There has been a surge in right-to-work laws over the past couple of years. Since 2012, four states (Michigan, Indiana, Wisconsin, and West Virginia) revoked union power that requires workers to pay union dues as a condition of employment.
Obviously, that does not sit well with Big Labor. Today, The Washington Examiner reported on the variety of lawsuits that unions have filed to regain their power of forced dues and how an opening to do so may have opened with the death of Supreme Court Justice Antonin Scalia.
I’ve previously discussed the legal theory behind the lawsuits in Indiana and Wisconsin, here and here. Briefly, two lines of thought are argued. First, right-to-work laws is an unconstitutional “taking” of union property. Second, an idea pushed by Harvard Professor Benjamin Sachs and Catherine Fisk, law professor at University of California at Irvine, is that the National Labor Relations Act section covering right to work “refers only to ‘membership.’ Therefore, states can only prohibit requiring that a worker actually become a member of a union or pay equivalent dues.”
There has never been a successfully lawsuit against a state right-to-work law. But this has not stopped labor unions from filing more challenges to right-to-work laws as they are increasingly enacted. As The Washington Examiner notes:
The West Virginia AFL-CIO labor federation officially notified its state's attorney general in May that it would challenge the state's new right-to-work law on constitutionality grounds. The state is under the jurisdiction of the 4th Circuit Court of Appeals, one of the more liberal circuits.
A challenge to Idaho's law particularly worries right-to-work fans because that state is under the jurisdiction of the 9th Circuit Court of Appeals, generally considered the most liberal one.
‘What the unions are looking for is a split between the circuits. That would compel the Supreme Court to step in and resolve the issue,’ Semmens said.
So, unions see a path to the U.S. Supreme Court. More importantly, if a liberal-leaning justice is appointed, the legality of right-to-work laws could be in jeopardy. This is disappointing because a circuit court has cited that the congressional intent of NLRA Section 14(b), which allows states to pass right-to-work laws, “clearly showed that the drafters of the law did intend to allow states to prohibit all dues collection.”
A judicial decision outlawing right to work would take away millions of workers’ statutory right to choose whether or not to pay union dues.
The main contention with right to work from labor unions and their progressive allies is that unions as exclusive representatives must represent union and non-union employees in collective bargaining and grievances—even in right-to-work states. With that duty of fair representation, the argument is workers are “free loaders” if they exercise their right to refrain from paying union dues. It is important to note that non-union members have no choice but to accept union services.
However, this line of thought bypasses the part where unions greatly benefit from exclusive representation. As an exclusive representative that union is the only party permitted to bargain with the employer and the employer must bargain in “good faith” with the union. This shields the exclusive representative from competition from other unions and prohibits individual workers from bargaining for themselves.
The law should not grant a private organization, such as a union, the authority to take away an individual worker’s freedom to negotiate for themselves or seek representation that is better suited for them. Even with right to work in place, employees still must work under a union contract that they may not want.
A reform to federal labor law that would eliminate the purported “free rider” problem and increase worker freedom is obvious. Instead of a patchwork of states with and without right-to-work laws and unions filing lawsuits all over the country, which wastes tax dollars, just eliminate the doctrine of exclusive representation.
Currently, under the NLRA, if a majority of employees at a workplace vote in favor of union representation for the purposes of collective bargaining, that union then becomes the exclusive representative of all the employees at that workplace, including workers who voted against unionization.
Instead, when a union wins an election they should only represent and secure dues payments from active and willing members. Workers opposed to unionization would be free to negotiate their own terms and conditions of employment.
Eliminating exclusive representation solves the “free rider” problem. Unions would no longer have the duty to fair representation, which requires them to bargain and represent non-union members in grievance procedures. Another benefit to unions is it would make unions more receptive to the needs of their membership.
Determining one’s work terms is a private choice and should be free of government interference. Workers benefit by making the choice that is right for them instead of being forced into a one-size-fits-all contract covering all workers in a given bargaining unit.
A system of individual choice is not unheard of. In 2000, New Zealand enacted the Employment Relations Act, which states all membership in a union is voluntary and an employer cannot give any preference in hiring or obtaining work to union or non-union workers.
Only workers that want union representation should work under a union contract. The law should reflect that principle.