Agency Power Play: Can They Withhold Benefits Due To Union Laws?

Employees have the right to join a union and are protected by federal and state laws. Union-security agreements require employees to become members and pay dues, but some states have banned these agreements, allowing employees to opt-out of unions and dues. Employers are prohibited from threatening employees with the loss of benefits for joining a union, but they can withhold benefits from union employees in certain situations. The National Labor Relations Board (NLRB) determines whether an employer's actions are lawful, such as in the case of Merck, where the NLRB decided that withholding benefits from union employees was lawful.

Can an agency withhold benefits due to a new union law?

Union-security agreements

The NLRA also provides protections for employees who object to full union membership. These employees, known as objectors, can choose to be 'core' members and pay only the share of dues used for representation, such as collective bargaining and contract administration. Unions are obligated to inform their members about this option, known as the Beck right, established by a Supreme Court ruling. Additionally, employees may object to union membership on religious grounds, but they must then pay an equivalent amount to a nonreligious charitable organisation.

The International Labour Organization's Right to Organise and Collective Bargaining Convention does not authorise or prohibit union security agreements. The legal status of these agreements varies internationally. For example, in Western European countries, the closed shop form of union security agreement is typically banned, while other forms are unregulated. In Australia, the legal status has varied across states and the national government, with various forms of union security agreements favoured at different times. In contrast, New Zealand had a compulsory closed shop agreement as of 1988, and Mexico had a mandatory closed shop until the early 1990s, when federal law allowed for more flexibility.

Threatening employees

Employers often spend significant amounts of money on "union avoidance" consultants, who advise them on how to use legal and illegal tactics to prevent unionization. This creates a climate of fear and intimidation in the workplace, with employees feeling scared to exercise their legal right to collective bargaining.

In addition to threatening employees, employers may also imply that wages and benefits will decrease if employees support unionization. This is a form of coercion that is also prohibited under the NLRA. Employers are also not allowed to promise benefits or better treatment to employees if they reject the union.

To combat these union-busting tactics, employees should be aware of their rights and document any illegal activities. They can also form committees to campaign for the union and counter the misleading messaging often used by management. It is important for employees to understand that they have the right to organize and collectively bargain, and that their employer cannot lawfully interfere with this process.

In conclusion, threatening employees is a common but illegal tactic used by employers to prevent unionization. Employees should be aware of their rights and take action to counter these threats, whether through documentation, legal action, or forming committees to campaign for the union.

Promising benefits to anti-union employees

Firstly, threatening. Employers cannot threaten to discipline or fire an employee who engages in activity supporting a union. They also cannot change an employee's working conditions, lower their pay, take away their benefits, or give them less desirable work assignments. It is also illegal to threaten to shut down a business or lay off employees if unionization is successful.

Secondly, interrogating. Employers cannot ask employees questions about their union activities. This means that employers cannot ask employees whether they belong to a union or how they plan to vote in an upcoming union election, nor can they ask for information about the union activities of others.

Thirdly, promising. Promising benefits to employees who do not support a union is illegal. Employers cannot offer promotions, higher pay, or better benefits to employees who do not join a union.

Finally, spying. Spying on union activities in which employees are participating is illegal. This includes soliciting employees' opinions on joining the union or asking them about their coworkers' stance.

It is important to note that, even if an employer does not explicitly promise better benefits to anti-union employees, it is still illegal to imply that wages and benefits will be decreased for supporting unionization or increased for rejecting it. Employers are also not allowed to tell employees that collective bargaining could possibly result in a decrease in wages and benefits, as this could be seen as an implicit threat or promise.

In conclusion, promising benefits to anti-union employees is illegal under the NLRA, and employers who engage in this behaviour may be found in violation of labour laws.

Collective bargaining

The right to collective bargaining is recognised in international human rights conventions, including the Universal Declaration of Human Rights and the International Labour Organization's Declaration on Fundamental Principles and Rights at Work. It is also established as the "policy of the United States" in the 1935 National Labor Relations Act, which clarified the bargaining rights of private-sector workers.

In the context of union laws, employees may choose to become union members and pay dues, or they may opt to pay only the share of dues used for collective bargaining and contract administration. This option, known as the Beck right, was created by a Supreme Court ruling. Unions are obligated to inform their employees about this option. Additionally, in 27 states that have passed "right to work" laws, employees have the right to refrain from joining a union and paying dues, even though they are still protected by the collective bargaining agreement negotiated by the union.

While collective bargaining is a valuable tool for workers to achieve a form of workplace democracy, it is important to note that some employers may seek to undermine existing bargaining relationships and roll back previously agreed-upon contract terms and conditions. For example, in 2025, the Department of Homeland Security (DHS) under the Trump administration attempted to end the collective bargaining agreement with the Transportation Security Administration (TSA), drawing criticism from union members and Democrats in Congress.

Union dues

However, employees have the option to not become full union members and instead pay only a portion of the dues that directly covers their representation in collective bargaining and contract administration. These employees, known as objectors, are no longer considered full members but are still protected by the union contract. Unions have the obligation to inform all covered employees about this option, which was established by a Supreme Court ruling known as the Beck right. It's important to note that objecting to union membership on religious grounds is allowed, but in such cases, employees must contribute an equivalent amount to a nonreligious charitable organization.

The level of union dues can vary significantly. Some unions collect a percentage of each worker's pay, which may be based solely on base wages or may include additional income such as overtime pay. Other unions employ a sliding scale approach, where the percentage varies based on the worker's income, resulting in lower-paid workers contributing a smaller percentage. Some unions have set dues, where a specific amount, like $150 per month, is mandated. There are also unions that utilize a combination of percentage and set dues. The collection frequency and methods can also differ, with dues being deducted from paychecks or collected separately.

It's worth noting that 27 states have enacted so-called "right to work" laws, banning union-security agreements. In these states, employees have the freedom to choose whether to join the union and pay dues, even though the collective bargaining agreement negotiated by the union extends protection to all workers. The union is still responsible for representing all employees, regardless of their union membership status.

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