Right to Work and Duty to Represent

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Posted by: cvarone 2 mins ago 0 Comments

Today’s burning question: Are unions required to represent non-dues paying members, even in a right to work state?

Answer: The answer does not depend on whether the state is a right to work state. It depends on whether a union has lawfully been designated as the exclusive collective bargaining representative for the employees.

In jurisdictions where public employees are permitted to bargain collectively, the exclusive bargaining representative (the union) has a duty to represent all members of the bargaining unit whether they are members or not.

Let’s define “right to work states” so we are clear about what that term means.

Right-to-work states have statutes that expressly prohibit union security agreements, as well as any agreement or requirement that an employee join or pay dues to a union as a condition of employment, whether in the public or private sector. Legal Considerations for Fire and Emergency Services, 3^rd. Ed.

The term right to work state is often mistakenly used to refer to states where public employee collective bargaining is prohibited. While such states may be right to work states, they are actually more than that because they have other laws that make collective bargaining with public employees illegal. Right to work laws per se do not prohibit collective bargaining by public employees.

In states where collective bargaining for public employees is prohibited, unions are relegated to being fraternal associations and cannot represent employees. In such states unions have no duty to represent members or non-members. It is not because they are right to work states, it is because public sector collective bargaining is illegal!!!

So to slowly but surely close in on the answer to your question, there are right to work states where unions are allowed to represent public employees. In those states a union who is the duly appointed exclusive bargaining representative for the employees has a duty to represent members and non-members alike.

Whenever a union has been designated as the exclusive bargaining representative for the employees – the union has to represent all employees including non-members. If a union has not been designated as the exclusive bargaining representative – the union has no right nor duty to bargain on behalf of members or non-members.

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Curt Varone has over 41 years of fire service experience and 29 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.