Union ‘Slavery’ Lawsuit Misstates Federal Law

by James Sherk

Patrick, the Operating Engineers Local 150 lawsuit you mentioned is even weaker than the Michigan Capitol Confidential report indicates. The Operating Engineers argue that Indiana’s right-to-work law violates the Thirteenth Amendment’s ban on slavery by forcing them to represent nonmembers:

The Defendants have exacted compulsory service and/or involuntary servitude from the Union through the combination of the passage of the Right to Work law and the existing federal requirement of the duty of fair representation. Through these laws the Union is compelled to furnish services to all persons in bargaining units that it represents, but it may not require payment for those services because of the Right to Work law.

In fact, nothing in federal law “compels” unions to represent nonmembers. The Supreme Court expressly ruled that unions can negotiate contracts that cover only dues-paying members. As William Gould, appointed by President Clinton to chair the National Labor Relations Board, wrote, “the law now permits ‘members-only’ bargaining for employees.”

Unions only represent nonmembers if they voluntarily become “exclusive representatives.” This legal status requires all employees at a company to accept union representation. In that case, unions must represent all workers fairly.

Unions could choose to allow non-dues-payers to negotiate separate contracts. But they never do this. As I explained in a recent Heritage Foundation paper:

[Unions] prefer exclusive representative status because it enables them to get a better contract for their supporters. Consider seniority systems: They ensure that everyone gets raises and promotions at the same rate, irrespective of individual performance. If a union negotiated a members-only contract with a seniority system, high-performing workers would refuse to join. Those workers would negotiate a separate contract with performance pay. The best workers would get ahead faster, leaving less money and fewer positions available for those on the seniority scale. The union wants everyone in the seniority system — especially those it holds back.

Local 150 wants the power to force construction workers to pay more than $2,000 a year for union representation that may hold them back. The Operating Engineers accuse right-to-work proponents of favoring involuntary servitude. Perhaps they are projecting?

— James Sherk is Senior Policy Analyst in Labor Economics at The Heritage Foundation.