Right to Work and Duty to Represent

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

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

Throughout the private sector and in jurisdictions where public employees are permitted to bargain collectively, the exclusive bargaining representative (the union) has a duty to represent all members of the bargaining unit whether they are members or not. The only exception are states such as Florida who have specific statutes that relieve public sector unions of the obligation to process grievences of non-members..

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

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

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

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

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

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

Here is a copy of a Florida statute that relieves the union of any obligation to represent non-members:

447.401 Grievance procedures.—Each public employer and bargaining agent shall negotiate a grievance procedure to be used for the settlement of disputes between employer and employee, or group of employees, involving the interpretation or application of a collective bargaining agreement. Such grievance procedure shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties; however, when the issue under appeal is an allegation of abuse, abandonment, or neglect by an employee under s. 39.201 or s. 415.1034, the grievance may not be decided until the abuse, abandonment, or neglect of a child has been judicially determined. However, an arbiter or other neutral shall not have the power to add to, subtract from, modify, or alter the terms of a collective bargaining agreement. If an employee organization is certified as the bargaining agent of a unit, the grievance procedure then in existence may be the subject of collective bargaining, and any agreement which is reached shall supersede the previously existing procedure. All public employees shall have the right to a fair and equitable grievance procedure administered without regard to membership or nonmembership in any organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organization. A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this section, but such employee is precluded from availing himself or herself to more than one of these procedures.

Note: This post was updated to include additional information.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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