martinus Nijhoff Publishers, 1990. ISBN   0-7923-0429-2
  4. ↑ Not all scholars agree that a free rider problem exists in labor relations. See: Baird, Charles W. Opportunity or Privilege: Labor Legislation in America. New York: Transaction Publishers, 1984. ISBN   0-912051-02-7
  5. 1 2 Rothstein, Bo. "Labour-Market Institutions and Working-Class Strength." In Power Resources Theory and the Welfare State: A Critical Approach: Essays Collected in Honour of Walter Korpi. Julia Sila O'Connor and Gregg Matthew Olsen, eds. Toronto: University of Toronto Press, 1998. ISBN   0-8020-7171-6
  6. 1 2 Daubler, Wolfgang. "The Individual and the Collective: No Problem for German Labor Law?" Comparative Labor Law and Policy Journal. 10:505 (Summer 1989).
  7. ↑ Morris, Charles. The Blue Eagle At Work: Reclaiming Democratic Rights In The American Workplace. Ithaca, N.Y.: ILR Press, 2004. ISBN   0-8014-4317-2.
  8. 1 2 3 4 Ulman, Lloyd; Eichengreen, Barry J.; and Dickens, William T. Labor and an Integrated Europe. Washington, D.C.: Brookings Institution Press, 1993. ISBN   0-8157-8681-6
  9. ↑ "Case(s) No(s). 188, Report No. 34 (Denmark): Complaints against the Government of Denmark presented by Swiss Printing Workers' Union and the Swiss Federation of National Christian Trade Unions." Archived 2011-06-04 at the Wayback Machine Document No. 031960034188. Cases of the Committee on Freedom of Association. International Labor Organization. March 4, 1959.
  10. ↑ Gold, Michael Evan. An Introduction to Labor Law. 2d rev. ed. Ithaca, N.Y.: Cornell University Press, 1998. ISBN   0-8014-8477-4
  11. ↑ Bennett, James T. and Kaufman, Bruce E. The Future of Private Sector Unionism in the United States. Armonk, N.Y.: M.E. Sharpe, 2002. ISBN   0-7656-0852-9
  12. ↑ Kassalow, Everett M. "The Closed and Union Shop in Western Europe: An American Perspective." Journal of Labor Research. 1:2 (June 1980).
  13. ↑ Davidson, Alexander. Two Models of Welfare: The Origins and Development of the Welfare State in Sweden and New Zealand, 1888-1988. Stockholm: Almqvist and Wiksell International, 1989. ISBN   91-554-2486-4
  14. ↑ Mendoza, Quintin C. The Philippine Labor Relations Law. Manila, Philippines: Rex Book Store, 2001. ISBN   971-23-0583-X
  15. ↑ Befort, Stephen F. and Cornett, Virginia E. "Beyond the Rhetoric of the NAFTA Treaty Debate: A Comparative Analysis of Labor and Employment Law in Mexico and the United States." Comparative Labor Law and Policy Journal. 17:269 (Winter 1996).
  16. 1 2 LaBotz, Dan. Mask of Democracy: Labor Suppression in Mexico Today. Boston: South End Press, 1992. ISBN   0-89608-437-X
  17. ↑ Levine, Marvin J. Worker Rights and Labor Standards in Asia's Four New Tigers: A Comparative Perspective. New York: Springer, 1997. ISBN   0-306-45477-7
  18. ↑ Weeks, Phillipa. Trade Union Security Law: A Study of Preference and Compulsory Unionism. Annandale, NSW, Australia: Federation Press, 1995. ISBN   1-86287-167-1
  19. ↑ Marczely, Bernadette. Human Resource and Contract Management in the Public School: A Legal Perspective. New York: Rowman & Littlefield, 2002. ISBN   0-8108-4379-X
  20. ↑ "State workers in Illinois sue to end mandatory union fees". Illinois Policy. 2015-03-23. Retrieved 2018-06-21.
  21. ↑ Ravve, Ruth (2015-04-06). "Unions battle for survival in key strongholds as court cases challenge forced dues". Fox News. Retrieved 2018-06-21.
  22. ↑ "3 state employees want to join Rauner lawsuit over 'fair share' union fees". Chicago Sun-Times. Retrieved 2018-06-21.
  23. ↑ Pearson, Rick. "Judge drops Rauner 'fair share' suit, lets non-union workers' case proceed". chicagotribune.com. Retrieved 2018-06-21.
  24. ↑ "Case: 1:15-cv-01235 - MARK JANUS, MARIE QUIGLEY, and BRIAN TRYGG v. American Federation of State, County, and Municipal Employees, Council 31; General teamsters/professional & technical employees Local Union no. 916; Tom Tyrrell" (PDF). 2015-06-01. Retrieved 2024-01-29.
  25. ↑ "JANUS v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL" (PDF). 2018-06-27. Retrieved 2024-01-29.
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