In Lincoln Federal, American Sash and the recent Oklahoma litigation, unions sought to have the entirety of the relevant right-to-work laws or amendments overturned. But in other challenges, the goal was not to have the amendments or laws overturned; rather, it was to limit their scope. These challenges have often related to whether all union fees are prohibited and whether public employees are covered by these amendments and laws.
In Cone v. Nevada Service Employees Union/SEIU Local 1107, the Nevada Supreme Court held that despite Nevada’s right-to-work law, unions could charge nonunion workers a fee for handling the nonmembers’ individual grievances. The fee was substantial: Nonunion workers filing a grievance had to cover half the cost of the hearing officers and arbitrators for the grievance hearing and all of the union’s attorney fees up to $200 an hour. The fee schedule was imposed after a number of employees opted not to join the union.
Oddly, the court relied on the same "free-rider" policy arguments that unions often make to voters and legislators when seeking to prevent enactment of a right-to-work law:
"We see no discrimination or coercion, however, in requiring nonunion members to pay reasonable costs associated with individual grievance representation, and … we are convinced that the exclusive bargaining relationship establishes a ‘mutuality of obligation’: a union has the obligation to represent all employees in the bargaining unit without regard to union membership, and the employee has a corresponding obligation, if permissible under the CBA [collective bargaining agreement] and required by the union policy, to share in defraying the costs of collective bargaining services from which he or she directly benefits. Our recognition of this mutuality of obligation will, in part, serve to discourage ‘free riders’ — employees who receive the benefits of union representation but are unwilling to contribute to its financial support.
"Although appellants cite much precedent, including NLRB opinions, in support of their position … we disagree with this authority because it leads to an inequitable result that we cannot condone, by essentially requiring union members to shoulder the burden of costs associated with nonunion members’ individual grievance representation."
Nevada’s right-to-work law does not have a specific provision prohibiting collections of fees and charges, which likely aided the Nevada Supreme Court in reaching its decision. Thus, while silence regarding the charging of fees does not necessarily mean that a union would be allowed to charge them, this silence could allow a court to arrive at that conclusion.*
Another area in which courts have found ambiguity in right-to-work laws is public-sector employment. In Branch v. City of Myrtle Beach, the South Carolina Supreme Court held that public employees were exempt from the state’s right-to-work laws. The lower court had noted that the right-to-work law explicitly applied to "any employer" and held that a public employer fit within the plain meaning of that term. But the South Carolina Supreme Court held the plain meaning analysis was improper, writing, "At the time the legislature enacted the right-to-work statute, labor relations statutes did not apply to public employment unless coverage was specifically required by the statute’s language."†
A similar result was reached by the Tennessee Supreme Court in Keeble v. City of Alcoa. The court indicated that where a law is to apply to a sovereign power — the state of Tennessee in Keeble v. Alcoa — the law must do so in "clear and specific language." As in South Carolina, the court rejected an analysis based on the "plain meaning" of the statute. Because the Tennessee right-to-work statute did not specifically include public employers, the court concluded that the right-to-work law did not apply to state government or its political subdivisions.
* A different result was reached by the Arizona Court of Appeals in American Federation of State, County and Municipal Employees, AFL-CIO, Local 2384 v. Phoenix. The court noted, "[N]othing in Arizona’s constitution or statutes specifically prohibited requiring the payment of a pro rata share of a union’s expenses, or similar fees, as a term or condition of employment." (See American Federation of State, County and Municipal Employees, AFL-CIO, Local 2384 v. Phoenix, 142 P.3d 234, 236 (Ariz. Ct. App. 2006).) The unions therefore sought a "fair share" fee, basically (in the words of the court) "a pro rata share of expenses incurred by the union for negotiation, administration, and enforcement of collective bargaining agreements benefiting all members of the bargaining unit without regard to union membership." (Ibid., 235 n. 2.)
The Arizona Court held such fees were improper in light of Arizona’s right-to-work amendment and accompanying right-to-work laws:
"The clear intent of the electorate of Arizona in enacting [Arizona’s constitutional right-to-work provision] and Arizona’s ‘right to work’ laws was to ensure the freedom of workers to choose whether to join and participate in a union. Allowing the proposed ‘fair share’ fee would be contrary to the intent voiced by Arizona citizens because it would essentially render meaningless the distinction between union membership and non-membership. Non-members would be forced to contribute to, and thus support, the Union, albeit in an amount slightly less than full union dues. Consequently, the proposed ‘fair share’ fee would, in its practical effect to non-union employees, be little different than mandatory membership dues. Such a ‘fair share’ fee is no less onerous to freedom of employment than a compulsory arrangement requiring the payment of full union dues." (Ibid., 242-43 (internal citations and footnote omitted).)
The court correctly summarized the fundamental point in this case, writing, "[I]t is the compulsion and not the amount which is determinative." (Ibid., 242 (emphasis in original).) Ultimately, in other words, a union provides collective bargaining and grievance services precisely because the union itself sought and obtained an exclusive power to bargain on behalf of all workers in the collective bargaining unit, including those workers who do not wish to be members of the union. With this monopoly power, the union has accepted the duty to represent all workers in that bargaining unit. Compelling a worker who has chosen not to join the union to subsidize the union’s choice is questionable on its face and a clear contradiction of the intent of a right-to-work law.
† At first blush, exempting public-sector employees from South Carolina’s right-to-work statute would seem to be significant. But as the South Carolina Supreme Court wrote, “Unlike private employees, public employees in South Carolina do not have the right to collective bargaining.” (See Branch v. Myrtle Beach, 532 S.E.2d 289, 292 (South Carolina 2000).) Thus, “[E]ven if the right-to-work statute applied to public employment, significant aspects of the statute would be totally irrelevant.” (Ibid.)