“It isn’t what you don’t know that gives us trouble,” Will Rogers once remarked, “it’s what you know that ain’t so.” That certainly applies to the right-to-work debate in Indiana. One of the main reasons unions and some liberals give for opposing the bill is — legally — simply incorrect.
Right-to-work laws protect employees’ right to work, whether or not they pay union dues. Without such laws, unions will negotiate contracts that require employers to fire workers who do not pay dues.
Right-to-work proponents argue that paying union dues should be voluntary. Their opponents respond that federal law requires unions to represent all workers at a company, so right-to-work allows non-members to benefit from union contracts without paying for representation. This has been one of the main arguments that unions and some liberals have made. As District 7 United Steelworkers director Jim Robinson put it: “Under a right-to-work law, people could withdraw from the union and wouldn’t have to pay anything. But we are still obligated by federal law to represent them like we would represent a member.”
It’s a powerful argument. It’s also untrue. Federal law does not obligate unions to represent non-members. The National Labor Relations Act allows unions to sign “members’ only” contracts that apply only to dues-paying members. This is legally uncontroversial. In 1938, the Supreme Court expressly upheld union’s ability to negotiate only on behalf of members. As William Gould, chairman of the NLRB under President Clinton, wrote, “the law now permits members-only bargaining for employees” — unions can exclude non-members from their contracts.
They rarely do. Instead, unions typically negotiate as “exclusive bargaining representatives.” That lets them negotiate on behalf of all employees at a company, whether or not those workers want their representation. In that case, the law does require unions to bargain fairly. They cannot negotiate one wage for union members and the minimum wage for everyone else.
Unions voluntarily represent all workers because it lets them get a better contract for their supporters. Imagine a seniority system that only covered union members. The most productive workers would negotiate separately for performance pay and promotions. That would mean more money for them — and less money and fewer positions available for those on the seniority scale. Unions want to their contracts to apply to all workers, especially those they hold back.
That is very different from unions being required to represent everyone. It also makes the case for forcing workers to pay dues a lot weaker. The main liberal argument against right-to-work “just ain’t so.”