Background: Agency Fees and the Duty of Fair Representation

Wherever collective bargaining takes place in Michigan, it is governed by one of three sets of laws. The National Labor Relations Act is a federal statute passed in 1935 covering nearly all private-sector employees.[3] Collective bargaining between counties or municipalities and their unionized employees is done under Michigan's Public Employee Relations Act.[4] The State of Michigan also bargains collectively with most of its employees under rules promulgated by the state's Civil Service Commission.[5]

All three labor laws share a common framework of obligations for unions, management and

individual workers, which can be summed up as a series of four mandates: mandatory recognition, mandatory representation, mandatory bargaining and mandatory support.[6]

Mandatory recognition means that when a union proves that it has the support of a majority of workers in a bargaining unit, the employer must recognize that union. An employer may recognize a union voluntarily, or the union's support may be confirmed after a secret-ballot election in which the union wins a majority of votes.

Mandatory representation means that once a union is recognized, whether voluntarily or after a secret-ballot election, all workers in the bargaining unit, including those who opposed unionization or supported another union, are legally obligated to accept that union's representation. At the same time, the union is legally obligated to represent all workers in that bargaining unit both in collective bargaining and in pursuing workplace grievances; this is referred to as the "duty of fair representation."

Mandatory bargaining refers to the obligation of both union and employer to bargain in good faith. This good-faith bargaining is more than ordinary honesty in making offers or fulfilling the terms of a contract in force: Both union and employer must be ready to demonstrate that they are bargaining with the intention of reaching an agreement.

Finally there is mandatory support. In the absence of a state right-to-work law, a collective bargaining agreement may include a provision for what is called "agency fees," "union security," or (by its critics) "forced dues." All three terms refer to the same basic thing: All workers covered by the contract must either join the union and pay the associated dues or remain out of the union and pay an agency fee, typically equal to regular membership dues.

Under a right-to-work law, a collective bargaining agreement cannot require an agency fee for nonmembers covered by a union contract. Opponents of right-to-work laws argue that this puts unions in the untenable position of being obligated to represent workers who may choose not to contribute to the costs of providing that representation. Union advocates claim that without the mandate of an agency fee clause, workers will be tempted to forgo paying union dues, leaving the union without the resources to represent workers effectively at the bargaining table or to pursue grievances aggressively. The extent to which this situation represents a burden on unions is dubious, however; union officials have yet to pursue legislation that would relieve them of the duty of representing non-dues-paying employees in right-to-work states.

[3] 29 U.S.C. §151 et seq.

[4] M.C.L. §423.201 et seq.

[5] Michigan Civil Service Commission Rules, Chapter 6.

[6] For a more in depth discussion of the laws surrounding collective bargaining in Michigan, see Hunter, Robert, Michigan Labor Law, What Every Citizen Should Know, Mackinac Center, 1999 Online at: