Labor unions often claim to favor democracy in the workplace in principle, but in practice is another story. Big Labor’s recent push for the so-called Employee Free Choice Act (EFCA), which would have allowed unions to circumvent secret ballot elections through card check organizing, is one major example. EFCA failed in Congress, but rules for voting a union out still heavily favor union bosses over workers. Unless this changes, union bosses will continue to undermined American workers’ freedom of association.
However, workers have an option they should know about. The National Labor Relations Act (NLRA) has a provision that may be the best kept secret in labor law. Known as de-authorization, it allows workers to opt out of joining a union as a condition of employment.
It is, quite simply, nearly impossible for workers to get rid of a union once it has been certified as their monopoly bargaining representative. The NLRA does not require an election at the end of a designated term—such as a given time period or after the expiration of a contract—to allow workers to decide whether they want to continue being represented by the incumbent union or not. In fact, some workers may never get the opportunity to decertify a union they don’t want representing them.
In non-right to work states, private sector workers employed in union shops are required to join the union as a condition of employment. If they decide they don’t want the union representing them, their only option is a decertification election, held after the expiration of a contract or a narrow 30-day window near the end of the third year of a contract. The union can circumvent a time window by agreeing to a new contract before the window opens—thus moving the window to the end of the new contract, when they can move it again.
For workers unsatisfied with a union’s representation, this can be a frustrating process. After all, less than 10 percent of America’s current union members have voted to have a union in their workplace—in many cases the union was already established and the worker had to join as a condition of employment.
Unlike decertification, a de-authorization election can take place at any time. It does not remove either the union as workers’ exclusive bargaining representative or workers’ obligation to abide by the collective bargaining agreement (the contract). It simply removes the union security clause from the contract, giving workers the choice of whether they want to be members of the union. If the workers are successful in de-authorizing a union, they are free to resign their memberships and stop paying union dues—thus creating a de facto right-to-work environment.
While de-authorization provides an outlet for workers who wish to exercise the rights of free association, the process is difficult. Workers who want to rid themselves of a union are completely on their own. Obviously the union will not help them and the company is forbidden to help by law. The company cannot even let the workers so much as use a copier for the petitions, which would be considered “aiding” the de-authorization effort.
Moreover, most union constitutions consider any attempt by a member to secede from the union—including on an individual basis—a punishable offense that can result in steep fines and even termination of employment.
Despite these uphill battles, de-authorization provides a viable solution for workers who cannot wait years to rid themselves of a union whose representation they do not want.
Private sector workers around the nation already have the de-authorization option available to them through the NLRA. However, the average worker does not know about these rights. More should be done to educate the rank and file union members of America. This could include posters notifying workers of their rights, similar to the Beck notices which the Obama administration recently pulled down, as well as email notifications.
Congress should also consider changing the election requirements for de-authorizations to bring them in line with other elections under the NLRA. Unlike other NLRA elections, which require a majority of votes cast, a successful de-authorization currently requires for 50 percent plus one of all workers in the bargaining unit. With a little knowledge and a level playing field, workers could enact right to work protections one company at a time.
For public sector workers, Governor Scott Walker’s reforms in Wisconsin point the way forward. Once state employees were no longer required to maintain union membership to keep their jobs, they left public sector unions in droves. Currently, 24 states do not allow public employees to de-authorize their unions. Governors and legislators in those states now have an opportunity to revamp their labor laws for state and municipal workers to give them a real choice.