What is the main purpose of union security provisions in a collective bargaining agreement?

The NLRA permits, under certain conditions, a union and an employer to make a union-security agreement, which requires employees to make certain payments to the union to retain their jobs.

A union-security agreement cannot require that applicants for employment be members of the union to be hired, and the agreement cannot require employees to actually join or maintain membership in the union to retain their jobs. Under a union-security agreement, individuals choosing to be dues-paying nonmembers may be required, as may employees who actually join the union, to pay full initiation fees and dues within a certain period of time (a grace period) after the collective bargaining contract takes effect, or after a new employee is hired.

However, if non-members object to the use of their payments for non-representational purposes, the most that can be required of them is that they would have to pay their share of the union’s costs relating to representational activities, such as collective bargaining, contract administration and grievance adjustment.

An employer's obligation under a contract provision requiring union dues checkoff terminates when the collective bargaining agreement expires, unlike most obligations which an employer is required by the NLRA to maintain as part of the status quo pending re-negotiation of the contract. The Biden Board recently returned to this position after a four-year period in which the Trump Board held dues checkoff was not part of the status quo that must be maintained.

Union Security Clause

Union Security is the primary objective of most unions. It involves compulsory membership as a condition of employment. This area of collective bargaining can be the most controversial yet necessary requirement to establish and maintain stability within the union structure. The objectives of this clause are to protect against employer discrimination, worker defection and rival union raiding tactics. The union security clause gives unions the power to enforce rules and regulations, and to collect dues. There are two main forms of union security. The closed shop requires that employees are union members prior to being hired. The union shop requires the employee to join the union as a condition of employment.
The closed shop gave the unions’ extreme power and control of the labor supply. The NLRB in the Brown-Olds case in 1956 determined that the closed shop was an illegal practice in regards to Taft-Hartley. The NLRB ordered the unions to reimburse employees for dues and assessments that were paid for the previous six months, prior to the charges being filed. The U.S. Supreme Court reviewed the Brown-Olds doctrine in 1961, and determined that the financial aspect of the doctrine was illegal. The courts determined that the union members were the only people who benefited from returning the dues and assessments. The employee that was denied work received no retribution.
The courts and the NLRB have determined that a hiring hall is essentially a closed shop. In order to take advantage of the services, a worker had to be a union member. Soon after the Taft-Hartley Act, was implemented, the NLRB ruled that these hiring halls were illegal. The NLRB eventually shifted its position in regards to the hiring hall if the hiring hall met the following criteria.

• Union membership was not required to be referred to a job
• The employer could reject any worker that was referred by the union
• Standards would be posted in the union hall for inspection

On the very same day that the NLRB composed these requirements, the Supreme Court reversed the NLRB decision in the Mountain pacific case. The Supreme Court determined that the NLRB exceeded its’ legal powers by establishing the safeguards. The court ordered the NLRB to examine each case on an individual basis to determine if discrimination was evident. Congress never acted on this decision, so the illegal closed shop and hiring hall still exist today.
When Congress amended the Taft-Hartley Act with the Landrum-Griffin Act it gave special treatment to the construction industry. The industry is allowed to negotiate a pre-hire labor agreement. This means that a contract can be negotiated before any worker is hired. The union can require an employee to join the union on the seventh day of hire. Neither the contractor, nor the union can abandon the contract. The NLRB made this decision in the John Deklewa and Sons case in 1987. The only way that a contract can be abrogated is if it expires or if the workers decertify the union. The pre-hire agreement laws that were implemented in the Landrum-Griffin Act legalize the closed shop in the construction industry.

Through the Labor Management Relations Act of 1987 (“LMRA”) or better known as the Taft-Hartley Act, Congress “prohibited a ‘closed shop,’ a union security agreement whereby an employer agrees to employ only union members.” See: Morrisey v. W. Virginia AFL-CIO, 239 W. Va. 633, 804 S.E.2d 883 (2017). Instead, the LMRA “permits an employer and an exclusive bargaining representative to enter into an agreement requiring all employees in the bargaining unit to pay periodic union dues and initiation fees as a condition of continued employment, whether or not the employees otherwise wish to become union members.” See also: Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 108 S. Ct. 2641, 101 L. Ed. 2d 634 (1988).

“Right-to-work” laws prohibit and invalidate union security agreements and union shops.

[Last updated in September of 2021 by the Wex Definitions Team]

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