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, Mr. Sherk’s reply, Ms. Whitney’s response, Professor Catherine Fisk’s reply, and Mr. Sherk’s response.

James’s response overlooks a federal law that prohibits unions and employers from resolving the right-to-work free-rider problem by agreeing that the union will represent only its members. As I explained in my prior post, current federal law requires unions to negotiate collective bargaining agreements on behalf of all of the employees in a particular bargaining unit, and it preempts most state law regulating union-member relations, including state laws that would give employees a right to engage in members-only bargaining.

The state authority to ban contracts requiring employees to pay for union services is an exception to broad federal preemption of state law. Section 14(b) of the NLRA allows states to outlaw “agreements requiring membership in a labor organization.” A literal reading of that section would allow states to forbid only collective bargaining clauses that required that a worker actually become a member of a union. But the Supreme Court has held that section 14(b)’s definition of “membership” is broader. In Retail Clerks International Ass’n, Local 1625 v. Schermerhorn, 373 U.S. 746, 756–57 (1963), the Court held that a contract requiring all employees in the bargaining unit to pay the equivalent of the dues and fees paid by members “is the ‘practical equivalent’ of an ‘agreement requiring membership in a labor organization.’”

Schermerhorn means that state right-to-work laws can ban collective bargaining agreements that “require membership” in a union, including the financial equivalent of membership. Ben and I argue in a forthcoming article in the UC Irvine Law Review that agreements requiring employees to pay less than full dues do not “require membership,” and, therefore, states do not have authority to ban them. But neither the NLRB nor the federal courts have yet so held.

The NLRB has held, however, that employees do not have a federally protected right to engage in members-only bargaining. Although members-only bargaining is permissible under the NLRA if the employer agrees to engage in it, the NLRB has held that employers are not required to bargain with their workers on a members-only basis. In Dick’s Sporting Goods, when management declined to recognize or bargain with a Council formed by a minority of employees, the NLRB General Counsel refused to issue a complaint, stating simply that the law leaving an employer free to refuse to bargain on a members-only basis is “well settled and is not an open issue.”  The Board has also held that an employer does not violate its legal duty to bargain when, during the term of an agreement negotiated on a members-only basis, it unilaterally subcontracted out work to a nonunion contractor and laid off union members who had done the subcontracted work. Don Mendenhall, Inc., 194 N.L.R.B. 1109, 1110 (1972).

Thus, James’ argument is essentially that workers in right-to-work states can choose between providing free services to their free-riding coworkers or forfeit their federal right to require their employer to bargain collectively. Surely, a libertarian solution to free-riding is not to force employees to choose between sacrificing their federal statutory rights or providing free services.

Two final points about James’ idea that right-to-work laws protect unwilling workers from contract terms they oppose. First, right-to-work laws invalidate contracts freely entered by employers and unions. Prohibiting these agreements restricts the liberty of employers, unions, and the majority of employees who voted for union representation. Second, the alternative to a union contract is unilateral employer policy. It is no more a violation of a worker’s freedom to have a union negotiate a contract on her behalf than it is to have an employer impose a contract with no negotiation at all.