Union shop
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In the United States of America, a union shop is a place of employment where the employer may hire either labor union members or nonmembers but where nonmembers must become union members within a specified period of time or lose their jobs. Under the National Labor Relations Act, the union may only require that employees either join the union or pay the equivalent of union dues. Nonmembers who object to that requirement may only be compelled to pay that portion of union dues that is attributable to the cost of representing employees in collective bargaining and in providing services to all represented employees, but not, with certain exceptions, to the union's political activities or organizing employees of other employers. Even stricter standards apply to unions covered by the Railway Labor Act and unions of governmental employees.
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[edit] Types of union security clauses
The union shop is sometimes referred to as a union security clause. Other forms of union security include an agency fee arrangement, which requires employees to pay an agency fee, but not to join the union, and maintenance of membership, which requires those employees who are union members to maintain their membership, but does not compel non-members to join or pay dues to the union.
In addition, a check-off agreement, in which an individual employee authorizes the employer to deduct union dues from his or her paycheck unless the agreement expires or is revoked, may function as a form of union security in some circumstances, even in right-to-work states, by holding a worker to a commitment to pay dues. Unions may not, on the other hand, insist that workers sign a checkoff authorization or demand that they be discharged for failure to do so or accept an employer's payment of the dues that an employee owes it if the employee has not signed a checkoff authorization.
[edit] Free rider problem
Under U.S. law, labor unions are required to negotiate for and defend the rights of all workers in the bargaining unit, whether they are members or not. This obligation is known as the duty of fair representation. Unions are prohibited, for example, from negotiating "members only" benefits because they are legally certified as the exclusive collective bargaining agent for all employees. Union security clauses are thus sought to reduce the free rider problem, a well-known theory in economics and political science.
[edit] Enforcement of union security clauses
The NLRA requires that employees must be given at least thirty days from the date of hire to join the union before they may be subject to being fired for failure to join the union or pay dues; shorter periods apply in the construction industry, while the RLA allows employees sixty days to join the union. The union cannot, on the other hand, require that an employee become a member "in good standing", i.e., do more than pay dues or their equivalent. While a union security agreement that, by its literal terms, requires an employee to become a member in good standing might appear to be unlawful on its face and therefore unenforceable, the National Labor Relations Board and the courts uniformly interpret such clauses to require no more than what the law permits.
Under United States labor law a private sector union can expel a member from the union for any number of reasons, so long as it provides the member with the minimum due process required by the Labor Management Reporting and Disclosure Act and does not do so for reasons prohibited by law, such as the member's race or protected political activities within the union. The union cannot, on the other hand, use a union security clause to require an employer to discharge a member for failure to maintain membership in good standing unless that member has been expelled from the union for failure to pay uniformly required union dues and fees; if the union expels a member for some reason other than failure to pay dues it effectively terminates any right it might have had to demand that the employee pay dues thereafter or request that the employee be discharged for failure to do so.
The NLRA imposes additional requirements before a union can invoke a union security clause to require an employer to fire an employee who has failed to pay dues. While the union does not have to give the individual employee the sort of trial-type hearing required by the Labor Management Reporting and Disclosure Act to expel a union member for other reasons, the union must give the employee a detailed written explanation of the amount of delinquent dues that the employee owes and how those dues were calculated and allow the employee a reasonable opportunity to pay those delinquent dues and fees before it asks that the employee be fired. In addition, the union must give all employees roughly the same opportunity to cure any delinquencies before requesting discharge; if the union gives one employee two weeks to pay delinquent dues, it must do the same for all others. The union is not, on the other hand, required to withdraw a request that an employee be fired for failure to pay delinquent dues if the employee makes the payment after the deadline, but before the employer has effected the discharge. A union may owe back pay to employees who have been fired without these procedural protections; the employer may be liable if it effects the discharge when it knew or should have known that the union had not complied with the minimum requirements of the NLRA.
Under the NLRA the union may only demand payment of those dues for periods when an employee was covered by a collective bargaining agreement that contained a valid union security clause; a union security clause may not be made retroactive to a period prior to the execution of the agreement. The union may not demand that an employee be fired for failure to pay extraordinary assessments that are not part of regularly, uniformly imposed dues. The Labor Management Reporting and Disclosure Act sets standards for the procedures that the union must follow when asking members to approve an increase in dues.
Union-represented employees covered by a union security clause may ask the NLRB to hold a "deauthorization election" to allow all bargaining unit employees to vote to determine whether the clause will continue to remain in effect. No such procedure exists under the RLA.
