Chapter 18
THE RIGHTS OF UNION MEMBERS
INTRODUCTION
This chapter covers the rights of union members against their unions. Unions, as bargaining agents
CHAPTER OUTLINE
Protection of the Rights of Union Members
Historical Roots
Courts, the NLRB, and Congress have imposed legal controls on unions.
*Duty of fair representation: Legal duty on the part of the union to represent fairly all members of the
bargaining unit.
“Union members’ bill of rights” assures fair internal union procedures and forbids certain
union practices under the NLRA.
Unreasonable union dues and initiation fees are prohibited under Section 8(b)(5).
The union member’s bill of rights was added to the NLRA with the Landrum–Griffin Act of
1959.
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CASE 18.1 STEELE V. LOUISVILLE & NASHVILLE R.R.
323 U.S. 192 (1944)
Background: Petitioner is an African-American locomotive fireman who works for the respondent
Nashville Railroad who sued on his own behalf and that of the other African-American employees. The
other respondent, the Brotherhood, is a union as provided under Section 2(4) of the Railway Labor Act
and is the firemen’s exclusive bargaining representative. The Union’s constitution excludes African–
Americans from membership and as a result of the Union’s status as exclusive bargaining representative,
the African-Americans are forced to accept the Brotherhood as their representative under the Act. In
March of 1940, the Brotherhood, without contacting any of the African-Americans sent notice to
respondent Railroad and twenty additional railroad companies announcing its desire to amend the CBA
to exclude all African-American firemen from service. In February of 1940 the railroads and the
Brotherhood entered into a new CBA which held that African-Americans can hold no more than 50% of
the firemen positions in each class of service in each seniority district, all new production runs and all
new vacancies are to be filled with whites, and no African-Americans would be sanctioned for
employment in any district in which they are not already working.
Issue: Whether the Railway Labor Act imposes on a labor organization, acting by authority of the statute
as the exclusive bargaining representative of a craft or class of railway employees, the duty to represent
all employees in the craft without discrimination because of their race, and, if so, whether the courts
have jurisdiction to protect the minority of the craft or class from the violation of such obligation?
Decision: Yes to both questions. The Court began its analysis by opining that Congress by enacting the
Railway Labor Act did not intend to give unions the right to sacrifice minority rights for the benefit of its
The court then proceeded to point out that there are legitimate topics of bargaining in which the union
could proceed to bargain for differing treatment, such as differences in seniority and type of work
performed without committing discrimination. In this case, however, the distinctions based on race are
ANSWERS TO CASE QUESTIONS
1. Steele is not a member of the union because the union’s constitution excludes African-Americans
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3. The union owes a duty of fair representation to all employees in the bargaining unit that the union
represents-not just to members of the union. The union’s duty of fair representation comes from the
union’s status as exclusive bargaining representative of the bargaining unit. Because the law gives
the union such status, the law will impose a duty on the union to ensure that it performs its
functions in a fair manner.
ETHICAL DILEMMA
Union Membership Benefits and Costs
The question is asking the students to be the HR manager of a plant of Immense Multinational Business.
In IMB, a union represents the production employees and the collective agreement contains a “union
shop” clause that mandates that employees in the bargaining unit join the union and remain a member in
good standing.
ANSWERS TO QUESTIONS:
The issue here is the benefits and costs of union membership. S. 8(c) protects the right of the employer to
express her or his opinion regarding unions as long as the remarks are not coercive or threatening. The
Mere negligence on the part of a union performing its contractual duties is not a breach of
the duty of fair representation according to the Court in Steelworkers v. Rawson. But, negligently
failing to follow hiring hall rules may be a breach of this duty per Jacoby v. NLRB.
CASE 18.2 HINES V. ANCOR MORTOR FREIGHT, INC.
424 U.S. 554 (1976)
Facts: Anchor Motors fired two of its truck drivers for allegedly submitting excess expense claims. The
CBA required just cause for discharge. At the grievance meeting evidence was presented including motel
receipts that showed charges greater than the motel’s registration cards stated, a motel clerk’s notarized
statement attesting to the truth of the rates on the registration cards, and an affidavit the motel owner
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After the arbitration hearing, the employees hired an attorney and petitioned for a rehearing because the
motel owner testified that the discrepancy between the receipts and registration cards could have been
due to a motel employee’s error. The arbitration panel denied rehearing because there was no evidence
that would justify a rehearing. Later, the motel employee was found to be at fault for the discrepancy.
The discharged employees than filed suit against both the union and the employer alleging that since
their discharge was not for good cause, the employer violated the CBA, and alleging that because the
union arbitrarily failed to investigate the employer’s charges of dishonesty, it violated the duty of fair
representation. The union relied on the arbitration panel’s decision and the employer argued that the
decision of the arbitration panel should stand because it was binding under the CBA. Even though
evidence was presented regarding the motel clerk falsifying the records, the trial court granted the union
and employer summary judgment on the grounds that the arbitration panel’s decision was final and
binding and the employees did not show the union acted arbitrarily or in bad faith. The court noted that
the union showed bad judgment in its investigation and arbitration hearing but that bad judgment was not
enough to violate the duty of fair representation. The employees appealed and the Court of Appeals
reversed, holding that sufficient evidence of bad faith or arbitrary conduct was presented. The decision
was then appealed to the Supreme Court.
Issue: Can the union be sued for breach of the duty of fair representation when the employer’s discharge
of the employees was held by the arbitration panel not to be in violation of the collective agreement?
Decision: Yes—if the fired employees show the discharge violated the CBA requirement of just cause
Union Dues and the Duty of Fair Representation
NLRA Section 8(a)(3) allows the employer and union to agree to a union security clause.
There two types of security clauses are a union shop* clause and an agency shop* clause.
*Union shop: A union security provision in a collective agreement that requires employees to become union
members within thirty days of their employment.
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Unions cannot use the dues or fees of non-union employees to pay for union activities that
do not relate to collective bargaining. In this situation, the non-union employees’ fees are reduced by
the amount of union expenditures that are not spent on collective bargaining activities.
Unions must provide an objecting member with an accounting of union expenditures in
collective bargaining and political activities along with an explanation of the basis of dues and fees.
Objectors must also be given the opportunity to challenge the dues and fees assessment before an
impartial decision-maker. If this is the case, the union must hold the disputed amounts in escrow until
the challenges are complete.
Unions may require objecting non-members to take these fee disputes to arbitration, but if
Executive Order 13201 signed by George W. Bush in 2001 applied to all firms conducting
business with the federal government and required those firms to post a notification that employees
subject to a union security agreement had the right to refuse to pay the portion of their dues that were
unrelated to collective bargaining, contract administration, or grievance adjustment expenses.
CASE 18.3 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 776, AFL-CIO
(Caroline Freight Carriers Corporation)
324 NLRB 1154 (1997)
Background: Carolina Freight, the employer, recognized the respondent Teamsters Union as the
exclusive collective bargain representative in a unit appropriate for collective bargaining purposes. The
CBA contained a union shop clause. The employer hired Timothy Blosser as a casual dock laborer on
May 2, 1992. On May 27, the Union sent the employee a registered letter outlining Blosser’s union
membership and financial obligations, stating that he must join or become a Union member on, but not
before June 2, 1994, and if he did not do so, the Union would inform the employer that he is ineligible
for employment. The letter did not reference Blosser’s right to opt out or pay less than full dues. Blosser
responded to the Union’s demand on June 1st alleging a violation of the duty of fair representation for
not advising him of his right to opt out. In this letter he also asserted that nonmembers did not have to
pay a fee equal to union dues, instead they had to pay a fee equal to a share of costs the union can prove.
The Union responded on June 3 with an accounting and a demand that he had seven days to comply.
Blosser responded to this letter with a request for an independent accounting’s verification instead of the
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Union verification that had been provided, and that he would not pay without such. In addition, he
asserted that the initiation fee should be reduced to 87% and he requested a copy of the CBA. On June
20, the Union complied and sent Blosser the auditor’s verification of core fees for 1993. This verification
concluded that the expenses chargeable to protesting members equaled 86.7%. On June 24, the Union
sent Blosser a demand for Blosser to pay the full dues and initiation fees, with no mention of an
adjustment, reiterated Blosser’s obligations without a reference to his right to chose core membership,
and threatened employer notification if he did not comply in 72 hours. Blosser responded on June 27,
asserting his entitlement to a complete audit by an independent auditor or his complete review, as well as
an opinion letter from the local, district, and national levels of the union outlining expenses. Blosser also
threatened to file a ULP charge if he did not get a copy of the CBA. On June 29, the Union provided
Blosser with a copy of the contract, but deferred providing the rest of the information while promising a
response. Blosser never joined the union, nor did he pay any fees or dues. He voluntarily quit Carolina
on June 29th.
Issue: Does a union seeking to enforce a union-security clause that fails to inform the employees who do
not wish to join the union that they do not have to pay full dues and fees, provide them with information
to intelligently decide whether to object, and inform them of the union’s internal procedures for filing
objections violate the duty of fair representation?
Decision: Yes. The Union here failed its duty of fair representation in violation of Section 8(b)(1)(A)
ANSWERS TO CASE QUESTIONS
1. The union is required to provide nonmembers with information regarding their rights under Beck⎯the
right to have dues reduced by the percentage of non-bargaining expenses, to provide information to
2. Organizing expenses are chargeable as bargaining expenses because the union requires members in
order to have bargaining leverage against employers, and unions seek to expand organizing to take
3. The union continually threatened to have Blosser fired if he didn’t join the union and pay the dues and
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fees. The union violated S. 8(b)(1)(A) by coercing and restraining Blosser in the exercise of his S. 7
rights⎯the right to object to union membership and to pay dues reflecting non-bargaining expenses.
Liability for Breach of the Duty of Fair Representation
THE WORKING LAW
Notice of Employee Rights under Federal Laws Required by Executive Order 13496
The Department of Labor published a notice of proposed rulemaking for the regulations implementing
Executive Order 13496. These regulations set out the form and content of the required notice of
employee’s rights under the NLRA, including a requirement that this notice is included in every
government contract and subcontract with some exclusions, and the text of the required notice,
enforcement procedures, an explanation of the sanctions, penalties, and remedies that a non-compliant
contractor or subcontractor faces. The text of required notice includes an explanation of employees’
by ensuring that workers employed in the private sector as a result of federal government contracts are
informed of their rights to engage in union activity and collective bargaining.” The administration
believes that employees having knowledge of these basic labor rights will promote stable relationships
between labor and management and, as a result, reduce costs to the federal government.
Supplemental information can be accessed at:
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Enforcing the Duty of Fair Representation
A breach of the duty of fair representation is a violation of Section 8(b)(1)(A) of the NLRA,
making it an unfair labor practice.
There is a six-month time limit for bringing breach of the duty of fair representation cases
under Section 301. The court has held that failing to enforce an arbitration award is a breach of the
duty of fair representation matter and thus is subject to the time limit. But, the six-month time period
does not begin to run until internal procedures have been exhausted, if there is such a requirement.
Exhausting Internal Remedies
Before initiating a suit under Section 301 or a ULP proceeding under Section 8(b)(1)(A), an
employee must exhaust all available internal remedies, such as a grievance proceeding.
An allegedly discriminated against employee may still proceed with a Title VII case along
with a Section 301 or Section 8(b)(1)(A) action because the remedies are independent.
There are differences in remedies between a Section 301 action and an action under Section
8(b)(1)(A).
Under Section 301, an employee can bring an action against both the union and employer
and can recover monetary damages except for punitive damages, legal fees, and may seek an
injunction.
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Rights of Union Members
Union members derive statutory rights from the “union members’ bill of rights” in the Labor
Management Reporting and Disclosure Act as well as Section 8(b)(1).
Nevertheless, unions cannot fine members who legally resign prior to crossing the picket
line and returning to work during a strike. In this vein, if a union cannot apportion its fines between
members conduct before and after resignation, the NLRB will rescind the entire fine.
A union cannot adopt rules limiting members’ rights to resign during a strike. This practice
is in violation of Section 8(b)(1)(A).
But, the union may charge a “re–initiation” fee equal to what they would have paid had they
not left the union, when the employee stays in the bargaining unit and later rejoins the union, in a
right-to-work state.
A condition precedent to filing suit under Sections 101(a)(5) and 102 is that the union
member had been subject to union discipline.
CASE 18.4 BOILERMAKERS V. HARDEMAN
401 U.S. 233 (1971)
Facts: Hardeman, a boilermaker and member of the local chapter of the International Brotherhood of
Boilermakers went to a union hiring hall to see Wise, the business manager in charge with referring
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workers for a job. A friend of Hardeman promised to ask by name for him to fill a job, but Wise made no
definite commitment. In response, Hardeman threatened violence if he was not offered work in a few
days. No job came, and a few days later after handing Wise a copy of a telegram, Hardeman punched
him in the face.
Issue: What standards should the courts use to review whether union disciplinary procedures are
reasonable under Section 101(a)?
Decision: The decision will be upheld as long as there was “some evidence” to support the union’s
decision. The Union argued that the NLRB had exclusive subject matter jurisdiction over the lawsuit
because the complaint alleged discrimination, arguably a ULP under 8(b)(1)(A) and 8(b)(2). The Court
affirming the trial court verdict.
Free Speech and Association
The provisions in Section 101 other than Section 101(a)(5) are basic rights in participating in
union activities and any clause in the union’s constitution or bylaws that are inconsistent with these
basic rights have no effect per Section 101(b).
Section 101(a)(2) guarantees to union members the rights of freedom of speech and
assembly. Any restriction of those rights must be reasonable and required for the orderly conducting
of union meetings. Civil liability attaches for a violation of these rights.
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But, a union member cannot preach “dual unionism”—advocating for membership in
another union during his union’s meetings, a union member is still subject to liable and slander laws,
however, and employees who engage in a wildcat strike in violation of a no strike clause are not
protected by the right to free assembly.
Election procedures are set forth in Title IV of the LMRDA. Section 401 mandates the
following:
Union officer elections must be held at least every five years.
Local unions must hold elections at least every three years.
International Organization for Masters, Mates & Pilots v. Brown stood for the preposition
that labor unions must “cooperate with all reasonable requests from candidates for union office to
distribute campaign literature. . . .”
CASE 18.5 HERMAN V. LOCAL 1011, UNITED STEEL WORKERS OF AMERICA
207 F.3d 924 (7th Cir. 2000), cert. denied, 531 U.S. 1010 (2000)
Background: LMRDA Section 401(e) requires that all union members in good standing be eligible to run
for office in union elections, subject to “reasonable qualifications uniformly imposed.” The Steelworkers
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The Act’s goal was to make labor union governance democratic. An assumption of this requirement is
that any adult member of the union is eligible to run for office. The fact of the matter is that only 3% of
the Union’s members, on average, attend the meetings. Nevertheless, the Union does not take the
meeting requirement very seriously in that it allows members who have attended no meetings, provided
they have an excuse, to run for office. The categories of excuses are reasonable in themselves. Examples
include serving in the armed forces, illness, or working during the meeting. But, if the Union were
serious about the meeting-attendance requirement, the fact that the non-attending union members had an
excuse would not justify their failure to attend the meetings.
Issue: Is a condition of eligibility that disqualifies a vast bulk of the union’s membership from standing
for union office presumptively unreasonable?
Decision: Yes. For a union to overcome this presumption, it must present convincing reasons, not mere
conjecture, as to why the condition for running for office is either not burdensome or that, while
ANSWERS TO CASE QUESTIONS
1. The eligibility rule requires that any candidate must attend at least one third of all monthly union
meetings during the 2 years prior to the election for which the person is a candidate, unless they are
2. The Secretary of Labor has challenged the rule because it operates to disqualify approximately 92% of
the local union membership; the Secretary argues that the rule is unreasonable under S. 401(e).
3. The court indicates that, when considering whether the rule is unreasonable, the court should look to
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Other Restrictions on Unions
Duties of Union Officers
Union officials are also obligated to report any “security or financial interest in, or any
benefit received from, any employer whose employees are represented by the union and anything of
value received from any business dealing connected to the union.”
Union officials are also under a duty to refrain from dealing with the union as an adverse
party in any manner connected to their duties and are not allowed to hold or acquire any personal or
pecuniary interest that conflicts with the union’s interests.
The union does have the right to contribute politically from a separate fund if its financing
comes from members’ voluntary contributions.
If such a fund is used the union must inform its members of the use of the funds and cannot
subject members to reprisals for not contributing.
State laws can also affect public sector unions. For example, a statute mandating that a
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ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. The duty of fair representation is a legal duty imposed on unions by virtue of their status as exclusive
representatives of the employees in the bargaining unit; the duty requires that the union fairly
3. Employees who are not union members can be required to pay the dues and fees of union
members under a union security provision in the collective bargaining agreement; states have the
4. Once a union member resigns, he or she is beyond the reach of union disciplinary rules, according
to Textile Workers Granite State Joint Board. In Pattern Makers’ League, the Supreme Court held
that a union may not restrict a member’s right to resign; such restrictions violate S. 8(b)(1)(A).
5. The Taft-Hartley and LMRDA restrictions on union officials include the disqualification of
persons convicted of certain criminal offenses from union office for five years, the bonding of
CASE PROBLEMS
6. The court determined that the union‘s failure to file the grievance was an arbitrary action that
substantially injured Beck, and thus a breach of its duty of fair representation.
7. The court held that Owens had no absolute right to have his grievance arbitrated and that if the union
made the decision not to arbitrate his grievance in good faith and on reasonable grounds, then it has
8. The plaintiff‘s claims against the union failed as there was no evidence that the local union
“arbitrarily ignore[d]” or handled plaintiff’s grievance in “perfunctory fashion,” and the same was
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9. Taschner could bring an action under S. 301 of the NLRA against both the union and the company;
against the union for breach of the duty of fair representation for arbitrarily or discriminatorily
refusing to pursue her grievance, and against the company for violating the collective agreement by
10. Feist’s suit was dismissed by the District Court because he failed to pursue internal union appeal
procedures before filing suit under S.101 of LMRDA. Section 101(a)(4) requires the exhaustion of
11. The court stated: “Mr. White has simply provided no evidence that his removal as an appointed shop
steward affected or directly infringed his union membership rights or status. However, he may still
12. The court declared the election null and void because it violated the procedural requirements under
S.401 of Title IV of LMRDA. There was no actual notice of the election to the members, as
required⎯the members must be mailed notice of the election at least 15 days prior to the election;
13. If the members can establish that the union acted arbitrarily or discriminatorily against them in
negotiating the challenged agreement, they will have established a breach of the duty of fair
14. The union negotiating a two-tiered wage scale is not guilty of violation of the duty of fair
representation as long as it acts on reasonable grounds and in good faith; however, if it adopts the
two-tier scale for discriminatory or bad faith reasons, it would be a violation of the duty. A two-tier
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15. According to the Labor-Management Reporting and Disclosure Act of 1959, §101(a)(5), union
disciplinary charge must include statement of facts describing incident on which charge is based.
The Court declared that for purposes of LMRDA provision preventing union’s discipline of
HYPOTHETICAL SCENARIOS
16. As in Boilermakers v. Hardeman, the Court should evaluate whether Kellerman was given
detailed statements of the facts constituting his violation of union rules, thus complying with S.
101(a)(5). The Court should also determine whether Kellerman was afforded a full and fair
17. Student’s answers may vary on this question. But the court should probably rule that National
Edison did not violate the collective bargaining agreement because they discharged Green for
cause. Green was still in his probationary period when he committed the infractions. In addition,
18. Yes. The agency fee that is paid into the strike fund is related to collective bargaining. The
agency fee is part of the collective bargaining agreement between the union and the employer.
19. The NLRB should rule on behalf of the union. According to Jacoby v. NLRB, negligently failing to
follow hiring hall rules may be a breach of this duty of fair representation per the collective
20. Yes. Unless she lives in a “right–to–work” state that prohibits mandatory union membership or