Official time as a form of union security in federal sector labor-management relations

Air Force Law Review, Spring, 2007 by Kenneth Bullock

2. The Union Shop

Under the union shop, employees must become and remain full members of the union within a defined time period after hiring, usually 30 days. The union shop is only slightly less coercive than the closed shop from the employee's viewpoint, but it represents a significant shift from the employer's viewpoint, since the union no longer has complete control over the pool of potential employees.

The NLRA does not prohibit the negotiation of the union shop, but the employer's ability to enforce union shop agreements is limited by NLRA [section] 8(a)(3) and the U.S. Supreme Court's decision in NLRB v. General Motors Corp., where the Court held that the NLRA did not authorize any union-shop membership requirement beyond the payment of fees and dues. (9) Since it is a violation of the NLRA for an employer to enforce a union shop clause against an employee who has faithfully tendered dues and fees to the union, employees are protected from losing their jobs as a result of any union discipline not related to dues payment. The courts have also held that objecting employees are entitled to a rebate of the portion of union dues and fees used for political or public affairs purposes. (10)

Even though the union shop has not been fully enforceable under federal law since 1947, it was the most common form of union security in private-sector collective bargaining agreements as recently as 1995, (11) and it even exists in a few public-sector agreements. (12)

3. The Agency Shop and Fair Share

Even as they banned the closed shop, the drafters of the Taft-Hartley Amendments were sufficiently concerned about the "free rider" problem that they carefully crafted the Act to allow milder forms of union security, including the agency shop. (13) The agency shop is similar to the union shop, but it lacks one of its more objectionable features.

The employee is not required to become a member of the union or to express ideological support for unionism, but he is required to pay the union an amount equivalent to union dues and fees, to cover the cost of representative activities. The agency shop is found in a significant number of private-sector agreements (14) and is permitted for at least a portion of the public workforce in nineteen states and the District of Columbia. (15) Supreme Court decisions (16) have restricted the ability of unions to fully enforce agency shop provisions against employees who object to providing financial support for union activities. As a result, objecting employees are entitled to a rebate of those portions of dues expended on political activity.

The "fair share" arrangement is a variation on the agency shop that features a pre-determined fee structure, omitting the portion of dues that would be used for political activities. The arrangement relieves employees of the responsibility to demand fee rebates. (17) Eleven states recognize the "fair share" for public employees. (18)

The Taft-Hartley Amendments originally required a majority of employees in the bargaining unit to authorize the negotiation of the agency shop in a referendum. (19) The requirement proved to be unnecessary, however, since the agency shop was authorized in about 97 percent of elections held under the clause. Therefore, Congress repealed the requirement in 1951, replacing it with a provision for a deauthorization election. (20) The deauthorization election is not frequently used. In Fiscal Year 2005, the National Labor Relations Board (NLRB) conducted only fifty-nine union-security-deauthorization elections, and employees voted for deauthorization of union security provisions in only sixteen of the elections. (21)