‘If the facts don’t fit the theory, change the facts,” Albert Einstein reportedly once quipped. This seems to be the union strategy against workplace-freedom rules, better known as “right to work.” The unions’ main argument against right-to-work requires misinterpreting federal labor law. In fact, the law does not permit unions to negotiate contracts that cover anyone but their own members.
Right-to-work laws make union dues voluntary. In the absence of such laws, union contracts almost always make paying dues a condition of employment. Unions justify this coercion by saying that federal law requires them to represent all workers at a company. They argue that right-to-work allows employees to enjoy the benefits of union representation without paying for it. If unions must represent all workers, they contend, then all workers should share in the cost.
It is a powerful argument. Unions make it — loudly — every time a state considers enacting right-to-work. At Wisconsin’s right-to-work hearings last month, speaker after union speaker criticized lawmakers for forcing the unions to represent “free riders.”
But they had their facts wrong – or, rather, only half right. While the National Labor Relations Act (NLRA) authorizes unions with majority support to “exclusively represent” every employee, it does not require them to. If unions choose to bargain as exclusive representatives, then they must indeed represent all employees fairly.
The law does not allow unions to negotiate high pay for their members and the minimum wage for non-members. Insofar as the union activists described the obligations of exclusive-representative unions, they had their facts right.
But, as the Indiana Supreme Court recently noted, when unions bargain on behalf of all workers they do so voluntarily. A union may disavow exclusive-representative status and negotiate a “members-only” contract. A union that does not want to bargain exclusively and represent non-payers need not do so.
The Supreme Court has expressly upheld the legality of members-only contracts. In Consolidated Edison v. NLRB, the Court considered a challenge to a voluntary union at a New York electrical utility. The International Brotherhood of Electrical Workers had organized 80 percent of the plant. The Court disagreed with an NLRB challenge to the validity of this arrangement, holding that the NLRA permits members-only agreements:
The employees of the companies are entitled to self-organization, to join labor organizations, and to bargain collectively through representatives of their own choosing. The 80 percent of the employees who were members of the Brotherhood and its locals had that right. They had the right to choose the Brotherhood as their representative for collective bargaining, and to have contracts made as the result of that bargaining. Nothing that the employers had done deprived them of that right. Nor did the contracts make the Brotherhood and its locals exclusive representatives for collective bargaining. On this point, the contracts speak for themselves. They simply constitute the Brotherhood the collective bargaining agency for those employees who are its members.
This decision remains good law. Moreover, voluntary unions retain many NLRA legal protections. Companies may not discipline or discriminate against their members. They have the same legal right to strike. The courts will enforce their contracts.
So why do union supporters say otherwise?
Because unions virtually never choose members-only. Consolidated Edison was a rare exception. Almost every union officer works for a union that bargains exclusively and represents non-members. What they said before the Wisconsin legislature was true — of their experience in their organizations.
Unions voluntarily represent non-members because it strengthens their negotiating position. For one thing, the law requires companies to bargain with exclusive-representative unions but not members-only unions. However, a union that can take most of the workforce out on strike can usually bring an employer to the bargaining table. The AFL-CIO claims that 80 percent of their new members work at companies that voluntarily recognized their union without a secret-ballot election.
The bigger reason unions choose exclusive representation is that union contracts frequently benefit some workers at the expense of others. Union seniority systems, for example, protect the jobs of senior employees by requiring newer hires to get laid off first. In a members-only union, new hires would opt out.
That would put workers with two to three years’ experience in line for layoffs, and they too would leave the union. Then so would the workers next in line, and so on. In short order the seniority system would unravel, and senior employees would share in the risk of layoffs. Unions negotiate exclusively to prevent the workers they hurt from negotiating a better deal for themselves.
This is why unions insist on representing non-members. They don’t want to allow non-members to bargain independently of the union. New Mexico lawmakers debating a workplace-freedom law recently considered ending exclusive representation in government unions. The unions immediately opposed this. After Michigan legislators passed right-to-work, the bill’s sponsor proposed making government unions members-only. The AFL-CIO quickly came out against the proposal. Similarly for proposals to have unions in right-to-work Kansas represent only their members.
Unions object to representing non-members only in the context of opposing right-to-work. Though they could do so legally, they do not actually want to stop bargaining for them. This hardly justifies forcing these workers to pay union dues.