Guest Post: On the Takings Clause and Exclusive Representation — A Reply to Heather Whitney

James Sherk is a Senior Policy Analyst in Labor Economics at the Heritage Foundation. This is a reply to Heather Whitney’s recent post.

Heather Whitney’s recent post on the Takings Clause and Right-to-Work misses a crucial point: Federal law does not require unions to act as an exclusive representative. Thus Right-to-Work laws do not force unions to represent nonmembers free of charge.

The National Labor Relations Act (NLRA) allows unions that demonstrate majority support to negotiate as exclusive representatives. If they do so they must negotiate fairly on behalf of all employees, including those who do not pay dues. However unions may disavow (or not obtain) exclusive representative status and negotiate only for their members. Nothing in the National Labor Relations Act forces exclusive representation on unwilling unions.

The Supreme Court has consistently interpreted the NLRA this way. As the Court ruled in Consolidated Edison Co. v. Labor Board (1938) when faced with a challenge to the validity of a “members only” union:

Under § 7 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. They simply constitute the Brotherhood the collective bargaining agency for those employees who are its members.

The Supreme Court has already answered Heather’s question: “What of unions who adamantly do not want to be the exclusive bargaining representative?” As Justice Brennan wrote in Retail Clerks v. Lion Dry Goods, Inc., (1962) “’Members only’ contracts have long been recognized.” Unions do not have to represent nonmembers if they do not want to.

Usually unions do. Exclusivity gives them much more leverage at the bargaining table. It also allows them to benefit some workers at the expense of others. Seniority systems, for example, protect senior employees by requiring newer hires to get laid off first. Under members only contracts seniority systems would break down—new hires would opt out. So unions almost always choose exclusive representative status.

The law allows unions to do so. It gives them additional privileges and powers as exclusive representatives. But the law does not force unions to bargain exclusively. So I find it hard to see how Right-To-Work laws constitute a Takings. If unions do not want to represent non-members they do not have to. They provide services to nonmembers by choice, not by government fiat.