Relying on last year’s groundbreaking ruling in Janus v. AFSCME, the NLRB recently found that a union violated the private sector National Labor Relations Act by charging non-members for certain lobbying expenses.
As readers recall, the U.S. Supreme Court in Janus held that it was unconstitutional for unions to charge public sector employees a fair share fee because that fee, or part of it, was used to advance the political agenda of the union. The court determined that this violated a worker’s 1st Amendment rights.
Now the NLRB, the agency charged with enforcing the private sector union Act, has used that same argument in deciding that a nurses’ union engaged in the same unlawful actions when it required non-members to support lobbying efforts designed to advance the union’s political agenda. Private sector unions are entitled to charge a fair share fee to employee members for efforts from which those non-members benefit through collective bargaining, but the recent ruling will narrow the ability of those unions to charge for lobbying efforts.
The NLRB held that “lobbying activity is not a representational function simply because the proposed legislation involves a matter that may also be the subject of collective bargaining.” It is likely though that private sector unions can still charge non-members for lobbying expenditures if it can be shown to be germane to the union’s actual performance of its representational function through collective bargaining, contract administration, or grievance adjustment.
Employers, especially private sector employers, should note that this ruling is not only a extension of the theme from Janus to the private sector, but also signals that the NLRB, like the Supreme Court, has taken a definite turn to the right. This should result in greater flexibility for employers in the future.
