Unions no longer can require objectors to contribute toward union lobbying costs, the National Labor Relations Board (NLRB) has ruled in a 3-1 decision. United Nurses & Allied Professional (Kent Hospital), 367 NLRB No. 94 (Mar. 1, 2019).

The NLRB said lobbying costs of all kinds are not considered part of a union’s statutory collective-bargaining obligations under the National Labor Relations Act (NLRA), and, therefore, unions cannot compel support. This decision represents the latest setback to efforts by public and private sector unions to collect and make use of nonmembers’ contributions.

The facts of Kent Hospital date back nearly a decade. In 2009, Jeanette Geary, a nurse working at Kent Hospital in Warwick, Rhode Island, resigned her union membership with United Nurse and Allied Professionals (UNAP). As a nonmember where the collective bargaining agreement contained a union-security provision requir­ing all new unit members to join the Union by their 30th day of employment, Geary was still obligated to contribute certain fees to UNAP. As established by the U.S. Supreme Court decision in Communications Workers v. Beck, 487 U.S. 735 (1988), a union may compel nonmembers to contribute fees deemed necessary to “performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.” Duties deemed necessary include collective bargaining, contract administration, and grievance adjustment.

In 2009, UNAP spent $22,650 from its general operating fund to contribute to its lobbying efforts in the Rhode Island and Vermont state legislatures. Those funds went directed toward lobbying on seven bills. The bills related to health care institutions, and they ranged in purpose from increasing funding for mental healthcare services at UNAP-represented facilities to increasing state monitoring of certain hospitals.

Geary challenged the lobbying expenditure as outside the scope of UNAP’s statutorily required functions and as unrelated to collective bargaining, contract administration, or grievance adjustment. The NLRB agreed. It found that lobbying expenses, at best, can serve only indirectly a union’s representative functions. Political functions, such as lobbying, are “too attenuated to justify compelled support,” according to the NLRB.

This is the opposite of the conclusion the NLRB came to when it first reached a decision in this case in 2012, under a more union-friendly NLRB. At that time, a majority of the Board endorsed a potential balancing test whereby lobbying for certain bills considered “germane” to statutorily-related union activities (such as bills increasing the minimum wage) would be permitted with nonmember contributions. However, the Supreme Court vacated that ruling when it held that three recess appointments to the Board in January 2012 were invalid. (For more on the Court’s decision, see our article, Supreme Court Issues Historic Decision on President’s Recess Appointment Power.) Member Lauren McFerran endorsed a similar balancing test in her dissent to this latest NLRB ruling.

The United Nurses ruling highlights two trends. First, the NLRB continues to reject the Obama-Board balancing tests in favor of bright-line rules on what is and is not permitted under the NLRA. Second, the decision demonstrates the continued limitations unions face in conducting political activity. The Supreme Court in 2018 disallowed public sector unions from collecting fees from nonmembers altogether. (See our article, Supreme Court Rules Unconstitutional Mandatory Fees Imposed on Non-Union, Public Sector Employees.) It appears that may apply to the private sector.

Please contact Jackson Lewis with any questions about this case or the NLRB.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.