Know Your Workplace Rights: A Guide for Charter School Employees

Know Your

Workplace Rights

______________________________________

A GUIDE FOR CHARTER

SCHOOL EMPLOYEES

______________________________________

By the National Right to Work Legal

Defense Foundation

KNOW YOUR

WORKPLACE RIGHTS!

A Guide for Charter School Employees

by

National Right to Work

Legal Defense and Education

Foundation, Inc.

Copyright 2012

National Right to Work Legal Defense

and Education Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, VA 22160

(800) 336-3600

http://www.nrtw.org

All rights reserved.

No part of this publication in excess of fair use, 17

U.S.C. § 107, may be reproduced, stored in a re-

trieval system, or transmitted in any form or by any

means—electronic, mechanical, photocopying, re-

cording, or otherwise—without the prior written

permission of the publisher. No copyright is

claimed in the text of statutes, regulations, and ex-

cerpts from court opinions quoted within this work.

i

WHAT THIS MANUAL COVERS

This manual discusses in general terms the rights of

charter school employees when there is a union pre-

sent, or attempting to gain a presence, at their

workplace. Its focus is to educate charter school

employees about their rights so they can make in-

formed decisions about union membership and rep-

resentation, and not become victims of compulsory

unionism abuses.

Over the years, the United States Supreme Court

has set out specific rights for employees when they

face compulsory unionism. These rights find their

protection in the First Amendment of the United

States Constitution. Other employee rights in this

area may also be found in the National Labor Rela-

tions Act (“NLRA”) and state statutes. For a sum-

mary of Supreme Court cases concerning these em-

ployee rights, see Appendix A, page 35.

The National Right to Work Legal Defense Founda-

tion has the single purpose of defending employees

against compulsory unionism abuses.

If, after reading this guide, you have questions

about your rights when there is a union present or

attempting to gain representation status with your

employer, you may contact the National Right to

Work Legal Defense Foundation at (800) 336-3600

or [email protected]. You may also contact the Foun-

dation at http://www.nrtw.org/legal.htm.

ii

ABOUT THE RIGHT TO WORK

PRINCIPLE, THE FOUNDATION,

AND THIS MANUAL

The Right to Work principle—the guiding concept

of the National Right to Work Legal Defense Foun-

dation—affirms the right of every American to

work for a living without being compelled to belong

to a union. Compulsory unionism in any form—

“union,” “closed,” or “agency” shop—is a contra-

diction of the Right to Work principle and the fun-

damental human right that the principle represents.

The National Right to Work Legal Defense Founda-

tion, established in 1968, is a nonprofit, charitable

organization. Its mission is to eliminate coercive

union power and compulsory unionism abuses

through strategic litigation, public information, and

education programs.

The Foundation’s legal aid program is designed to

fulfill two objectives: to enforce employees’ exist-

ing legal rights against forced unionism abuses and

to win new legal precedents expanding these rights

and protections. These objectives are fulfilled

through the litigation of cases involving: misuse of

forced union dues for political purposes; union co-

ercion violating employees’ constitutional and civil

rights; injustices of compulsory union “hiring

halls”; union violations of the merit principle in

public employment and academic freedom in educa-

tion; union violence against workers; injustices of

iii

union organizing; and violations of other existing

legal protections against union coercion.

All contributions to the National Right to Work Le-

gal Defense Foundation are tax deductible. Individ-

uals, corporations, companies, associations, and

foundations are eligible to support the work of the

Foundation through tax deductible gifts. In addition

to cash donations, the Foundation accepts contribu-

tions for gift annuities, bequests, stocks, bonds, ap-

preciated real estate, life insurance policies, and the

dividends paid on those policies.

This guide is intended to provide accurate and au-

thoritative information, at the time it is published,

for general educational purposes only and is not in-

tended to provide legal advice or services. Facts and

legal principles applicable to specific situations may

vary. Any person with a legal problem should con-

sult competent legal counsel and should not rely on

this guide in making any legal decisions.

iv

v

TABLE OF CONTENTS

What This Manual Covers i

About the Right to Work Principle,

the Foundation, and This Manual ii

An Introduction to Charter School

Employee Rights When There Is a

Union In, or Trying to Get Into,

Your Charter School Workplace 1

Charter School Employee Rights

in Three Minutes 5

What Are My Rights if the Union Is

Conducting a “Card Check” or

Organizing Drive at My Charter

School Workplace? 8

If There Is a Union in My Charter

School Workplace, Can I Be Required

to Be a Union Member or Pay Dues to

a Union? 12

When Can I Resign My Union

Membership? 15

How Do I Cut Off the Use of My Dues

for Politics and Other Non-bargaining

Activities if I Am Forced to Pay Fees to

a Union? 18

What if I Want to Work During a Strike? 20

vi

TABLE OF CONTENTS (CONTINUED)

What if I Am a Victim of

Union Violence? 28

What Is a Decertification Election? 28

What if I Have a Religious

Objection to Joining or Financially

Supporting a Union? 32

If I Believe My Rights Have Been

Violated by Compulsory Unionism

Abuses, Can I File My Own Unfair

Labor Practice Charges Against the

Union or Employer with the NLRB

or a State Agency? 33

Appendix A: A Brief Outline of

U.S. Supreme Court Precedent

Concerning Compulsory Unionism 35

Appendix B: Map of Right to

Work States 49

Appendix C: Sample Card Check

Revocation Letter 50

Appendix D: Petition Against

Union “Representation” 54

Appendix E: Sample Resignation/

Objection Letter 56

vii

TABLE OF CONTENTS (CONTINUED)

Appendix F: Sample Letter of

Union Resignation and Dues

Revocation in Right to Work States 62

Appendix G: List of Nonchargeable

Expenses 66

Appendix H: Sample Letter

Objecting to Payment of Full

Union Dues 68

Appendix I: State Law on

Decertification Elections for Public

Sector Employees 74

Appendix J: How to Start a

Decertification Election under

the NLRA 92

viii

1

AN INTRODUCTION TO CHARTER

SCHOOL EMPLOYEE RIGHTS

WHEN THERE IS A UNION IN, OR

TRYING TO GET INTO, YOUR

CHARTER SCHOOL WORKPLACE

The unionization of charter schools is increasing at

a rapid rate, having increased 444% from the previ-

ous decade (1992-2000) to the last decade (2001-

10). However, the actual number or percentage of

unionized charter schools varies greatly from state

to state. During the 2009-10 school year, 24 of the

40 states with charter schools had a least one charter

school that had a bargaining agreement with a un-

ion. All of the charter schools in Alaska, Hawaii,

Iowa, and Maryland were unionized, along with 171

in Wisconsin, 122 in California, and 42 in Ohio.

These unionized schools constitute 72% of the un-

ionized charter schools in the country. National Al-

liance for Public Charter Schools, “Unionized Char-

ter Schools: Data from 2009-10.”

However, most employees prefer a workplace

where they are free to discuss their terms and condi-

tions of employment directly with the employer,

without intervention by a third party. Bureau of La-

bor Statistics, U.S. Dept. of Labor, “Union Mem-

bers - 2011” News Release (Jan. 27, 2012).

2

The problem with the Soviet Union

was not its leaders or its employees;

it was the closed, uncompetitive eco-

nomic system that stifled its innova-

tion. We have the Soviet equivalent

in our schools; it’s a system that

shuns competition and thwarts

change. But in America, it’s the [un-

ion] collective bargaining agree-

ments that are the glue keeping the

monopoly together.

Eva Moskowitz, “Breakdown,” Education Next,

summer 2006 (Dr. Moskowitz is the former chair of

the New York City Council Education Committee

and founder & current CEO of Success Academy

Charter Schools, which operates 12 charter schools

in Harlem, the Bronx, Brooklyn and Manhattan).

Even if there is union involvement, most employees

also prefer a workplace in which union membership

and the payment of dues is voluntary, as this forces

the union hierarchy to be more accountable to the

rank-and-file workers. It also forces union officials

to sell the benefits of union representation and

membership to the individual employees, instead of

relying on threats, intimidation, and even firings to

gain financial support. “Public Opinion on Right to

Work,” http://www.nrtwc.org/pdfs/RTWpoll.pdf

(last visited April 10, 2012); Stan Greer, “Voluntary

Unionism Serves Workers, Not Bosses,” The Wash-

ington Times (Mar. 1, 2012).

3

When there is a union in, or trying to get into, the

workplace, the rights of charter school employees

are covered by labor and constitutional law. These

laws generally provide the same rights and protec-

tions to employees in the public and private sectors.

However, the details are somewhat different be-

tween the public and private sectors. Therefore, to

know the exact rights in this situation, the charter

school employee must first determine if he or she is

a public sector or private sector employee.

If the employees are hired directly by a public char-

ter school, and their paycheck is issued by the char-

ter school, they most likely are considered a public

sector employee.1

However, if the employees work at a public charter

school but were hired directly by a private man-

agement company that provides educational ser-

vices to the public charter school, and the private

company issues their paycheck, then they most like

1 On January 10, 2011, the National Labor Relations Board,

which administers the National Labor Relations Act, 29

U.S.C. § 151 et seq., the basic law governing labor relations

for most private sector employees, invited briefs from interest-

ed parties on whether the Board has jurisdiction over charter

schools, specifically in Illinois. The Board’s pending decision

in Chicago Mathematics & Science Academy Charter School,

Inc. (13-RM-1768) could result in all charter school employ-

ees being considered private sector employees, instead of pub-

lic sector. Please contact a Foundation staff attorney at (800)

336-3600, or by email at [email protected], or go to

http://www.nrtw.org/en/legal.htm to determine the current

status of this case and said charter school employees.

4

ly are considered a private sector employee.2 Such

private companies that contract with charter schools

to provide educational services and employees,

which occur in less than 30% of charter schools, go

by different names: Charter Management Organiza-

tion (“CMO”); Education Management Organiza-

tion (“EMO”); etc.

Whether employed directly by the charter school or

at a charter school by a CMO/EMO, this guide will

refer to both types of employees as charter school

employees.

Public sector employees are governed by state labor

laws, and depending upon state law, may file a

charge with a state labor board or a claim in state

court. Private sector employees are governed by the

National Labor Relations Act (“NLRA”), and may

file unfair labor practice charges before the National

Labor Relations Board (“NLRB”). For further legal

advice, contact a Foundation staff attorney at (800)


http://www.nrtw.org/en/legal.htm.

2 In 2008, the NLRB declared that a private entity like a

CMO/EMO providing educational services to a public charter

school is a private employer within the Board’s jurisdiction.

See Charter Sch. Admin. Serv., 353 N.L.R.B. 394 (2008).

However, some regional directors have taken the opposite

view and the Board is again reviewing its 2008 decision.

Please contact a Foundation staff attorney at (800) 336-3600,

[email protected], or go to http://www.nrtw.org/en/legal.htm to

determine the current status of such charter school employees.

5

CHARTER SCHOOL EMPLOYEE

RIGHTS IN THREE MINUTES

No employee in the United States can legal-

ly be required to be a full-dues-paying, for-

mal union member. But under the NLRA,

and in many states, a charter school employ-

ee can be forced to pay the union fees or be

fired from his or her job if the charter school

or CMO/EMO has agreed to a compulsory

unionism requirement in the bargaining

agreement that requires the employee to ei-

ther join the union or pay it a fee as a condi-

tion of employment.

Under the NLRA, union members have the

right to resign from formal union member-

ship at any time. However, if they were pay-

ing their dues through payroll deductions,

the deduction authorizations they previously

signed may limit when those authorizations

can be revoked.

Charter school employees in the 23 states

covered by Right to Work laws3 cannot law-

fully be required to pay any union fees to

keep their jobs.

Because unions enjoy “exclusive representa-

tion,” they have a legal duty to fairly repre-

3 For a map of the 23 Right to Work States, see Appendix B,

page 49.

6

sent all charter school employees in their

bargaining units.4 Unions are legally re-

quired to represent non-member charter

school employees the same as members, but

unfortunately this duty is often breached.

If a law or bargaining agreement permits it,

charter school employees can be forced to

pay certain union fees. In such cases, a char-

ter school employee does not join the union

or resigns from union membership, and the

charter school employee notifies the union

in writing he or she does not want to pay full

dues, the required fee must be limited to the

union’s proven costs of collective bargain-

ing activities. This fee may not lawfully in-

clude things like political and ideological ac-

tivities, lobbying, public relations, illegal

strikes, etc.

Non-members with religious objections to

supporting a union have the right to ask the

union to redirect the forced fees amount to

charity. Religious objectors do not have to

belong to a specific church to claim this

right.

A union member who wants to work during

a strike should resign from union member-

ship before going to work. If the resignation

4 “Exclusive representation” is when a union has the right to

represent and collectively bargain for all employees in a bar-

gaining unit. In other words, it is a monopoly bargaining privi-

lege.

7

is mailed, the charter school employee

should not work until the day after the resig-

nation is postmarked. Otherwise, the charter

school employee could be fined by the un-

ion. If a charter school employee is already a

non-member, then he or she can work at will

during a strike and not be lawfully fined.

Union members who work during a strike

may be fined.

Many charter school employees have a legal

right to petition for an election to oust an

unwanted union from their workplace or to

eliminate the union’s ability to collect forced

fees. If you want to do this, you should con-

tact a Foundation staff attorney at

(800) 336-3600, [email protected], or go to


Foundation attorneys have represented many

employees like you, and have even taken fif-

teen cases to the United States Supreme

Court to protect workers’ rights. If, after re-

viewing the information in this guide, you

are still unclear about your rights, or believe

that you need legal aid because union offi-

cials have violated these rights (as they fre-

quently do), contact a Foundation staff at-

torney at (800) 336-3600, [email protected],

or go to http://www.nrtw.org/en/legal.htm.

8

WHAT ARE MY RIGHTS IF THE

UNION IS CONDUCTING A

“CARD CHECK” OR ORGANIZING

DRIVE AT MY CHARTER

SCHOOL WORKPLACE?

If a union collects signed “authorization cards”

from 50% plus 1 of the charter school employees at

your workplace, your employer could, or may be

required to, recognize the union as the monopoly

bargaining representative of all charter school em-

ployees without a secret ballot election.

You have the legal right to: (1) not sign a union au-

thorization card; (2) revoke any authorization card

you may have signed; and (3) sign and circulate a

petition against union representation. You may be

denied the right to decertify, or remove, an unwant-

ed union for anywhere from six months to one year

after the employer’s recognition of it, and up to

three years if the employer and union sign a con-

tract. Lamons Gasket Co., 357 N.L.R.B. No. 72

(2011).

(1) You have a legal right to refrain from signing a

union authorization card. Whether you wish to sign

a union authorization card is completely up to you.

It is unlawful for an employer or a union to threaten

or coerce any employee to sign a union authoriza-

tion card or to misrepresent the purpose of the card.

https://www.nlrb.gov/case/16-RD-001597

https://www.nlrb.gov/case/16-RD-001597

9

For example, it is unlawful for a union or employer

to tell you that if you do not sign a card, you will be

fired when the union becomes the monopoly bar-

gaining representative. You should also be wary of

union propaganda that claims, “We already have a

majority of signed cards, and we want you to sign in

order to show the employer that we really have a

unanimous workforce.” If the union truly had a ma-

jority of signed cards, it likely would have already

demanded “exclusive representation” status from

the employer, and not waste time collecting more

signatures.

(2) You have a legal right to revoke any union au-

thorization card that you have signed. It is illegal for

a union to restrict your right to revoke such a card.

You may revoke it by signing a letter, card, petition,

or other document stating that you do not support

the union, or that you support another union. To

possess proof of delivery, you should send the letter

by certified mail, return receipt. For a sample letter

to revoke an authorization card, see Appendix C,

page 50.

Under the NLRB’s “dual card” doctrine, when a

charter school employee signs two documents with

conflicting statements of union support—for exam-

ple, signing a card in favor of union representation

and then signing another card against representa-

tion—then neither document establishes valid proof

of the employee’s preference for union representa-

tion. See Parkwood Developmental Center. Inc.,

347 N.L.R.B. 974 (2006); Le Marquis Hotel, LLC,

340 N.L.R.B. 485 (2003). Basically, a charter

10

school employee’s signature on a card or petition

against union representation invalidates any union

authorization card he or she signed earlier, or signs

in the future, for up to one year. Therefore, if 50%

or more of charter school employees in a bargaining

unit sign a card or petition against union representa-

tion, it is mathematically impossible for the union to

organize your school or CMO/EMO via a “card

check” for one year.

There is no requirement to inform the union or em-

ployer of your opposition to union representation

for your prior union authorization card to be consid-

ered invalid as a matter of law. However, if you fail

to inform the union or employer that you revoked

the union authorization card you signed, they may

count you as a union supporter during any card

count. Therefore, you should contact a Foundation

staff attorney at (800) 336-3600, [email protected], or

go to http://www.nrtw.org/en/legal.htm, to decide

whether you should notify, in writing, the union or

your employer, or both, of your revocation to ensure

that they know your union representational prefer-

ence.

(3) You have a legal right to sign and circulate cards

or petitions against union representation. You have

the legal right to campaign against union represen-

tation if you choose, provided that it is done on non-

work time (such as during work breaks) and in non-

work locations (such as in break or lunch rooms).

An employer cannot discriminate against you or

other charter school employees based on your oppo-

sition to or support of union representation, if done

11

on non-work time in non-work areas. If you oppose

union representation, signing and circulating such a

petition may be the most important way to exercise

your legal right to refrain from union representation.

For a sample petition, see Appendix D, page 54.

Every charter school employee has a protected legal

right to decide whether to sign a union authorization

card, free from threats, restraint, harassment, coer-

cion, or misrepresentation. The Foundation takes no

position about how you should exercise your right

to join or refrain from joining a union. The Founda-

tion simply wants all charter school employees to

make this choice in an atmosphere free of restraint,

threats, and coercion.

If you have questions about your rights when a un-

ion is conducting a “card check” campaign or at-

tempting to organize your charter school workplace,

you should contact a Foundation staff attorney at

(800) 336-3600, or by email at [email protected], or

go to http://www.nrtw.org/en/legal.htm, to get an-

swers or assistance in dealing with the appropriate

state agency, court, or NLRB in taking action

against the individuals or entities that are interfering

with your rights.

12

IF THERE IS A UNION IN MY

CHARTER SCHOOL WORKPLACE,

CAN I BE REQUIRED TO BE A UNION

MEMBER OR PAY DUES TO A UNION?

No. You cannot be required to be a union member

in any state. But, depending upon in which state

you work, you may be required to pay monies to a

union.

As recognized by the United States Supreme Court

in the Foundation-supported cases of Abood v. De-

troit Board of Education, 431 U.S. 209 (1977), and

Communications Workers v. Beck, 487 U.S. 735

(1998), you cannot be required to be a union mem-

ber or pay full union dues to keep your job in any

state. If you work in a Right to Work state, you can-

not be required to join the union as a member or be

required to pay anything to the union unless you

choose to become a voluntary union member. For a

map of the 23 Right to Work States, see Appendix

B, page 49.

However, in a non-Right to Work state, as a condi-

tion of employment (keeping your job), you can be

required to pay a fee equal to the union’s proven

expenses related to collective bargaining, contract

administration, and grievance adjustment. This

forced fee cannot lawfully include the union’s ex-

13

penses for things such as political and ideological

activities, lobbying, public relations, illegal strikes,

etc. Therefore, if the collective bargaining agree-

ment says you must be a union member or pay full

union dues to keep your job, it is unenforceable as

written. As an objecting non-member of the union,

you can only be required to pay the reduced fee

amount that represents the union’s bargaining costs.

Except in extraordinary cases, the union’s costs of

collective bargaining, contract administration, and

grievance adjustment do not equal the amount of

full union dues.

In the Foundation-supported case of Chicago

Teachers Union v. Hudson, 475 U.S. 292 (1986),

the United States Supreme Court held that a public

employer and union that agree to a compulsory un-

ionism requirement must establish procedural safe-

guards to protect your right as a non-member to on-

ly pay a reduced fee that covers the union’s bargain-

ing costs.

The mandatory safeguards provided in Hudson in-

clude all of the following:

notice of independently audited financial in-

formation explaining how the agency fee

was calculated, and providing an opportuni-

ty to object and pay less than full dues;

an opportunity to challenge the reduced

agency fee amount before an impartial deci-

sion-maker; and

14

the right to place the contested agency fee

amount in escrow to prevent the union from

illegally using your money while a decision

in the proper agency fee amount is pending.5

5 As ruled by California Saw and Knife Works, 320 N.L.R.B.

224 (1995), enforced, 133 F.3d 1012 (7th Cir. 1998), the fol-

lowing procedural safeguards must be provided to private sec-

tor employees:

the union must inform all employees that they have a

right to be non-members;

the union must inform employees that non-members

have the right to object to paying for union activities

unrelated to the union’s duty as a collective bargain-

ing agent; and that objectors have a right have their

fees reduced to exclude those activities;

the union must provide non-members with sufficient

information to enable them to make an intelligent de-

cision on whether to object;

the union must inform non-members about its proce-

dures for filing objections; and

if non-members object, the union must inform them

of the percentage of the reduction, how the reduction

was calculated, and that the objectors have a right to

challenge those figures.

If the union does not provide such procedural safeguards, or

you want to challenge the forced fee amount, you may either

bring a lawsuit in federal court for the union’s breach of duty

of its fair representation or file an unfair labor practice charge

at the nearest NLRB regional office. Either action must be

filed within six months of the offending conduct. Contact a

Foundation staff attorney at (800) 336-3600, [email protected],

or go to http://www.nrtw.org/en/legal.htm, if you are interest-

ed in pursuing these remedies.

15

As a non-member, you are still fully covered by all

of the provisions in the collective bargaining

agreement negotiated between the union and your

employer. The union is obligated to represent you

fairly. You are still entitled to receive all benefits

provided in the collective bargaining agreement,

which the employer must offer to all employees

(e.g., wages, seniority, vacations, pensions, health

insurance).6

Under the NLRA and most state labor laws, as a

union non-member, you can be kept from participat-

ing in internal union elections or meetings, voting in

collective bargaining ratification elections,7 or par-

ticipating in other “internal” union activities. How-

ever, the union cannot discipline you for any of

your conduct as a non-member.

WHEN CAN I RESIGN MY UNION

MEMBERSHIP?

Sometimes unions, in their constitution and bylaws

or in collective bargaining agreements, attempt to

impose limits on the right of members to resign.

6 If the union offers “members-only” benefits, as a non-

member you will most likely not receive those benefits. You

also cannot be compelled to pay for members-only benefits for

which you are not eligible.

7 This does not include decertification elections. As a non-

member, you are still entitled to vote in a decertification elec-

tion.

16

However, under Abood v. Detroit Board of Educa-

tion, 431 U.S. 209 (1977), it necessarily follows

from the U.S. Supreme Court’s decision that public

sector employees cannot constitutionally be pre-

vented from resigning from their union at any time.

In addition, the NLRA and some state laws guaran-

tee employees the right to resign. If you are unsure

about whether you can resign or if a union is pre-

venting you from resigning, contact a Foundation

staff attorney at (800) 336-3600, [email protected], or

go to http://www.nrtw.org/en/legal.htm.

The decision whether to resign is yours alone. As a

non-member you are not subject to union rules and

discipline. However, the union must continue to

represent you and all union non-members fairly,

without discrimination, in all collective bargaining

matters. If you are a non-member, you cannot be

denied any benefits under the collective bargaining

agreement with the employer because of non-

membership.

In addition, as a non-member you have the right to

object to paying a forced fee equal to membership

dues. After objecting, you should only pay a re-

duced fee that is the portion of union dues covering


grievance adjustment. As an objecting non-member,

you cannot be required to pay for members-only

benefits.

If you work in a non-Right to Work state, and state

law or the collective bargaining agreement includes

a provision that requires charter school employees

17

to join the union or pay union fees, after you have

resigned union membership, you only are legally

required to pay the reduced fee. For a sample union

resignation and objection letter that can be used in a

non-Right to Work state where state law or the con-

tract does require you to join the union or pay union

fees, see Appendix E, page 56.

If you work in a Right to Work state or where state

law or the collective bargaining agreement does not

contain a forced unionism clause, once you resign

you have no financial or other obligations to the un-

ion.8 For a sample resignation letter in these two

scenarios, see Appendix F, page 62.

Whichever letter you use, verify whether there are

instructions in the union’s constitution and bylaws

about to whom to send the resignation letter. More-

over, although the sample resignation/objection let-

ter says that your objection is continuing and per-

manent, some unions do not honor this provision

and require you to annually renew your objection.

The courts are inconsistent on whether this annual

objection requirement is legal. Contact a Founda-

tion staff attorney at (800) 336-3600, or by email at

[email protected], or go to

8 However, if you have signed a dues deduction authorization

card, the card may limit when you can revoke authorization of

payroll deduction of union dues. Therefore, even though you

submit a valid resignation letter, it may not automatically re-

voke your dues deduction authorization. You may have to wait

and resubmit a separate revocation letter during the actual time

frame for revocation listed on the authorization card.

http://www.nrtw.org/rtws.htm

18

http://www.nrtw.org/en/legal.htm, to determine

whether you need to annually renew your objection.

HOW DO I CUT OFF THE USE OF MY

DUES FOR POLITICS AND OTHER

NON-BARGAINING ACTIVITIES

IF I AM FORCED TO PAY FEES

TO A UNION?

NOTE: You must be a non-member to possess the

rights discussed in this section. If you are currently

a union member, you must first become a non-

member, and then object in order to receive the dues

rebate or reduction. To learn how to resign your

membership, see the previous section, “WHEN CAN

I RESIGN MY UNION MEMBERSHIP?” page 15.

In non-Right to Work states, see Appendix B, page

49, you have the right to cut off the portion of union

dues used for political and non-bargaining activities

by filing a written objection with the union.9 This is

true even if the employer, the union, or the collec-

tive bargaining agreement says otherwise. Abood v.

Detroit Board of Education, 431 U.S. 209 (1977),

held that a reduced fee, reflecting only the union’s

expenses for collective bargaining, contract admin-

istration, and grievance adjustment, is the only fee

you, as a union non-member, can be required to pay

9 In Right to Work states, non-member employees have the

right to stop paying all dues and fees to the union.

19

as a condition of employment in non-Right to Work

states.10

To ensure that your right to pay the reduced union

fee is adequately protected, the United States Su-

preme Court, in Chicago Teachers Union v. Hud-

son, 475 U.S. 292 (1986), established mandatory

procedures the employer and union must have in

place.

The safeguards provided in Hudson include all of

the following:

an independent audit of the union’s financial

information notice explaining how the

forced fee was calculated, and providing an

opportunity to object and pay the reduced

amount rather than full dues;

an opportunity to challenge the forced fee

amount before an impartial decision-maker;

and

the right to place the contested forced fee

amount in escrow to prevent the union from

illegally using the money while a decision

on the proper amount is pending.11

10

For charter school employees that are hired by a private

CMO/EMO employer, the United States Supreme Court held

that this right was protected by the NLRA in Communications

Workers v. Beck, 487 U.S. 735 (1998), another Foundation

supported lawsuit.

11

If you are a private sector charter school employee, see note

5, supra.

20

In the Foundation-supported case Lehnert v. Ferris

Faculty Association, 500 U.S. 507 (1991), the Unit-

ed States Supreme Court provided guidelines for the

types of expenses that are or are not chargeable to

union non-members. For a list of union expenses

that are not chargeable to union non-members, see

Appendix G, page 66.

If you are a non-member employed in a non-Right

to Work state where state law or the collective bar-

gaining agreement requires you to pay union fees,

see Appendix H, page 68, for a sample objection

letter allowing you to pay only the reduced forced

fee. Contact a Foundation staff attorney at (800)


http://www.nrtw.org/en/legal.htm, if you need assis-

tance in drafting or sending your objection letter.

WHAT IF I WANT TO WORK

DURING A STRIKE?

In many states, strikes by public sector employees

are illegal. If that is true in your state, then you

may have to work during a strike to avoid possible

penalties for violating the law. However, many

strikes under the NLRA, which applies to private

sector employees, are legal.

If you want to work during a strike, you must con-

firm you are not a union member to avoid union

discipline. Many courts hold that unions have the

power to discipline their members for crossing a

picket line. Such discipline can include imposing a

21

significant fine that the union can collect by suing

the employee in state court. To avoid such conse-

quences, you should not cross the picket line while

remaining a union member. If a strike is illegal,

however, the courts probably will rule that the un-

ion cannot lawfully fine members who obey the law

and work.

Should you work during the strike? This is a per-

sonal decision and the Foundation takes no position.

“Whether you have a right to strike depends either

upon your state’s law, if you are considered a public

sector employee, or upon the NLRA, if you are con-

sidered a private sector employee. If your employer

operates during a strike, you must decide what to do

based upon your own needs and the law. Do not let

anyone force you one way or the other. Contact a

Foundation staff attorney at (800) 336-3600, or by

email at [email protected] or go to

http://www.nrtw.org/en/legal.htm, if you need assis-

tance in determining whether a particular strike is

legal or not.

Can the union fine you if you work during the

strike? This depends on state law or whether you

are covered under the NLRA. If your state law per-

mits charter school employees to legally strike or

you are covered by the NLRA, then the union may

lawfully fine you for returning to work during a

strike before resigning from union membership. Un-

ion members are bound by their union’s constitution

and bylaws. In those documents, most unions pro-

vide that members who work during a lawfully-

called strike can be fined.

22

However, if you are considered a public sector em-

ployee due to your charter school employment and

your state law makes public sector employee strikes

illegal by way of prohibition, then in the event that

you fail to resign your union membership before

returning to work during an illegal strike, a court

most likely will not choose to enforce the relevant

penalty provision(s) of your union’s constitution

and bylaws.

Should you resign from union membership if you

work during a strike? Yes. Non-members are not

subject to a union’s constitution and bylaws. Non-

members cannot be fined or disciplined for working

during a strike. If you have not yet crossed the pick-

et line and desire to otherwise avoid all fines, then

do not cross the picket line until after midnight of

the day you mailed your resignation letter to the un-

ion via certified mail, return receipt. See the section,

“WHEN CAN I RESIGN UNION MEMBERSHIP?” page

15, for more details and a sample resignation letter.

Unions cannot lawfully discipline you for post-

resignation conduct once they receive notice of your

membership resignation. Attempts to bring internal

union charges against you for post-resignation con-

duct will be unsuccessful. If strikes by charter

school employees who are considered public sector

employees are illegal in your state, you may not

have to resign to avoid union fines for working.

However, resignation would strengthen your posi-

tion that you cannot lawfully be fined.

23

If you worked during a strike before resigning

your union membership, are you protected from

all fines? Not when strikes by charter school em-

ployees are legal. Under the NLRA, and in those

states where public sector strikes are legal, even if

you are now a non-member, the union can fine you

for pre-resignation conduct, but not post-resignation

acts. Fines are usually based on the number of days

you worked as a member during the strike. The

courts generally hold that fines cannot be excessive.

“Excessive” is not defined, but arguably, if the un-

ion’s fine exceeds the amount of money you earned

before resigning, it is excessive. If strikes by charter

school employees who are considered public sector

employees are illegal in your state, you probably

cannot lawfully be fined for working even before

you resign.

Can the union constitution prohibit you from

resigning during a strike? No. It necessarily fol-

lows from the United States Supreme Court’s deci-

sion Abood v. Detroit Board of Education, 431 U.S.

209 (1977), that public sector employees cannot

constitutionally be prevented from resigning from a

union. The NLRA and some state laws also guaran-

tee the right to resign.

What about the collective bargaining agree-

ment? Doesn’t it require you to be a member to

keep your job? No. Under Abood and Communica-

tions Workers v. Beck, 487 U.S. 735 (1998), you are

not required to be an actual union member to keep

your job, regardless of what the collective bargain-

ing agreement, the employer, or the union says. You

24

are only required to do one of two things. One, you

must only pay the union dues amount. Two, if you

are a non-member and object to the union using

your money for non-collective bargaining purposes

and notify the union in writing, then you only must

pay the reduced fee reflecting union expenses for


grievance adjustment.

In Right to Work states, and in a few other states,

any agreement requiring a public sector employee

to join or pay money to a union is illegal. For a map

of the 23 Right to Work states, see Appendix B,

page 49.

If you resign your union membership, what

rights will you lose? You will not lose any rights

under the collective bargaining agreement, for ex-

ample, seniority. The union must represent you fair-

ly in bargaining and grievance handling regardless

of whether you are a union member. You will lose

only those rights that are available to members un-

der the union’s constitution, such as voting in union

elections, and you may lose the right to vote on the

collective bargaining agreement’s ratification. You

may also lose your right to continue in any union

pension plans that are based on union membership

rather than service with your employer as an em-

ployee benefit.

25

If you resign your union membership, can you

rejoin the union after the strike is over? That de-

pends upon the union and its constitution and by-

laws. The law does not require a union to permit a

non-member who has crossed a picket line to rejoin.

Often unions refuse to allow so-called “strikebreak-

ers” to rejoin. There are some instances where un-

ions require strikebreakers to pay large fines to re-

join. You should assume that, if you resign and

cross the picket line, you will not be allowed to re-

join the union. However, even if you do not rejoin,

the union must continue to represent you fairly in


grievance adjustment. You also have the same

rights as union members under the collective bar-

gaining agreement.

How do you resign? See Appendix E, page 56, for

a sample union resignation/objection letter. You

may eventually have to prove when your resigna-

tion letter was received. Therefore, it is recom-

mended that you send the letter by certified mail,

return receipt; by fax and retain the confirmation

slip the facsimile machine produces; or by hand-

delivery to a union officer with a friendly witness

present.

What rules apply if the union attempts to fine

you? Under the law that generally applies to union

disciplinary proceedings, you may not be fined or

otherwise disciplined as a member, unless you are

served with specific written charges, given a rea-

sonable time to prepare your defense, and afforded

a full and fair hearing. Within these limitations, a

26

union’s constitution and bylaws determine the rules

for disciplinary action.

What should you do if specific charges are

served on you by the union, if you resigned be-

fore you went back to work? If you have clear

proof that you resigned before returning to work,

immediately show the evidence to the union and ask

it to dismiss the charges before the hearing. If the

union persists under those circumstances, it will

violate the law, and you should contact Foundation

staff attorneys at (800) 336-3600, [email protected],

or go to http://www.nrtw.org/en/legal.htm to get

advice on how to proceed.

What should you do if specific charges are

served on you by the union, if you did not resign

before you went back to work? If you went back

to work during a strike before resigning, or worked

and never resigned, you should attend the union-

scheduled hearing and raise any potential defenses.

It is also best to exhaust any appeals process availa-

ble under the union’s constitution and bylaws. Pos-

sible defenses include that the proposed fines are

excessive or you were told that you could not resign

during the strike. If your state makes public sector

employee strikes illegal by way of prohibition, and

due to your charter school employment you are con-

sidered a public sector employee, then that defense

should be raised. It is highly recommended to con-

tact either Foundation staff attorneys at (800) 336-

3600, or by email at [email protected], or go to

http://www.nrtw.org/en/legal.htm, or other experi-

enced attorneys to determine possible defenses.

27

How can the union collect its fines if it finds you

guilty for working during a strike while still a

member? The union cannot have you fired for re-

fusing to pay fines. The union’s only recourse is to

sue you for the fine in state court. The union may

lawfully do this if strikes by charter school employ-

ees are legal in your state or you are considered a

private sector employee under the NLRA. In these

types of lawsuits, you have the right to raise any

defenses brought up in the union’s internal proceed-

ings, provided that you exhausted internal union

appeals.

What should you do to protect yourself from

harassment and violence? Whatever you decide

about resigning and working during a strike, you

should keep as low a profile as possible. You should

also attempt to maintain existing cordial relation-

ships with fellow workers on both sides of the pick-

et line. Avoid the zealots! Should you return to

work, keep in close touch with other charter school

employees who are working during the strike,

providing each other support and sharing infor-

mation. Also, if you work during a strike, it is rec-

ommended that you get an unlisted telephone num-

ber; keep a diary of all strike-related threats and in-

cidents of harassment and violence (who, where,

what, when, names of witnesses, etc.); and take

photographs of your private property, such as home

and car, to document any damage if you become a

victim of union violence. If you begin to receive

harassing phone calls, consider installing Caller-ID

on the home phone. You should report all threats

and incidents of harassment and violence to your

28

employer and the local police. If you are the victim

of union violence, contact Foundation staff attor-

neys at (800) 336-3600, [email protected], or go to


WHAT IF I AM A VICTIM

OF UNION VIOLENCE?

If you or someone in your family is or was a victim

of union violence within the past three years, please

contact Foundation staff attorneys at (800) 336-

3600, or by email at [email protected], or go to


WHAT IS A DECERTIFICATION

ELECTION?

Most employees prefer a workplace where they are

free to discuss their terms and conditions of em-

ployment directly with their employer, without in-

tervention by a third-party. They also prefer a

workplace in which union membership and the

payment of dues is voluntary, as this forces the un-

ion hierarchy to be more accountable to the rank-

and-file workers. Instead of relying on threats, in-

timidation, and even firings to gain financial sup-

port, union officials have to sell the benefits of un-

ion representation and membership to the individual

employees.

29

“Exclusive representation” refers to a union’s right

to represent and collectively bargain for all employ-

ees in a bargaining unit. It is actually a government-

granted monopoly bargaining privilege giving union

officials the power to negotiate contracts that you

and other charter school employees may not like

while barring you from negotiating your own terms

of employment. Except in Right to Work states, col-

lective bargaining agreements almost always in-

clude a provision mandating that employees be fired

for not paying fees to a union they do not want to

support, or mandating automatic deduction of union

fees.

A decertification election is an election in which

employees vote to revoke the union’s certification

as the monopoly bargaining representative with

their employer. In effect, the union is voted out of

the workplace and any requirement that non-

members must pay fees to the union is revoked.

State law varies as to the rules for conducting a de-

certification election for charter school employees

who are considered public sector employees. To see

a particular state’s laws regarding such elections,

see Appendix I, page 74. If you do not see your

state listed, your state most likely has no decertifi-

cation law for charter school employees. The NLRA

governs decertification elections for private sector

employees.

According to the NLRA, as interpreted by the

NLRB, and most state bargaining laws, there are

several requirements as to when you may file for a

30

decertification election. The first rule is the “certifi-

cation bar,” which states that decertification elec-

tion petitions cannot be filed for at least one year

after a union either wins a certification election or is

voluntarily recognized by the employer.

Another rule is the “contract bar,” under which de-

certification election petitions cannot be filed during

the first three years of a bargaining agreement, ex-

cept during a specific 30-day “window period.” In

most workplaces, the 30-day “window period” is 60

to 90 days prior to the collective bargaining agree-

ment’s expiration date or three-year anniversary,

whichever is first. In other words, decertification

petitions may be filed any time after a contract ex-

pires or is more than three years old.12

However, if

the employer and union enter into a new collective

bargaining agreement, then another three-year “con-

tract bar” begins and prevents the filing of any de-

certification petitions. Therefore, if the “window

period” comes and goes with no petition filed, char-

ter school employees may have to wait another

three years before requesting a decertification elec-

tion.

Under the NLRA and most state laws, if 30% or

more of employees in a bargaining unit sign a de-

12

If a new employer takes over near the expiration of the bar-

gaining agreement or after the contract has expired, the union

has a “reasonable time” to bargain with the new employer,

even if the contract had expired months ago. Contact Founda-

tion staff attorneys at (800) 336-3600, [email protected], or go

to http://www.nrtw.org/en/legal.htm if you are unsure when

you can collect signatures on a decertification petition or file

the petition.

31

certification petition, the NLRB or state labor board

will conduct a secret-ballot election to determine if

a majority of charter school employees in the unit

wish to decertify the union and stop it from any fur-

ther “exclusive representation.” If the petitioning

employees win that election, then the employer be-

comes non-union. As a result, all charter school

employees are free to bargain on their own, and ne-

gotiate their own terms and conditions of employ-

ment. Under the NLRB, if 50% or more of the em-

ployees in a bargaining unit sign a petition that they

no longer want to be represented by the union, the

employer can withdraw recognition without an elec-

tion if it wishes to do so, and neither the certifica-

tion nor contract bars applies.

The petition must be an employee-only effort. Em-

ployer assistance is unlawful and, if there is any, the

union will nullify the effort by filing an unfair labor

practice charge. For information on how to start a

petition for a decertification election under the

NLRA, see Appendix J, page 92. For all questions

about decertification, please contact Foundation

staff attorneys at (800) 336-3600, [email protected],

or go to http://www.nrtw.org/en/legal.htm.

32

WHAT IF I HAVE A RELIGIOUS

OBJECTION TO JOINING

OR FINANCIALLY

SUPPORTING A UNION?

If you work in a Right to Work state, you have the

right not to join and not to financially support un-

ions for any reason, including religious reasons. For

a map of the 23 Right to Work States, see Appen-

dix B, page 49.

In non-Right to Work states, sincere religious objec-

tors may have the right to redirect the entire union

fee to a non-union, non-religious charity.

To determine whether you have a sincere religious

objection to joining or supporting a union, and to

understand the steps you must take for accommoda-

tion of your religious beliefs in this area, call (800)

336-3600 or email [email protected] and request a

copy of “An Employee’s Guide—To Union Dues

and Religious Do Nots,” or go to

http://www.nrtw.org/ro1.htm.

33

IF I BELIEVE MY RIGHTS HAVE

BEEN VIOLATED BY COMPULSORY

UNIONISM ABUSES, CAN I FILE

MY OWN UNFAIR LABOR PRACTICE

CHARGES AGAINST THE UNION

OR EMPLOYER WITH THE NLRB

OR A STATE AGENCY?

Choosing to file charges against the union or against

your employer is a personal decision that the Foun-

dation neither recommends nor opposes.

However, if you want to file charges with the

NLRB or a state labor board against a union or your

employer concerning abuses of compulsory union

representation or forced membership or union fees,

please contact Foundation staff attorneys at (800)


http://www.nrtw.org/en/legal.htm for free legal ad-

vice regarding the correct procedures to use and the

best circumstances under which charges may be

filed.

34

35

Appendix A

A Brief Outline of U.S. Supreme

Court Precedent Concerning

Compulsory Unionism

1937—Virginian Railway v. System

Federation No. 40, 300 U.S. 515; and

National Labor Relations Board v.

Jones & Laughlin Steel Corp., 301 U.S. 1

The Court held that compulsory collective bargain-

ing is constitutional, but declined to address the

constitutionality of exclusive representation because

these cases were brought by employers, not em-

ployees forced to accept a union as their exclusive

bargaining representative.

1944—J.I. Case Co. v. National Labor

Relations Board, 321 U.S. 332; and

Order of Railroad Telegraphers v. Railway

Express Agency, Inc., 321 U.S. 342

The Court interpreted the National Labor Relations

and Railway Labor Acts as prohibiting individual

employees from negotiating their own terms and

conditions of employment where an exclusive bar-

gaining representative has been recognized. Consti-

tutional questions were not raised.

36

Appendix A (continued)

1944—Steele v. Louisville & Nashville

Railroad, 323 U.S. 192

The Court recognized that exclusive representation

presents constitutional problems, but again ducked

the issue by holding that exclusive representatives

have a duty of representing non-members “fairly.”

1949—Lincoln Federal Labor Union v.

Northwestern Iron & Metal Co., 335 U.S.

525; and American Federation of Labor v.

American Sash & Door Co., 335 U.S. 538

The Court ruled that state Right to Work laws are

constitutional.

1949—Algoma Plywood Co. v. Wisconsin

Board, 336 U.S. 301

The Court held that the National Labor Relations

(“Wagner”) Act permitted state Right to Work laws

even before Congress passed the 1947 Taft-Hartley

Act amendments.

37


1954—Radio Officers’ Union v. National

Labor Relations Board, 347 U.S. 17

The Court ruled that compulsory unionism agree-

ments may not be used “for any purpose other than

to compel payment of union dues and fees,” that is,

that employees may not be required to be formal

union members and abide by internal union rules to

keep their jobs.

1956—Railway Employes’ Department v.

Hanson, 351 U.S. 225

The Court held that “union shop” agreements au-

thorized by the Railway Labor Act are constitution-

al, because the only condition of employment that

the Act authorizes is “financial support” of “the

work of the union in the realm of collective bargain-

ing.” The Court suggested that if compulsory dues

are used “for purposes not germane to collective

bargaining, a different problem would be presented”

under the First Amendment.

1961—Machinists v. Street, 376 U.S. 740

Again ducking constitutional questions, the Court

ruled that the Railway Labor Act prohibits unions

from using objecting non-members’ compulsory

38


dues for political purposes. The Court did not clear-

ly define political purposes, nor did it address

whether unions could lawfully use objectors’ mon-

ies for non-political activities unrelated to collective

bargaining. Justice Black dissented and predicted

that the Court’s rebate remedy would be ineffective.

He would have held the statute unconstitutional.

1963—Railway Clerks v. Allen,

373 U.S. 113

The Court found that, since unions hold all pertinent

facts and records, they must prove the proportions

of their expenses that are lawfully chargeable to ob-

jecting non-members. However, the Court reaf-

firmed Street’s rulings that only non-members who

notify their union that they object are entitled to re-

lief and that the appropriate remedies are refunds

and reductions in future exactions.

1963—National Labor Relations Board v.

General Motors, 373 U.S. 734

The Court reiterated that the “union shop” is “whit-

tled down to its financial core,” that is, unions may

require payment of initiation fees and dues as a

condition of employment, but may not require for-

mal membership.

39


1963—Retail Clerks Local 1625 v.

Schermerhorn, 373 U.S. 746 & 375 U.S. 96

The Court held that state Right to Work laws may

prohibit “agency shop” agreements under which

employees are required to pay fees to unions to de-

fray the costs of collective bargaining. In a second

decision in the same case, the Court ruled that the

state courts, not just the National Labor Relations

Board, can enforce state Right to Work laws. (The

National Right to Work Committee financed this

case in the Supreme Court for the non-member

plaintiffs.)

In 1968 the National Right to Work Legal

Defense Foundation was established. (Un-

less otherwise noted, all subsequent cases

listed were brought by Foundation attor-

neys.)

1976—City of Charlotte v. Firefighters

Local 660, 426 U.S. 283

The Court ruled that a public employer is not con-

stitutionally obligated to provide payroll deductions

for union dues. The Foundation was not involved in

this case.

40


1976—Oil Workers v. Mobil Oil Corp., 426 U.S. 407

The Court held that the employees’ “predominant

job situs” determines whether a state Right to Work

law applies, and that seamen employed primarily on

the high seas are not protected by the Right to Work

law of the state in which they were hired. The

Foundation filed an amicus brief urging that Texas’

Right to Work law protected the seaman.

1976—City of Madison Joint School

District No. 8 v. Wisconsin Employment

Relations Commission, 429 U.S. 167

The Court ruled that a state may not constitutionally

require school boards to prohibit non-union teachers

from speaking against agency shop agreements at

public meetings. The Foundation filed an amicus

brief supporting the non-union teachers’ free speech

rights.

1977—Abood v. Detroit Board of

Education, 431 U.S. 209

A six-member majority of the Court rejected argu-

ments that requiring public employees to pay agen-

cy fees to keep their jobs violates the First Amend-

ment. The Court ruled that the agency shop as such

41


is constitutionally valid, but only “insofar as the

service charges are applied to collective-bargaining,

contract administration, and grievance-adjustment

purposes.” The Court unanimously agreed that “a

union cannot constitutionally spend [objectors’]

funds for the expression of political views, on be-

half of political candidates, or toward the advance-

ment of other ideological causes not germane to its

duties as collective-bargaining representative.”

1979—Smith v. Arkansas State Highway

Employees, 441 U.S. 463 (per curiam)

The Court held that the “First Amendment does not

impose any affirmative obligation on the govern-

ment . . . to recognize [a labor] association and bar-

gain with it.” The Foundation was not involved in

this case.

1983—Knight v. Minnesota Community

College Faculty Association, 460 U.S. 1048

Without an opinion giving its reasons, the Court

affirmed a lower court decision rejecting arguments

that exclusive representation of public employees

by a union such as the National Education Associa-

tion is unconstitutional because it forces association

with a political action organization.

42


1984—Minnesota State Board for

Community Colleges v. Knight,

465 U.S. 271

The Court ruled that a state may constitutionally bar

non-members from participating in their public em-

ployers’ “meet and confer” sessions with the em-

ployees’ exclusive bargaining representative on pol-

icy questions relating to employment, but outside

the scope of mandatory collective bargaining.

1984—Ellis v. Railway Clerks,

466 U.S. 435

The Court held that the Railway Labor Act not only

prohibits coerced financial support of union politics

and ideological activities, but also coerced support

of other activities unrelated to collective bargaining

and contract administration, such as organizing, liti-

gation not concerning objecting employees’ bar-

gaining unit, and the parts of union publications re-

porting on non-chargeable activities. The Court also

ruled that a “union cannot be allowed to commit

dissenters’ funds to improper uses even temporari-

ly,” prohibiting “rebate” schemes under which un-

ions collect full dues, use part for improper purpos-

es, and only later refund that part to the employees.

43


1985—Pattern Makers v. National Labor

Relations Board, 473 U.S. 95

The Court recognized that the National Labor Rela-

tions Act guarantees workers the right to resign un-

ion membership at any time. The Foundation filed

an amicus brief urging this ruling.

1986—Chicago Teachers Union v.

Hudson, 475 U.S. 292

The Court unanimously held that First Amendment

due process requires that certain procedural safe-

guards be established before compulsory union fees

can be collected from public employees: adequate

advance notice of the fee’s basis (including an inde-

pendent audit), reasonably prompt impartial review

of non-members’ challenges, and escrow of

“amounts reasonably in dispute” while challenges

are pending. Because the Court had earlier ruled in

Railway Employes’ Department v. Hanson that con-

stitutional limitations apply to the Railway Labor

Act, these procedural safeguards also must be estab-

lished by railway and airline unions.

44


1988—Communications Workers v. Beck, 487 U.S. 735

The Court determined that Congress intended the

substantially “identical” authorizations of compul-

sory unionism arrangements in the National Labor

Relations and Railway Labor Acts “to have the

same meaning.” The Court, therefore, held that the

former statute, like the latter, “authorizes the exac-

tion of only those fees and dues necessary to ‘per-

forming the duties of an exclusive representative of

the employees in dealing with the employer on la-

bor-management issues.’” As a result, private sector

employees have the same right not to subsidize un-

ion non-bargaining activities as railway, airline, and

public employees, and are entitled to the procedural

protections outlined in Chicago Teachers Union v.

Hudson.

1991— Lehnert v. Ferris Faculty

Association, 500 U.S. 507

Summarizing its earlier decisions from Hanson

through Ellis, the Court concluded that union activi-

ties are not lawfully chargeable to objecting non-

members unless they both are “‘germane’ to collec-

tive-bargaining activity” and do “not significantly

add to the burdening of free speech that is inherent

in allowance of an agency or union shop.” Applying

45


this test, the Court ruled that objecting public em-

ployees may not be charged for litigation not direct-

ly concerning their bargaining unit, lobbying (ex-

cept for ratification or implementation of their col-

lective bargaining agreement), public relations ac-

tivities, and illegal strikes. However, the Court also

held that the First Amendment does not limit law-

fully chargeable bargaining-related costs to the ob-

jecting employees’ bargaining unit.

1998—Air Line Pilots Association v.

Miller, 523 U.S. 866

The Court ruled that non-members who do not

agree to union-established arbitration procedures

cannot be required to use those procedures before

bringing a federal court action challenging the

amount of their compulsory fees for collective bar-

gaining.

1998—Marquez v. Screen Actors Guild,

523 U.S. 866

The Court held that a union does not breach its duty

of fair representation “merely by negotiating” a

compulsory unionism provision that says that em-

ployees must be union “members in good standing”

as condition of employment without expressly ex-

plaining, in the agreement, that the National Labor

46


Relations Act does not permit unions and employers

to require that employees become formal union

members. Importantly, for the first time, the Court

declared that, if a union negotiates a compulsory

unionism provision, it must notify workers that they

may satisfy the provision’s requirement merely by

paying fees to support the union’s “representational

activities” in collective bargaining and contract ad-

ministration, without actually becoming members.

2007—Davenport v. Washington

Education Association, 551 U.S. 177

The Court unanimously ruled that, because unions

have no constitutional right to collect fees from

non-members, a state may require unions to obtain

affirmative consent before spending non-member

public employees’ forced fees on political activities.

The Court’s decision also reiterated that, as the

Court had decided in 1949, Right to Work laws are

constitutional.

2008—Chamber of Commerce v. Brown,

554 U.S. 60

The Court ruled that the National Labor Relations

Act preempts a state statute prohibiting companies

that receive state grants or program funds from us-

ing those monies to deter union organizing. Signifi-

47


cantly, the Court emphasized that the 1947 amend-

ment to the Act that guarantees the right to refrain

from union activities “calls attention to the right of

employees to refuse to join unions, which implies

an underlying right to receive information opposing

unionization.” The Foundation filed an amicus brief

that made this very point.

2009—Locke v. Karass, 555 U.S. 207

The Court held that the First Amendment permits a

local union to charge non-member public employ-

ees for national litigation expenses for other bar-

gaining units if the litigation is related to collective

bargaining or contract administration and the charge

is reciprocal in nature, i.e., if the national union and

other locals would similarly contribute to the cost of

litigation for the non-members’ unit should the need

arise. A concurring opinion by three Justices noted

that the Court’s decision did not decide what “reci-

procity” means or what burden a union has to estab-

lish true reciprocity, because in this case the parties

assumed that reciprocity existed.

48


2009—Ysursa v. Pocatello Education

Association, 555 U.S. 353

The Court held that a state may constitutionally

prohibit payroll deduction of contributions to union

political action committees by state and local gov-

ernment employees, because the First Amendment

“does not confer an affirmative right [for unions] to

use government payroll mechanisms for the purpose

of obtaining funds for expression.” The Foundation

joined an amicus brief urging that result.

49

Appendix B

Map of Right to Work States

A Right to Work law secures the right of employees

to decide for themselves whether to join or finan-

cially support a union. However, employees who

work in the railway or airline industries are not pro-

tected by Right to Work laws, and employees who

work on federal property may also not be protected,

depending on whether federal jurisdiction as to la-

bor relations is exclusive on that property.

50

Appendix C

Sample Card Check Revocation Letter

SAMPLE LETTER TO UNION: [NOTE: It is recommended to send this letter by

certified mail, return receipt.]

[You may want to send copies of this letter to offi-

cials of both the local union and the international

union.]

[insert your Name]

[insert your Mailing address]

[insert Date]

[insert Name of appropriate union officer]

[insert Name of union]

[insert Address of union]

Dear [insert Name of appropriate union officer]:

I write to inform you that I do not want to be “rep-

resented” by your union, do not wish to be a mem-

ber of your union, and do not support your union in

any manner. Please consider my opposition to rep-

resentation by your union to be permanent and con-

tinuing in nature.

51

Appendix C (continued)

I hereby revoke and rescind any union “authoriza-

tion” card, or any other indication of support for

your union, that I may have signed in the past. Any

such card or indication of support for your union is

null and void, effective immediately.

Please return to me any union authorization card

that I may have signed. Alternatively, please inform

me in writing that you are honoring this revocation

and rescission of support for your union.

Please be aware that refusing to honor my revoca-

tion and rescission will violate my rights under the

National Labor Relations Act. Moreover, represent-

ing to my employer (or any third party or “arbitra-

tor”) that I support representation by your union

will similarly violate my legal rights.

Sincerely,

[Name]

52


Sample Card Check Revocation Letter

SAMPLE LETTER TO EMPLOYER: [NOTE: It is recommended to send this letter by


[insert your Name]


[insert Date]

[insert Name of appropriate payroll department

management employee]

[insert Name of department responsible for pay-

roll deductions]

[insert Address of department responsible for

payroll deductions]

Dear [insert Name of appropriate payroll de-

partment management employee]:

Included in this letter is a copy of the letter I sent to

[insert Name of union involved] revoking and re-

scinding any union “authorization” card, or any oth-

er indication of support for this union that I may

have signed in the past. In addition, any such card

or indication of support for this union is null and

53


void, effective immediately. I want you to be fully

aware of my revocation.

Please contact me if there are any problems or con-

cerns with this request.

Thank you.

Sincerely,

[Name]

54

Appendix D

Petition Against Union

“Representation”

The undersigned employees do NOT want to be

represented by the _____________________ [FILL

IN NAME] Union, do NOT want to join the Union,

and do NOT support the Union in any manner.

To the extent that any of the undersigned employees

have ever previously signed a Union “authorization

card” or other indication of support for union repre-

sentation, the undersigned employees hereby

REVOKE that card, effective immediately. More

specifically, our employer, the Union, and all third

parties or arbitrators must take NOTICE that any

such card signed by an undersigned employee is

NULL and VOID.

Should our employer ever voluntarily recognize the

Union as the bargaining representative of employ-

ees, the undersigned employees hereby petition the

National Labor Relations Board13

to hold a

DECERTIFICATION ELECTION to determine

13

The NLRB covers private sector employees. If you are a

charter school employee that is considered a public sector em-

ployee, you would follow your state law as to where to file

this petition, and replace the name of the NLRB with the name

of the appropriate state labor board.

55

Appendix D (continued)

whether the majority of employees truly wish to be

represented by the Union.

_____________ _______________ _________

Name (Print) Signature Date

_____________ _______________ _________


_____________ _______________ _________


_____________ _______________ _________


_____________ _______________ _________


_____________ _______________ _________


_____________ _______________ _________

Name (Print) Signature Date*

*You may add more lines for names, signatures, and dates.

56

Appendix E

Sample Resignation/Objection Letter



[You must determine whether the union’s constitu-

tion and bylaws specify to whom a resignation must

be sent.]

[insert your Name]


[insert Date]





I hereby resign as a member of [Name of union].

My resignation is effective immediately. I will con-

tinue to meet my lawful obligation of paying a rep-

resentation fee to the union under its “union securi-

ty” agreement with [Name of employer].

57

Appendix E (continued)

Furthermore, I object to the collection and expendi-

ture of a fee for any purpose other than my pro rata

share of the union’s costs of collective bargaining,

contract administration, and grievance adjustment,

as is my constitutional right under Abood v. Detroit

Board of Education, 431 U.S. 209 (1977), and if

applicable, my statutory right under Communica-

tions Workers v. Beck, 487 U.S. 735 (1988).

Pursuant to Chicago Teachers Union v. Hudson,

475 U.S. 292 (1986), I request that you provide me

with my First Amendment and duty of fair represen-

tation procedural rights, including: reduction of my

fees to an amount that includes only constitutionally

chargeable costs; notice of the calculation of that

amount, verified by an independent certified public

accountant; and notice of the procedure that you

have adopted to hold my fees in an interest-bearing

escrow account and give me an opportunity to chal-

lenge your calculation and have it reviewed by an

impartial decision-maker.

[If you pay dues by payroll deduction, include

the following. Accordingly, I also hereby notify

you that I wish to authorize only the deduction from

my wages of representation fees limited to those

costs that are lawfully chargeable under the First

Amendment to the United States Constitution. If I

am required to sign a form to make that change,

please provide me with the necessary form.]

http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=431&invol=209




58


Please reply promptly to my request. Any further

collection or expenditure of dues or fees from me

made without the procedural safeguards required by

the First Amendment to the United States Constitu-

tion will violate my civil rights under the Federal

Civil Rights Act of 1871, 42 U.S. Code § 1983, or if

applicable, under the National Labor Relations Act,

and the U.S. Constitution.

Finally, this objection is permanent and continuing

in nature.

Sincerely,

[Name]

59


Sample Notice of Union

Resignation/Objection Letter



[insert your Name]


[insert Date]


management employee] [insert Name of department responsible for pay-

roll deductions]


payroll deductions]



Today I submitted my resignation from [Name of

the union]. A copy of my letter to the union is en-

closed. I will continue to meet my lawful obligation

of paying a representation fee to the union under its

60


“union shop” or “agency shop” agreement with

[Name of employer].

Furthermore, I object to the collection and expendi-

ture by the union of a fee for any purpose other than

my pro rata share of the union’s costs of collective

bargaining, contract administration, and grievance

adjustment, as is my right under Abood v. Detroit

Board of Education, 431 U.S. 209 (1977), and/or

Communications Workers v. Beck, 487 U.S. 735

(1988).


475 U.S. 292 (1986), I request that you ensure that

the union provides me with my procedural rights, as

outlined in my letter to the union. If it does not, I

ask that [Name of employer] provide them.


the following: Accordingly, I also hereby notify











61





law will violate my rights under the Federal Civil

Rights Act of 1871, 42 U.S. Code § 1983, or if ap-

plicable, under the National Labor Relations Act

and/or U.S. Constitution.

Sincerely,

[Name]

62

Appendix F

Sample Letter of Union Resignation

and Dues Revocation in

Right to Work States



[At the same time that you resign from the union,

you should also notify your employer.]

[insert your Name]


[insert Date]





I am employed by [Name of employer] in the Right

to Work state of [insert state’s name]. Effective

immediately, I resign from membership in the local

union and all of its affiliated unions.

63

Appendix F (continued)

Because I have resigned my membership in the un-

ion, you must now immediately cease enforcing the

dues check-off authorization agreement that I

signed. That dues check-off authorization was

signed solely in conjunction with, and in contempla-

tion of, my becoming a member of the union and, as

such, is no longer valid. See IBEW (Lockheed Space

Operations Co.), 302 N.L.R.B. 322 (1991); Wash-

ington Gas Light Co., 302 N.L.R.B. 425 (1991)

(employer in Right to Work state must cease dues

deduction upon receipt of resignation/revocation).

If you refuse to accept this letter as both an effective

resignation and an immediately effective dues

check-off revocation, I ask that you promptly in-

form me, in writing, of exactly what steps I must

take to effectuate my revocation of the dues check-

off authorization. More specifically, if you contend

that I must meet a “window period” in order to re-

voke my dues check-off authorization, I ask that you

promptly send me a copy of the actual dues deduc-

tion authorization form that I signed, and also tell

me specifically what “window period” dates I must

meet in order to revoke the dues check-off authori-

zation.

Sincerely,

[Name]

64


Sample Letter to Employer of Union

Resignation and Dues Revocation in

Right to Work States

SAMPLE LETTER TO EMPLOYER: [NOTE: It is recommended to send the letter by


[insert your Name]


[insert Date]




roll deductions]


payroll deductions]



I am employed by [Name of employer] in the Right

to Work state of [insert state’s name]. Effectively

immediately, I resign from membership in the local

union and all of its affiliated unions.

65


Because I have resigned my membership in the un-

ion, you must now immediately cease enforcing the

dues check-off authorization agreement that I

signed. That dues check-off authorization was

signed solely in conjunction with, and in contempla-

tion of, my becoming a member of the union and, as

such, is no longer valid. See IBEW (Lockheed Space

Operations Co.), 302 N.L.R.B. 322 (1991); Wash-

ington Gas Light Co., 302 N.L.R.B. 425 (1991)

(employer in Right to Work state must cease dues

deduction upon receipt of resignation/revocation).

If you refuse to accept this letter as both an effective

resignation and an immediately effective dues

check-off revocation, I ask that you promptly in-

form me, in writing, of exactly what steps I must

take to effectuate my revocation of the dues check-

off authorization. More specifically, if you contend

that I must meet a “window period” in order to re-

voke my dues check-off authorization, I ask that you

promptly send me a copy of the actual dues deduc-

tion authorization form that I signed, and also tell

me specifically what “window period” dates I must

meet in order to revoke the dues check-off authori-

zation.

Sincerely,

[Name]

66

Appendix G

List of Nonchargeable Expenses

Courts continue to sort out union expenses that are

chargeable and not chargeable to union non-

members. No union expense is chargeable to an ob-

jecting non-member unless the union proves it con-

cerns collective bargaining, contract administration,

and grievance adjustment before a neutral decision-

maker.

EXAMPLES OF NONCHARGEABLE EXPENSES

Political activities, including activities relat-

ed to ballot and bond issues.

Ideological activities.

Lobbying, unless necessary to ratify or fund

the collective bargaining agreement in a

non-member public employee’s bargaining

unit.

Public relations activities.

Litigation unrelated to collective bargaining

and bargaining-related litigation solely for

other bargaining units where the union does

not show a reasonable expectation that other

union affiliates will similarly fund litigation

for the non-member’s bargaining unit.

Engaging in illegal strikes.

67

Appendix G (continued)

All or most organizing and member recruit-

ment, depending on whether you are a pub-

lic or private sector employee.

Union “members only” benefits.

Portions of union publications reporting on

the foregoing activities.

SOURCES FOR THE EXAMPLES OF

NONCHARGEABLE EXPENSES

Abood v. Detroit Board of Education, 431

U.S. 209 (1977).

Ellis v. BRAC, 466 U.S. 435 (1984).

Lehnert v. Ferris Faculty Association, 500

U.S. 507 (1991).

Locke v. Karass, 555 U.S. 207 (2009).

Pirlott v. NLRB, 522 F.3d 423 (D.C. Cir.

2008). [Private sector organizing]






68

Appendix H

Sample Letter Objecting to

Payment of Full Union Dues



[insert your Name]


[insert Date]





I object to the collection and expenditure by the un-

ion of a fee for any purpose other than my pro rata

share of the union’s costs of collective bargaining,

contract administration, and grievance adjustment,

as is my right under Abood v. Detroit Board. of Ed-

ucation, 431 U.S. 209 (1977), and if applicable, my

statutory right under Communications Workers v.

Beck, 487 U.S. 735 (1988).

http://www.nrtw.org/foundation-won.htm#Abood


69

Appendix H (continued)


475 U.S. 292 (1986), I request that you provide me

with my First Amendment and duty of fair represen-

tation procedural rights, including: reduction of my

fees to an amount that includes only lawfully

chargeable costs; notice of the calculation of that

amount, verified by an independent certified public

accountant; and notice of the procedure that you

have adopted to hold my fees in an interest-bearing

escrow account and give me an opportunity to chal-

lenge your calculation and have it reviewed by an

impartial decision-maker.












http://www.nrtw.org/foundation-won.htm#Hudson

http://www.nrtw.org/foundation-won.htm#Hudson

70


law will violate my rights under the Civil Rights

Act of 1871, 42 U.S.C. § 1983, or if applicable, un-

der the National Labor Relations Act.

Finally, this objection is permanent and continuing

in nature.

Sincerely,

[Name]

71


Sample Notice of Letter Objecting to

Payment of Full Union Dues



[insert your Name]


[insert Date]




roll deductions]


payroll deductions]



Today I submitted my objection to [Name of the

union] regarding the collection and expenditure by

the union of a fee for any purpose other than my pro

rata share of the union’s costs of collective bargain-

ing, contract administration, and grievance adjust-

72


ment, as is my right under Abood v. Detroit Board

of Education, 431 U.S. 209 (1977), and if applica-

ble, my statutory right under Communications

Workers v. Beck, 487 U.S. 735 (1988).

A copy of my letter to the union is enclosed. I will

continue to meet my lawful obligation of paying a

representation fee to the union under its “union

shop” or “agency shop” agreement with [Name of

employer].


475 U.S. 292 (1986), I request that you ensure that

the union provides me with my procedural rights,

including those outlined in my letter to the union. If

it does not, I ask that [Name of employer] provide

them.













73





law will violate my rights under the Federal Civil

Rights Act of 1871, 42 U.S. Code § 1983, or if ap-

plicable, the National Labor Relations Act, and/or

U.S. Constitution.

Sincerely,

[Name]

74

Appendix I

State Law on Decertification Elections

for Public Sector Employees

The state laws mentioned below were last verified

in August 2010. These laws may have changed

since the verification date. For questions regarding

decertification laws in your state, contact Founda-

tion staff attorneys at (800) 336-3600,

[email protected], or go to


Alaska

Alaska law permits public employees to obtain an

election to decertify an exclusive bargaining repre-

sentative if “an employee or group of employees or

an organization acting in their behalf alleg[es] that

30 percent of the employees of a proposed bargain-

ing unit . . . assert that the organization which has

been certified or is currently being recognized by

the public employer as bargaining representative is

no longer the representative of the majority of em-

ployees in the bargaining unit.” Alaska Statutes

§ 23.40.100. A petition for a decertification election

must be presented to the Alaska Labor Relations

Agency on a form prescribed by the Agency, ac-

companied by a 30% showing of interest. See Alas-

ka Statutes § 23.40.100(c) & (e) for rules covering

when a decertification election can be held.

75

Appendix I (continued)

California

Public school (including charter school) employees

are covered by the Educational Employee Relations

Act (“EERA”) which outlines the procedures for

decertification. EERA requires the decertification

petition to be filed with the California Public Em-

ployment Relations Commission (“PERB”).

Persons must file a decertification petition with the

appropriate PERB regional office per PERB Regu-

lation 32075, and must accompany said petition

with proof of support of at least 30% of the employ-

ees in the established bargaining unit.

Connecticut

Connecticut law permits public employees to obtain

an election to decertify an exclusive bargaining rep-

resentative if a petition has been filed by an em-

ployee or group of employees alleging that a “sub-

stantial number of employees” assert that the em-

ployee organization which has been certified or is

currently being recognized by their employer as the

bargaining representative is no longer the repre-

sentative of a majority of employees in the unit.

Connecticut General Statutes Annotated § 7-

471(1)(ii). A petition for decertification must be

presented to the Connecticut State Board of Labor

Relations on a form prescribed by the Board.

76


Delaware

Delaware law permits public school employees to

obtain an election to decertify an exclusive bargain-

ing representative. According to state law:

A group of employees within the

bargaining unit may file a petition

with the Board for decertification of

the exclusive bargaining representa-

tive. The petition must contain the

uncoerced signatures of at least 30

percent of the employees within the

bargaining unit and allege that the

employee organization presently cer-

tified is no longer the choice of the

majority of the employees in the bar-

gaining unit. If a lawful collective

bargaining agreement of no more

than 3 years duration is in effect, no

petition shall be entertained unless

filed not more than 180 days nor less

than 120 days prior to the expiration

of such agreement. A decertification

petition also may be filed if more

than 1 year has elapsed from the date

of certification of an exclusive bar-

gaining representative and no collec-

tive bargaining agreement has been

executed.

Delaware Statutes Title 19, § 1311(b).

77


Employees may obtain a petition for a decertifica-

tion election from the Delaware Public Employment

Relations Board.

District of Columbia District of Columbia law permits public employees

to obtain an election to decertify an exclusive bar-

gaining representative: “The Board shall issue rules

and regulations which provide procedures for decer-

tification of exclusive representatives upon the re-

quest of 30 percent of the employees.” District of

Columbia Code § 1-617.10. A petition for decertifi-

cation filed by an employee shall be accompanied

by a showing that at least thirty percent (30%) of

the employees in the bargaining unit no longer de-

sire to be represented by the exclusive representa-

tive. Such petitions must be presented to the District

of Columbia Public Employee Relations Board

(“PERB”). The rules explaining the procedures and

petition contents required for filing include PERB

Rules 505.1 through 505.3 and 505.8.

Florida

Florida law permits public employees to obtain an


sentative. “Any employee or group of employees

which no longer desires to be represented by the

certified bargaining agent may file with the com-

mission a petition to revoke certification. The peti-

tion shall be accompanied by dated statements

signed by at least 30 percent of the employees in the

unit, indicating that such employees no longer de-

http://perb.dc.gov/

http://perb.dc.gov/

78


sire to be represented for purposes of collective bar-

gaining by the certified bargaining agent. The time

of filing said petition shall be governed by the pro-

visions of s[ection] 447.307(3)(d) relating to peti-

tions for certification.” Florida Statutes Annotated

§ 447.308(1).

A petition for a decertification election must be pre-

sented to the Florida Public Employees Relations

Commission (“PERC”) on a form prescribed by

PERC, accompanied by a 30% showing of interest.

Hawaii

Hawaii law permits public employees to obtain an


sentative stating “[a] petition to decertify or to

change the exclusive bargaining representative must

be supported by fifty percent of employees in an

appropriate bargaining unit, through verifiable writ-

ten proof of the names and signatures of employees.

Signatures of employees supporting such a petition

must be obtained within two months of the date of

the petition to be valid with the Board.” Hawaii Re-

vised Statutes Annotated § 89-7(a). A petition for

decertification must be filed with the Hawaii Labor

Relations Board, on a form prescribed by the Board.

Idaho

Note: The following statute uses the word “Deau-

thorization” but establishes a decertification proce-

dure. A petition in a union shop for an election to

79


determine whether there should be any union repre-

sentation must show at least thirty percent (30%) or

more of the employees in the unit covered by the

agreement desire such deauthorization. This petition

must be filed with the Idaho Department of Com-

merce and Labor and Industrial Services. Idaho

Administrative Code § 09.05.03.014.12.

Illinois

Illinois law has a separate statute which permits ed-

ucational employees to obtain an election to decerti-

fy an exclusive bargaining representative if “an em-

ployee or group of employees or any labor organi-

zations acting on their behalf alleging and present-

ing evidence that 30% or more of the employees in

a bargaining unit wish to be represented for collec-

tive bargaining or that the labor organization which

has been acting as the exclusive bargaining repre-

sentative is no longer representative of a majority of

the employees in the unit.” Illinois Statutes Chapter

115, § 5/7.

Unless a specific bar applies, decertification peti-

tions may be filed between January 15 and March 1

the year that the collective bargaining agreement

expires, or in the third year of an agreement that is

in effect for more than three years. For further in-

formation on decertification rules, see Illinois Ad-

ministrative Code § 1110.60 and § 1110.70.

http://adm.idaho.gov/adminrules/rules/05codearchives/IDAPA%2009/0503.pdf

http://adm.idaho.gov/adminrules/rules/05codearchives/IDAPA%2009/0503.pdf

80



sented to the Illinois Educational Labor Relations

Board (“IELRB”) on a form prescribed by the

IELRB.

Indiana

Indiana law permits certified school employees to


ing representative. “A petition may be filed by

twenty percent (20%) of the school employees in

any unit asserting that the designated exclusive rep-

resentative is no longer the representative of the ma-

jority of school employees in the unit.” Indiana

Code Annotated § 20-7.5-1-10(c)(3). A petition for

decertification must be filed with the Indiana Edu-

cational Employee Relations Board at the Indiana

Government Center, accompanied by a 20% show-

ing of interest.

Iowa

Iowa law permits public employees to obtain an


sentative. “The petition of a public employee shall

allege that an employee organization which has

been certified as the bargaining representative does

not represent a majority of such public employees

and that the petitioners do not want to be represent-

ed by an employee organization or seek certification

of an employee organization.” Iowa Code Annotat-

ed §§ 20.14.3 and 20.14.5(a). A petition for decerti-

fication election must be obtained and filed at the

Iowa Public Employment Relations Board, accom-

http://www.state.il.us/agency/ielrb/pdf/represnt.pdf

http://www.state.il.us/agency/ielrb/pdf/represnt.pdf

81


panied by a 30% showing of interest. Rules cover-

ing decertification, including when such a petition

may be filed are available at Iowa Code Annotated

§ 20.15.6.

Kansas Kansas law permits public employees to obtain an


sentative. The Kansas Public Employment Relations

Board “is authorized to hold elections to determine

whether . . . a recognized employee organization

should be decertified” when 30% or more of the

employees in a bargaining unit petition for a decer-

tification election. However, any petition calling for

such an election “shall be dismissed by the board

without determining the questions raised therein if

such petition is filed more than 150 days or less

than 90 days prior to the expiration date of an exist-

ing memorandum of agreement which governs the

terms and conditions of employment of the employ-

ees within the appropriate unit.” Kansas Statutes

Annotated § 75-4327(d).

A petition for decertification can be obtained and

filed at the Kansas Public Employee Relations

Board (“PERB”). See Kansas Administrative Regu-

lations § 84-2-7 for PERB’s rule covering decertifi-

cation of a public employee organization.

82


Maine Maine law states that municipal employees have a

right to not join a union. Maine Revised Statutes

Annotated Title 26, § 963. Maine law permits pub-

lic employees to obtain an election to decertify an

exclusive bargaining representative if 30% of the

employees in a bargaining unit petition for decerti-

fication. Maine Revised Statutes Annotated Title

26, § 967 (municipal employees). A petition for a

decertification election may be obtained and filed at

the Maine Labor Relations Board on a form provid-

ed by the Board.

Massachusetts Massachusetts law permits public employees to ob-

tain an election to decertify an exclusive bargaining

representative when “a petition filed by or on behalf

of a substantial number of the employees in a unit

alleg[es] that the exclusive representative therefore

no longer represents a majority of the employees

therein, shall investigate, and if it has reasonable

cause to believe that a substantial question of repre-

sentation exists, shall provide for an appropriate

hearing upon due notice.” General Laws of Massa-

chusetts, Chapter 150E, § 4. A petition for a decerti-

fication election must be presented to the Massa-

chusetts Labor Relations Commission on a form

prescribed by the Commission.

http://www.mass.gov/legis/laws/mgl/150e-4.htm

http://www.mass.gov/legis/laws/mgl/150e-4.htm

83


Michigan Michigan law permits public employees to obtain


resentative if “a public employee or group of public

employees . . . alleg[es] that 30% or more of the

public employees within a unit . . . assert that the

individual or labor organization, which is certified

or is being currently recognized by their public em-

ployer as the bargaining representative, is no longer

a [majority] representative.” Michigan Compiled

Laws Annotated § 423.212. A petition for a decerti-

fication election must be presented to the Michigan

Employment Relations Commission (“MERC”) on

a form prescribed by the Commission, accompanied

by a 30% showing of interest.

If a collective bargaining agreement applies to em-

ployees of a public school district or a public educa-

tional institution, and the agreement expires be-

tween June 1 and September 30, the petition cover-

ing those employees may be filed between January

2 and March 31 of the year the collective bargaining

agreement expires or the third year of collective

bargaining agreements that last longer than three

years. See MERC Rule 423.141(c); Michigan Com-

piled Laws § 423.214. For further rules covering

decertification, including when such a petition may

be filed, see MERC Rules 423.141 and 423.145.

The petition or cards signed by bargaining unit em-

ployees to establish the 30% must state that they

“no longer consider the certified bargaining unit,

84


representative as their representative,” not just that

they request an election. Hepler v. State Department

of Labor, 235 N.W.2d 161 (Mich. Ct. App. 1975).

Minnesota Minnesota law permits public employees to obtain


resentative: “An individual employee or group of

employees in a unit may obtain a decertification

election upon petition to the commissioner stating

the certified representative no longer represents the

majority of the employees in an established unit and

that at least 30 percent of the employees wish to be

unrepresented.” Minnesota Statutes Annotated

§ 179A.12.3.


sented to the Minnesota Bureau of Mediation Ser-

vices on a form prescribed by the Bureau, and ac-

companied by valid “deauthorization” (decertifica-

tion) cards signed and dated by at least 30% of the

employees included within the appropriate unit.

Missouri Missouri law permits public employees to obtain an


sentative: “A petition for decertification of public

employee representative may be filed by any em-

ployee or group of employees or any individual act-

ing on their behalf alleging that the certified or cur-

rently voluntarily recognized employee representa-

tive is no longer the majority representative of such

85


employees.” 8 Missouri Code of State Regulations

§ 40-2.020. A petition for decertification election

must be presented to the Missouri State Board of

Mediation on a form prescribed by the Board, and

accompanied by a 30% showing of interest.

Nevada

Nevada law permits local government employees to


ing representative. If “the board in good faith

doubts whether any employee organization is sup-

ported by a majority of the local government em-

ployees in a particular bargaining unit, it may con-

duct an election by secret ballot upon the question.”

Nevada Revised Statutes Annotated § 288.160, sub-

division 4.

New Hampshire New Hampshire law permits public employees to


ing representative if “a petition is filed by [a]t least

30 percent of the employees in the bargaining

unit . . . asserting that the employee organization

which has been certified by the board is no longer

the representative of the majority of employees in

the bargaining unit.” New Hampshire Revised Stat-

utes Annotated § 273-C:10. The petition for a de-

certification election must be presented to the New

Hampshire Public Employee Labor Relations Board

on a form prescribed by the Board, accompanied by

a 30% showing of interest by employees who have

signed a decertification signature card.

http://www.leg.state.nv.us/nrs/NRS-288.html#NRS288Sec160







86


New Jersey New Jersey law permits public employees to obtain


resentative if there is “a showing of interest of not

less than 30 per cent of the employees in the unit in

which an exclusive representative has been recog-

nized or certified. A showing of interest shall indi-

cate that the employees no longer desire to be repre-

sented for purposes of collective negotiations by the

recognized or certified employee representative or

by any other employee representative.” New Jersey

Administrative Code § 19:11-1.3. A petition for de-

certification must be presented to the New Jersey

Public Employment Relations Commission on a

form prescribed by the Commission, accompanied


Note, however, that for one year after certification

of a majority representative, its majority status is

conclusively presumed so as to bar the filing of any

petition . . . seeking decertification of the present

one. Galloway Township Board of Education v.

Galloway Township Association of Educational

Secretaries, 78 N.J. 1 (1978).

New Mexico New Mexico law permits public employees to ob-


representative if “thirty percent of the public em-

ployees in the appropriate bargaining unit make a

written request to the board or local board.” New

Mexico Statutes Annotated § 10-7E-16(A).

http://www.pelrb.state.nm.us/pdf/statutes/10-7E-16.pdf

http://www.pelrb.state.nm.us/pdf/statutes/10-7E-16.pdf

87


A decertification election will be valid if forty per-

cent of the eligible employees in the bargaining unit

vote in the election. New Mexico Statutes Annotat-

ed § 10-7E-16 (A). A written request for a decertifi-

cation election must be presented to either a local

board if it exists or the New Mexico Public Em-

ployee Labor Relations Board.

New York New York law permits public employees to obtain


resentative: “A petition alleging that an employee

organization which has been certified or is being

currently recognized should be deprived of repre-

sentation status as to all or part of a unit (hereinafter

called a “petition for decertification”), may be filed

by one or more public employees.” New York Civil

Service Rules & Regulations § 201.2. Petitions for

decertification elections must be presented to the

New York Public Employment Relations Board on

a form prescribed by the Board, and accompanied


Ohio Ohio law permits public employees to obtain an


sentative if “a petition is filed, in accordance with

rules prescribed by the state employment relations

board . . . [by] any employee or group of employ-

ees, or any individual or employee organization act-

ing in their behalf, alleging that at least thirty per

cent of the employees in an appropriate

88


unit . . . assert that the designated exclusive repre-

sentative is no longer the representative of the ma-

jority of employees in the unit.” “[T]he board shall

investigate the petition, and if it has reasonable

cause to believe that a question of representation

exists, provide for an appropriate hearing upon due

notice to the parties.” Ohio Revised Code Annotat-

ed § 4117.07(A)(1).


sented to the Ohio State Employment Relations

Board on a form prescribed by the Board, accompa-

nied by at least a 50% showing of interest.

Oklahoma Oklahoma law permits school employees to obtain


resentative. If “[i]n any February more than two (2)

years after recognition of an organization pursuant

to the provisions of this section and upon the receipt

of a petition calling for discontinuation of represen-

tation signed by thirty-five percent (35%) of the

employees eligible to be included in the unit, [then]

a local board shall call an election to determine

whether the members of a unit wish to discontinue

being represented for bargaining.” Oklahoma Stat-

utes Annotated Title 70, § 509.2.C.7. A petition for

a decertification election must be presented to the

local board of education.

89


Oregon

Oregon law permits public employees to obtain an


sentative, if “[a]n employee or group of employees

alleging that 30 percent of the employees assert that

the designated exclusive representative is no longer

the representative of the majority of employees in

the unit.” Oregon Revised Statutes Annotated

§ 243.682. A petition for a decertification election

must be presented to the Oregon Employment Rela-

tions Board, on a form prescribed by the Board, ac-

companied by a 30% showing of interest.

Pennsylvania Pennsylvania law permits public employees to ob-


representative. “[A] public employe [sic] or a group

of public employes [sic] may file a petition for de-

certification provided it is supported by a thirty per

cent showing of interest.” Pennsylvania Statutes

Annotated Title 43 § 1101.607. A petition for a de-

certification election must be presented to the Penn-

sylvania Labor Relations Board on a form for public

employees, available from the Board.

Rhode Island Rhode Island law permits public employees to ob-


representative. “[W]henever it is alleged by an em-

ployee or his or her representative that there is a

question or controversy concerning the representa-

90


tion of employees, the board shall investigate the

question or controversy . . . .” General Laws of

Rhode Island Annotated § 28-7-16. The Rhode Is-

land Labor Relations Board Rules and Regulations

§ 8.06.1(a), Petition for Decertification, states: “A

petition may be filed by either employees, an em-

ployer, or a rival labor organization to displace or

decertify a certified or recognized labor organiza-

tion.”

A petition for decertification election must be pre-

sented to the Rhode Island Labor Relations Board

on a form prescribed by the Board and must be ac-

companied by a 30% showing of interest. The

Board Rules and Regulations § 8.06.1(e) states:

“[w]hen thirty (30) percent or more of the employ-

ees in a bargaining unit covered by an agreement

between their employer and a labor organization

requiring membership in a labor organization as a

condition of employment file a petition alleging that

they desire that the authority of the labor organiza-

tion to make such an agreement be rescinded, the

Board’s Agent shall conduct a secret ballot of the

employees in such unit and certify the results . . . .”

Wisconsin Wisconsin law permits public employees to obtain


resentative. “If a petition is filed . . . for the discon-

tinuance of existing representation indicating a

showing of interest by 30% of the total number of

employees . . . , the commission should hold an

91


election . . . .” Wisconsin Statutes Annotated

§ 111.83(5)(h). A petition for a decertification elec-

tion must be presented to the Wisconsin Employ-

ment Relations Commissions on a form prescribed

by the Commission, accompanied by a 30% show-

ing of interest.

92

Appendix J

How to Start a Decertification

Election under the NLRA

First, you should assess the strength of your fellow

employees’ support for decertification within your

specific bargaining unit. Usually, it is not worth

calling for such an election unless you believe you

can gather support from a majority of co-

employees. To win, you will need a majority vote

from charter school employees who vote on the

election day. Remember, no employer involvement

is allowed.

To proceed, you and other charter school employees

should collect signatures on a petition that is similar

to the following sample petition.

PETITION TO REMOVE UNION AS

REPRESENTATIVE

The undersigned employees of

________________________ (employer name) do

not want to be represented by

________________________ (union name), hereaf-

ter referred to as “union.”

Should the undersigned employees constitute 30%

or more, but less than 50%, of the bargaining unit

93

Appendix J (continued)

represented by the union, the undersigned employ-

ees hereby petition the National Labor Relations

Board to hold a decertification election to determine

whether the majority of employees also no longer

wish to be represented by the union.

In addition, should the undersigned employees con-

stitute 50% or more of the bargaining unit repre-

sented by the union, the undersigned employees

hereby request that our employer immediately with-

draw recognition from the union, as it does not en-

joy the support of a majority of employees in the

bargaining unit.

_____________ _______________ _________


_____________ _______________ _________


_____________ _______________ _________


_____________ _______________ _________


_____________ _______________ _________


_____________ _______________ _________


94

Appendix J (continued)

These signatures should be collected when the

employees are on non-work time, and in non-

work areas! You must fill in the names of the un-

ion and employer in the blank spaces above be-

fore you collect signatures. There should be no

employer help, and employer resources should

not be used.

Once employees have collected the appropriate

number of signatures, they also need to fill out a

separate NLRB “Petition” cover sheet, NLRB

Form 502. This single sheet of paper is easy to fill

out, and is available from any Regional Office of

the NLRB. The NLRB’s website contains copies of

the Petition Form (requires Adobe Acrobat Read-

er), as well as a directory of the regional NLRB of-

fices in your area.

Finally, Foundation staff attorneys may be contact-

ed with questions on how to proceed, about assis-

tance getting through to the NLRB, or concerning

legal difficulties interfering with your efforts at

(800) 336-3600, by email at [email protected], or go

to http://www.nrtw.org/en/legal.htm.

http://www.nlrb.gov/

http://www.adobe.com/products/acrobat/readstep2.html

http://www.adobe.com/products/acrobat/readstep2.html

http://www.nlrb.gov/who-we-are/regional-offices

http://www.nlrb.gov/who-we-are/regional-offices

mailto:[email protected]

Documents

Know Your Workplace Rights: A Guide for Charter School Employees