Click here to read our online PDF version of the Canadian Charter of Rights and Freedoms.

This version has been created for LabourWatch readers to have as reference while reading content on our website. It is not the "official" version.

Click here to read the Department of Justice's online version

This is the official version Canadian Charter of Rights and Freedoms on the Justice Department's website

Click here to read our online PDF version of the Canadian Bill of Rights.

This version has been created for LabourWatch readers to have as reference while reading content on our website. It is not the "official" version.

Click here to read the Department of Justice's online version

Click here to view the entire decision and LabourWatch Summary.

Click here to view the overturned February 2008 ALRB Decision.

Style: Armstrong v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146, 2009 ABQB 477
Case: Court of Queen's Bench of Alberta
Docket: 0801 03140
Date: August 6, 2009

On August 6, 2009 the Alberta Court of Queen’s Bench dealt an important blow to the all too common practice of unions imposing significant fines upon members who work for employers not having a relationship with the union.

This case involved an experienced welder who was a member of the Boilermakers Union. He had been working in a managerial position for a building trades contractor and then had an opportunity to work for a non-union construction management company, also in a managerial position. When the Union learned of this employment, it implemented its disciplinary procedures and fined the member $5,000. This is common in the construction industry. The Labour Relations Board upheld this Union discipline.

The Court overturned the Labour Board’s decisions and thus the Union’s discipline. Two of the Court’s important findings were as follows:

1. The Union violated its member’s “right to counsel” that exists under the Labour Relations Code for union discipline proceedings. Both the Union Constitution and its communications with the member indicated that he could only be represented by a fellow union member, not a lawyer of his choosing. The member did not participate in the discipline proceedings because he viewed it as being a “kangaroo court”. Although the Union subsequently gave evidence that it would have allowed legal representation in its hearings, the Court found this did not satisfy the member’s right to counsel because the member did not know of this fact.

2. Although the Labour Relations Code allows unions to punish members in certain circumstances, they are not entitled to do so when a member is working for a non-union company in a managerial position. A union may only punish members in such circumstances where it can provide “reasonable alternate employment.” A position under a collective agreement is not reasonable alternate employment to a managerial position. Further, the Court found that the purpose of this provision is to allow limited union discipline only for employees working under a collective agreement, not managerial employees.

Although this decision is consistent with similar decisions made in other provinces, it is an important precedent in Alberta in limiting the harsh practices of some unions. It is unknown whether the Union will appeal this decision.

Click here to view the entire decision and LabourWatch Summary.

Click here to view the overturned February 2008 ALRB Decision.

Click here to view the Dec 2008 Ontario Court of Appeal decision and LaborWatch summary.

Style: Jeffery Birch and April Luberti and Union of Taxation Employees Local 70030
Case: Court of Appeal for Ontario
Docket: C48007
Date: December 3, 2008

In a significant decision limiting the rights of trade unions, the Ontario Superior Court of Justice has ruled that the courts will not enforce financial penalties levied by trade unions against members who choose to cross a picket line during a legal work stoppage. The ruling in Birch and Luberti v. Union of Taxation Employees Local 70030 will make it more difficult for trade unions to use the threat of fines and other penalties to enforce picket line solidarity. It will also enhance the right of employees to decide for themselves whether they wish to participate in a work stoppage.

The decision was immediately appealed by the union in the Ontario Court of Appeal.

The union lost in a 2 to 1 decision on December 3, 2008

Background

During a seven day PSAC strike in 2004, numerous members of the Union of Taxation Employees Local 70030 (Union), a division of PSAC, decided to cross the picket line and report for work. The Union responded by imposing a fine on each member equivalent to the employee's gross salary for each day worked during the strike. Many members refused to pay the fines, so the Union resorted to Ontario's Small Claims Court to recover the fines. The Union relied on a provision of its Constitution that purported to authorize the imposition and collection of fines.

Jeffrey Birch and April Luberti were two Union members who crossed the picket line, were fined by the Union, and were subsequently sued by the Union in Small Claims Court. Instead of defending in Small Claims Court, Birch and Luberti jointly brought an application in the Superior Court of Justice seeking two orders: (1) a declaration that the Ontario courts will not enforce the Union's financial penalties, and (2) an order dismissing the Union's lawsuits in Small Claims Court. Birch and Luberti were represented in the Superior Court of Justice by John Craig and Richard Sinclair of Heenan Blaikie LLP.

The October 2007 Decision

Justice Smith ruled in favour of Birch and Luberti on all the issues and granted the orders they were seeking. Justice Smith based his decision on the following considerations.

First, neither Birch nor Luberti had availed themselves of an internal appeal that was permitted under the Union's Constitution. The Union argued that failure to take advantage of an internal Union appeal meant that Birch and Luberti could not seek the assistance of the courts. Justice Smith disagreed, pointing out that the Union had resorted to the courts by suing Birch and Luberti. Birch and Luberti were entitled to defend themselves regardless of the existence of an internal Union appeal mechanism.

Second, Justice Smith confirmed the common law position that Ontario's courts will not enforce penalty clauses in contracts. The Union's Constitution was effectively a contract between the Union and its individual members. Therefore, if it contained a penalty clause, then that clause would not be enforceable in the courts. Justice Smith considered the specific provision of the Union Constitution at issue. He concluded that the provision permitted a financial penalty to be imposed that was excessive since the penalty (i.e. gross salary for the time worked) bore no relation whatsoever to actual losses suffered by the Union as a result of members crossing the picket line. The financial penalty therefore fell into the category of penalties that will not be enforced by the courts.

Third, the Union argued that the financial penalties were not unconscionable in the labour relations circumstances and therefore should be enforced in the courts. Justice Smith disagreed, finding that the financial penalties were "extremely onerous" and based on speculative assumptions. Significantly, he rejected the idea that a financial penalty for picket line crossing could be based on the supposed financial benefit of such crossing to the employer. The Union also asserted that the financial penalties were justifiable to deter "free riders" who would benefit from strike activity while continuing to report to work. In response, Justice Smith observed that trade unions should use strategies other than onerous financial penalties to encourage respect for picket lines (e.g. persuasive information campaigns and better strike pay).

Fourth, Justice Smith rejected the submission that the Public Service Labour Relations Act (PSLRA) authorized the imposition of financial penalties for crossing a picket line. The relevant provisions of the PSLRA are very similar to provisions of the Canada Labour Code. At best, these PSLRA provisions refrain from making it an unfair labour practice for unions to levy financial penalties against their members. However, there would have to be a clear statutory provision authorizing such penalties before the courts would enforce them.

The December 2008 Appeal Decision

In a 2 to 1 decision, the majority of the Court of Appeal agreed with the application judge and held that the provision in UTE's constitution authorizing the imposition of fines is unconscionable and therefore unenforceable. In applying the unconscionability test, the majority found that there was an inequality in bargaining power between the parties and that, you as the respondents did not have much choice in agreeing to the inclusion of such penalty provisions in their collective bargaining agreement. Moreover, the majority found that the penalties imposed were excessive. While the court recognized that union solidarity is a fundamental principle of the union movement and the collective bargaining process, the court found that the means adopted to achieve such solidarity were "very unfair". As such, the majority of the court found no basis to interfere with the decision of the application judge. As agreed by the parties at the conclusion of the oral arguments, the court awarded costs in the amount of $3,000 in our favour.

In a dissenting decision, Juriansz J.A. found that the fine was not unconscionable and that the common law rules that penalties are per se unenforceable does not apply to the disciplinary provisions of a union constitution. Justice Juriansz found that (i) there was no inequality of bargaining power; (ii) the amount of the fine was not unfair when considered in light of the actual damage suffered by the union; and (iii) the disciplinary provision is not inherently unenforceable as a penalty. As such, Justice Juriansz would allow the appeal.

Click here to view the Dec 2008 Ontario Court of Appeal decision and LabourWatch summary.

Click here to view the entire decision.

Style: Jeffery Birch and April Luberti v. Union of Taxation Employees Local 70030
Case: Ontario Superior Court of Justice
Case: 06-CV-35925
Date: October 17, 2007

In a significant decision limiting the rights of trade unions, the Ontario Superior Court of Justice has ruled that the courts will not enforce financial penalties levied by trade unions against members who choose to cross a picket line during a legal work stoppage. The ruling in Birch and Luberti v. Union of Taxation Employees Local 70030 will make it more difficult for trade unions to use the threat of fines and other penalties to enforce picket line solidarity. It will also enhance the right of employees to decide for themselves whether they wish to participate in a work stoppage.

Background

During a seven day PSAC strike in 2004, numerous members of the Union of Taxation Employees Local 70030 (Union), a division of PSAC, decided to cross the picket line and report for work. The Union responded by imposing a fine on each member equivalent to the employee's gross salary for each day worked during the strike. Many members refused to pay the fines, so the Union resorted to Ontario's Small Claims Court to recover the fines. The Union relied on a provision of its Constitution that purported to authorize the imposition and collection of fines.

Jeffrey Birch and April Luberti were two Union members who crossed the picket line, were fined by the Union, and were subsequently sued by the Union in Small Claims Court. Instead of defending in Small Claims Court, Birch and Luberti jointly brought an application in the Superior Court of Justice seeking two orders: (1) a declaration that the Ontario courts will not enforce the Union's financial penalties, and (2) an order dismissing the Union's lawsuits in Small Claims Court. Birch and Luberti were represented in the Superior Court of Justice by John Craig and Richard Sinclair of Heenan Blaikie LLP.

The Decision

Justice Smith ruled in favour of Birch and Luberti on all the issues and granted the orders they were seeking. Justice Smith based his decision on the following considerations.

First, neither Birch nor Luberti had availed themselves of an internal appeal that was permitted under the Union's Constitution. The Union argued that failure to take advantage of an internal Union appeal meant that Birch and Luberti could not seek the assistance of the courts. Justice Smith disagreed, pointing out that the Union had resorted to the courts by suing Birch and Luberti. Birch and Luberti were entitled to defend themselves regardless of the existence of an internal Union appeal mechanism.

Second, Justice Smith confirmed the common law position that Ontario's courts will not enforce penalty clauses in contracts. The Union's Constitution was effectively a contract between the Union and its individual members. Therefore, if it contained a penalty clause, then that clause would not be enforceable in the courts. Justice Smith considered the specific provision of the Union Constitution at issue. He concluded that the provision permitted a financial penalty to be imposed that was excessive since the penalty (i.e. gross salary for the time worked) bore no relation whatsoever to actual losses suffered by the Union as a result of members crossing the picket line. The financial penalty therefore fell into the category of penalties that will not be enforced by the courts.

Third, the Union argued that the financial penalties were not unconscionable in the labour relations circumstances and therefore should be enforced in the courts. Justice Smith disagreed, finding that the financial penalties were "extremely onerous" and based on speculative assumptions. Significantly, he rejected the idea that a financial penalty for picket line crossing could be based on the supposed financial benefit of such crossing to the employer. The Union also asserted that the financial penalties were justifiable to deter "free riders" who would benefit from strike activity while continuing to report to work. In response, Justice Smith observed that trade unions should use strategies other than onerous financial penalties to encourage respect for picket lines (e.g. persuasive information campaigns and better strike pay).

Fourth, Justice Smith rejected the submission that the Public Service Labour Relations Act (PSLRA) authorized the imposition of financial penalties for crossing a picket line. The relevant provisions of the PSLRA are very similar to provisions of the Canada Labour Code. At best, these PSLRA provisions refrain from making it an unfair labour practice for unions to levy financial penalties against their members. However, there would have to be a clear statutory provision authorizing such penalties before the courts would enforce them.

Click here to view the entire decision.

The Alberta Labour Relations Board rules against union Member Warren Armstrong, upholding his suspension from the union for failure to pay a fine levied by the Boilermakers union for working non-union.

Armstrong's position was that the union's imposition of a fine was coercive and improper. The Alberta Labour Board did not agree - "With respect to the improper motive for the imposition of discipline we find none. While banning work for non-union contractors at initial blush appears to be a restraint of trade, the fact is that is precisely what a Union is supposed to do."

Click here to view the entire decision.

In response to an appeal to The Alberta Provincial Court decision of February 2008 the Telecommunication Workers Union (TWU) appealed to the Court of Queen's Bench of Alberta.

The Queen's Bench again ruled in agreement with other Canadian jursidictions that Unions cannot enforce disciplinary penalties in a court of law.

Click here to view the entire decision.

The Alberta Provincial Court rules in agreement with other Canadian jursidictions that Unions cannot enforce disciplinary penalties in a court of law.

Click here to view the entire decision.

This is a summary of Supreme Court of Canada precedent concerning the use of forced union dues for political, social and other non-bargaining purposes Click here to read.

This decision addresses the basic question of whether a union member may be personally liable to other members in a breach of contract action based on the terms of the union constitution. This requires an analysis of the nature of the obligations that exist between members of a trade union.

Click here to view the entire decision.

Click here to view the entire decision and LabourWatch commentary.

Style: Regina v. Advance Cutting and Coring
Case: [2001] 3 S.C.R. 209; [2001] S.C.J. No. 68; 2001 SCC 70;
File: 26664.
Date: 2000: March 20 / 2001: October 19.

This case deals with legislation in the Canadian province of Quebec that effectively forces construction workers to become and remain Members in one of five unions in order to obtain and keep employment on construction work sites in Quebec.

In summary, the Supreme Court of Canada decided (8-1) that there is a negative right to not associate under the Canadian Charter of Rights and Freedoms Section 2d) – the Right to Freedom of Association. The Court also decided (5-4) that the Quebec legislation violated the right to not associate. However, the Court ultimately decided (5-4), under Section 1 of the Charter, that the Quebec legislation was a justifiable denial of that right in a free and democratic society given the history of labour relations in Quebec’s construction industry.

Background

During the construction of Expo 1967 in Montreal and elsewhere more generally, construction employees and employers in Quebec faced violence and vandalism. Starting at least in the 1960’s evidence of significant levels of corruption was gained more profile. It included: union actions against their own Members (sale of jobs, blackmailing, usury, physical violence); unions against other unions (physical violence, attempts to control job sites), unions against employers (sale of manpower through the hiring hall, kickbacks, payoffs), and employers against government officials (bribes). During 1972 violence in Quebec’s construction sector was valued at 300 million dollars.

At the same time, Quebec police, governmental authorities and the courts did not ensure that the rule of law and the Criminal Code were effectively enforced to protect Quebecers.

In 1968, in response to this violence and corruption the province abandoned this system and adopted Bill 290, a province-wide approach with a single agreement that covers all trades and all construction employers in the province. This legislation was changed numerous times but most importantly in 1975, after serious violence at the James Bay Power project. Prior to 1968 the Quebec construction industry was covered for the most part by 15 separately negotiated labour agreements for various regions. In 1974, the Quebec Government established a Royal Commission of Inquiry into Union Freedom in the Construction Industry, known as the Cliche Commission.

This Commission was led Quebec Provincial Court Justice Robert Cliche, and included, Brian Mulroney, (then a labour lawyer in Montreal and subsequently Prime Minister of Canada from 1984 - 1992). The Commission recommended changes, some of which were included in Bill R20 which was intended to strengthen the law to deal with the recurring violence and vandalism. Some observers say that some changes were also included to make legal challenges to the law more difficult.

The Decision

In Advanced Cutting and Coring, the appellant employer was charged with hiring employees who did not have the required competency certificates contrary to the Quebec Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry (the "Construction Act"). The appellants asserted that workers could not obtain the competency certificates without becoming members in one of the unions listed in the Construction Act. The appellants claimed this requirement was unconstitutional as it breached employees' freedom of association as guaranteed in section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter").

The Construction Act provided a mechanism where each certified construction worker - identified by the Commission de la construction du Quebec (the "Commission") - would select one of five union groups to act as his or her bargaining representative. The union group or association of groups that represented at least 50 percent of certified construction workers would then be granted the power to negotiate collective agreements.

While the Supreme Court of Canada had acknowledged the negative right not to associate in their Lavigne decision (1991), it had also accepted a democratic rationale for putting limits on the right of non-association. In Lavigne, the Court noted that some forms of compelled association might be compatible with Charter values.

In Advanced the Supreme Court of Canada decided (8-1) that there is a negative right to not associate under the Canadian Charter of Rights and Freedoms 2 d) - Right to Freedom of Association. The Court also decided (5-4) that the Quebec legislation violated the right to not associate. However, the Court ultimately decided (5-4), under Section 1 of the Charter, that the Quebec legislation was a justifiable denial of that right in a free and democratic society given the history of labour relations in Quebec’s construction industry.

The majority judgment suggested courts should be mindful to avoid second-guessing legislatures on controversial and complex political choices. It noted the Quebec legislation was attempting to address problems that had become a pressing social and economic issue.

The majority judgment found that the method chosen was the fairest and most effective way to determine the representativeness of the unions and to balance employee involvement in the union (as compared to the Rand Formula, whereby an employer deducts a portion of the wages of all employees within a bargaining unit, union Members or not, to go to the union as union dues – also referred to by some as "check off").

LabourWatch Commentary

Of the countries that recognize unions and collective bargaining it is obvious that the current legal systems, industrial relations systems and traditions let alone the values of differ to varying degrees from country to country. That makes comparing certain legal realities in one country to others more challenging. At the same time, there are certain principles which can be used as a basis for evaluating a given country’s statutes and practices against others when asking whether a country should maintain its current policies or implement changes. It is in this framework that LabourWatch seeks to question key aspects of Canadian labour relations such as forced membership, conditional employment, forced union dues, union supervision of ratification and strike votes, etc.

Forced union Membership and conditional employment, whether by legislation or closed shop collective agreement provisions, are violations of the European Convention on Human Rights.

Surely it is troubling that the highest Court in the land, with this ruling, has enabled the abrogation of the rights of Canadians because the police, the lower courts, crown prosecutors and the government departments responsible for the courts and police are not willing to enforce the law. Instead, construction employees have a Charter right that non-construction workers enjoy stripped away through forced union Membership as a condition of employment. The Court chose not to find that the police and judicial system of a whole province should instead ensure the rights of all employees by striking down the legislation and saying, as in many countries of the world, that mandatory membership and conditional employment are a violation of human rights.

It should then come as no surprise that today in Quebec, there is no official discussion about the ongoing existence of violence, vandalism and intimidation in the construction sector. Unionized employees, their local union and related employers from one part of the province who seek or take on construction jobs in another part of the province find their truck vandalized, for example. Similar experiences exist for operators from outside the province of Quebec who take on work in the province. It may not be at its historical levels, but it remains a fact of construction life in Quebec.

Click here to view the entire decision and LabourWatch commentary.

Among numerous other things, this decision found that the Union had no jurisdiction to subject employees who were not members of the Union to the disciplinary policy, and the penalty of fines. Also, the constitution of the Union did not satisfy the requirements of Section 36(5) regarding assessment of fines, and thus the fines were disallowed.

Click here to view the entire decision.

Click here to view the entire decision and LabourWatch summary.

Style: Lavigne v. Ontario Public Service Employees Union
Case: Supreme Court of Canada [1991] 2 S.C.R. 211
File: 21378
Date: 1990: June 18, 19; 1991: June 27.

This case dealt with a challenge to the Colleges Collective Bargaining Act because of its incorporation of the Rand formula whereby an employer deducts a portion of the wages of all unionized employees in a bargaining unit, union Members or not, to go to the union as union dues ("checkoff") and in particular, what the union uses these dues for. The issue was the use of dues for purposes such as support for political parties or causes in Canada and other countries that the unionized employee objected to being associated with via his dues.

Ultimately the Court upheld the union’s ability to collect full dues from non-Members of a union in a unionized workplace and the union’s ability to use dues for political and other purposes that the individual employee might be opposed to.

Background

Francis (Merv) Lavigne had been a teacher at a provincial post secondary educational institution – a community college in Ontario. Lavigne had not voluntarily become a Member of the Ontario Public Services Employees Union ("OPSEU") and at the time, the Collective Agreement did not require him to become an OPSEU Member as a condition of employment. However, he was still required to pay fees (dues) to the union pursuant to, what is known in Canada as the Rand formula.

Under OPSEU's constitution, it was allowed to use the dues towards the advancement of the "common interests, economic, social and political, of the members and of all public employees, wherever possible, by all appropriate means". OPSEU put some of the money towards interests such as disarmament campaigns, the very militant National Union of Mine Workers in the United Kingdom, a health care workers' union in Nicaragua, and sponsored events for the New Democratic Party – a Canadian political party at federal and provincial levels of government that pursues socialist principles.

The practice was and is still not unusual for unions across Canada, but Lavigne opposed many of the causes supported by OPSEU with what he saw as his money. He brought an application for declaratory relief against the union on the basis that the Colleges Collective Bargaining Act, which gave the union the power to allocate funds to causes of their choosing, violated his right under the Canadian Charter of Rights and Freedoms, to freedom of association under section 2(d) and under 2(b) his freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication of the Charter.

The Decision

The Court unanimously held that the Charter did apply because in this case the obligation to pay dues can be attributed to government. However, it also decided not to grant Lavigne the relief requested, but for varying reasons. Lavigne is a very difficult decision to read because there are four separate judgments. It appears that the court was very divided in its rationale.

Some observers say that the majority decision held there was a violation of Lavigne’s freedom of association (section 2(d) of the Charter) - that the Rand formula interferes with the freedom from compelled association – what is generally known in international human rights terms as the negative right of non-association. However, the majority ruled that such interference was justified under section 1 of the Charter. The majority decision held that the use of the union dues did not constitute forced expression, and so there was no violation of the freedom of expression.

Section 1 states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The minority decision held that there was no violation at all, but if there was it would be saved under Section 1. The minority decision disagreed with the majority by finding the use of the union funds did have expressive content, but the payments did not imply that Lavigne supported any of the union's causes and did not prevent him from expressing his own personal views. Accordingly, there was no violation of the freedom of expression.

Lavigne is often cited for establishing the negative right not to associate as a Charter right in Canada. Specifically, the majority judgment states: "Recognition of the freedom of the individual to refrain from association is a necessary counterpart to meaningful association in keeping with democratic ideals. Thus, freedom from forced association and freedom to associate should not be viewed in opposition, one "negative" and the other "positive". They are not distinct rights, but two sides of a bilateral freedom which has as its unifying purpose the advancement of individual aspirations.

LabourWatch Commentary

Of the countries that recognize unions and collective bargaining it is obvious that the current legal systems, industrial relations systems and traditions let alone the values of jurisprudence differ to varying degrees from country to country. That makes comparing certain legal realities in one country to others more challenging. At the same time, there are certain principles which can be used as a basis for evaluating a given country’s statutes and practices against others when asking whether a country should maintain its current policies or implement changes. It is in this framework that LabourWatch seeks to question key aspects of Canadian labour relations such as forced union Membership, conditional employment, forced union dues, union supervision of ratification and strike votes, etc.

Forced union Membership and conditional employment, whether by legislation or closed shop collective agreement provisions, are violations of the European Convention on Human Rights.

In 2007, Canada increasingly stands alone in the world in allowing such violations of employee rights of non-association and freedom of expression. As a result of judicial rulings or legislation, workers in many countries but particularly all of the European Union, Australia, New Zealand and parts of United States are protected from forced union membership as a condition of employment. As such, unionized employees, who may be a member of a bargaining unit in a unionized workplace, but who do not choose to additionally become Members of the union, either do not pay dues at all or they pay dues that are related to the administration of the collective agreement that governs their employment only and not for other union interests such as the support for political parties and social causes the union leaders choose to support on behalf of their actual Members.

Lavigne was supported in his case by a Member of the Canadian LabourWatch Association – the National Citizen’s Coalition. Many unions succeeded in getting intervenor status and in the end the Court also awarded costs to the unions that represented hundreds of thousands of dollars that the NCC raised and paid on Lavigne’s behalf.

Click here to view the entire decision and LabourWatch summary.

Click here to view the entire decision.

This landmark decision has resurfaced a result of human rights developments within Canada's labour movement. LabourWatch will be providing a summary at a later date

Click here to view the entire decision.

Click here to read our online PDF version.

This is version has been created for LabourWatch readers to have as reference while reading content on our website. It is not the "official" version.

Click here to read the United Nation's online verison..

This is the online version of the "offical" document kept and updated on the United Nations website

Click here to read our online PDF version.

This is version has been created for LabourWatch readers to have as reference while reading content on our website. It is not the "official" version.

Click here to read the International labour Organization's online verison..

This is the online version of the "offical" document kept and updated on the ILO website

The National Labor Relations Board (NLRB) voted 3-2 to overturn its policy of denying employees any access to a secret ballot vote over unionization after a union is recognized pursuant to the controversial "card check" organizing process.

Click here to view the entire decision.

This document summarizes U.S. Supreme Court decisions from 1937 to 2007 that have had significant impact on the issue of compulsory unionism in the United States.

Click here to read the full summary.

A six-member majority of the Court rejected arguments that a requirement that public employees pay agency fees to keep their jobs violates the First Amendment. The Court ruled that the agency shop as such 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 behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative."

Click here to view the entire decision.

The Court determined that Congress intended the substantially "identical" authorizations of compulsory 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 exaction of only those fees and dues necessary to `performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.'" As a result, private-sector employees should have the same right not to subsidize union non-bargaining activities as railway, airline, and public employees, and should be entitled to the procedural protections outlined in Chicago Teachers Union v. Hudson. However, so far the National Labor Relations Board has ruled that the substantive and procedural rights of non-members are lesser under the NLRA than under the RLA and the First Amendment. See Food & Commercial Workers Local 1036 v. NLRB, 307 F.3d 760 (9th Cir. 2002); Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998).

Click here to view the entire decision.

The Court ruled that compulsory unionism agreements may not be used "for any purpose other than to compel payment of union dues and fees," i.e., that employees may not be required to be formal union members and abide by internal union rules to keep their jobs.

Click here to view the entire decision.