Members-Only Unionism in Right-to-Work States

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

In a new paper, Catherine Fisk and I urge the National Labor Relations Board to relax the rule of exclusive representation in right-to-work states.  We argue that federal labor law should allow unions in those states to organize, bargain on behalf of, and represent only those workers who affirmatively wish to become members of the union.  We propose, that is, a regime that permits members-only or “minority” unionism in right-to-work states.

In light of the blog’s recent discussion of coercion and libertarianism (here, here, here and here), it’s worth summarizing our basic argument about minority unionism.  From the paper:

Right-to-work laws reject the notion that all employees in a bargaining unit should be required to provide financial support to the union selected by the majority. There is, accordingly, a tension between state right-to-work regimes and the federal rule of exclusive representation, under which the union has an obligation to represent equally all employees in the bargaining unit. In brief, federal law requires unions to represent all employees in the unit while state right-to-work laws give workers the right to refuse to contribute to that representation . . . .

A principled approach to addressing this tension is to relax the requirement of exclusive representation and allow unions to organize, bargain on behalf of, and represent only those workers who affirmatively choose to become members. Those workers who wish to join a union and bargain collectively in right-to-work states should thus be permitted to construct a bargaining unit that includes only those workers willing to pay for union representation. Such a change in the law would simply take the right-to-work concept to its logically consistent and fair conclusion. It would allow workers who do not want to be union to genuinely be non-union: they would owe nothing to the union, they would not be covered by the collective bargaining agreement, and they would pursue interactions with the employer without union interference. Unions, for their part, would no longer be obligated to represent those workers who do not desire such representation and who do not wish to pay for it. And workers who wish to unionize would no longer be required to subsidize representation for their nonmember co-workers who do not desire unionization.

To be clear, the revised rule would still require employers to bargain with unions.  But, by extending the bargaining obligation to members-only unions, it would encourage a form of unionism that should have appeal to libertarians.

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