Guest Post: A Reply on Exclusive Representation and Sweeney v. Pence

Published September 8th, 2014 -  - 09.08.1413


Catherine Fisk is the Chancellor’s Professor of Law at University of California, Irvine. This post is part of a series: Heather Whitney’s initial post, James Sherk’s reply, and Ms. Whitney’s response.

In the debate between Heather and James over whether right-to-work laws require unions and their members to pay for services for nonpayers, Heather is correct. When a union is certified as the exclusive representative of a bargaining unit, it owes a duty of fair representation to all employees in the unit, and cannot choose to represent only its members. Under current law, the only way employees can exercise their statutory right to force the employer to bargain with them is when their union demonstrates that it has majority support. Employers typically require unions to obtain NLRB certification before they will bargain with the union at all, and the law currently allows for certification only of a union that represents the majority. As Heather pointed out in her first post, Ben and I have argued that in right to work states unions should have the option to represent only those who pay dues or fees in grievance arbitration, but that is not currently the law. And, even if the NLRB were persuaded to change to law the to allow unions to handle grievances only for dues-payers, the union would still have to bargain on behalf of all employees, not just its members.

James’ defense of right-to-work laws rests on a fundamental misconception about the nature of labor law. The National Labor Relations Act is based on a democratic model of workplace governance (it used to be called industrial democracy) rather than a libertarian model. Workers form unions to gain strength in numbers, just as capital gains strength by forming corporations, but in such groups individuals don’t have unfettered autonomy. In a democracy, the majority elects representatives to govern everyone. For democracy to work, the majority representative must have the power to raise revenue from everyone to implement the policies (whether it is public safety protection, public education, or parks) even if individual taxpayers of the public live in gated communities and pay for private security, or are pacifists and oppose war, or don’t have children or go to the park. Political philosophers since Thomas Hobbes recognized that we all benefit when we live in society.   We give up the right to govern ourselves entirely as individuals, enjoying our advantages of strength or intelligence, and we have to live under elected leaders we sometimes don’t like and pay taxes for some programs we don’t support, but we gain the protections that we will need when we are weak, old, or infirm.

The reason Congress did not choose a libertarian regime but instead gave unions the right to act as exclusive representatives of the employees is because it recognized, as the statute says, “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association.” NLRA section 1. Members-only bargaining is better than no union at all (as I have argued elsewhere), but it is no substitute for the workplace democracy that Congress envisioned.

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