In Communications Workers v. Beck, 487 U.S. 735 (1988), the Supreme Court held that a collective-bargaining representative under the NLRA may not charge an objecting nonmember covered by a contractual union-security clause for union activities unrelated to collective bargaining, contract administration or grievance adjustment. In ALPA v. Miller, -- U.S. --, 158 LRRM 2321 (May 26, 1998), the Supreme Court recently held that agency fee objectors under the Railway Labor Act could not be required to exhaust union-established arbitration procedures before bringing their fee disputes to federal court. This Memorandum is intended to provide guidance on the processing of unfair labor practice charges alleging that unions have improperly charged objectors for nonrepresentational activities, in light of ALPA v. Miller.

In California Saw, 320 NLRB 224, 233 (1995), enf'd 133 F.3d 1012 (7th Cir. 1998), the Board held that, "when or before a union seeks to obligate an employee to pay fees and dues under a union-security clause, the union should inform the employee that he has the right to be or remain a nonmember and that nonmembers have the right (1) to object to paying for union activities not germane to the union's duties as bargaining agent and to obtain a reduction in fees for such activities; (2) to be given sufficient information to enable the employee to intelligently decide whether to object; and (3) to be apprised of any internal union procedures for filing objections. If the employee chooses to object, he must be apprised of the percentage of the reduction, the basis for the calculation, and the right to challenge these figures." Thereafter, in United Brotherhood of Carpenters and Joiners of America, Local Union No. 943 (Oklahoma Fixture Co.),1 the Board "made it clear that when a union seeks to require an objecting employee to pay dues under a union security clause, reasonable procedures must be available for filing challenges to the amounts charged."

While the above requirement to have a challenge procedure is based upon the union's duty of fair representation obligation, this requirement has as its genesis the Supreme Court decision in Chicago Teachers Union Local 1 v. Hudson, 475 U.S. 292 (1986). In Hudson, the Court held that first amendment considerations required, inter alia, that a union must give objectors "a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker." 475 U.S. at 310. The Court in Hudson, however, did not answer the question of whether agency fee objectors would be required to utilize or exhaust this arbitration remedy before commencing a federal-court action.

In ALPA, the Supreme Court answered the above question and held that agency fee objectors cannot be required to exhaust union arbitration procedures to challenge a union's allocation of its expenditures despite the requirement in Hudson that the union make such an arbitration available to agency fee objectors. The Court found no basis for forcing into arbitration a party who never agreed to submit his claim arising under federal law to such a process.