So-Called ‘Burden’ of Monopoly Bargaining Is Actually Optional
With the passage of a Right to Work measure by the state Senate last night, it is likely Wisconsin will become the 25th state to prohibit private-sector compulsory union dues and fees within the next week or so. But while Big Labor may well be losing a major legislative battle in the Badger State, union propagandists continue to enjoy remarkable success in spinning print and electronic media reporters on the merits of the Right to Work issue.
And what may be the union hierarchy’s greatest “framing” achievement of all is reflected in the fact that vast numbers of newspaper, TV and radio reports regarding the legislative battle that is now unfolding in Madison uncritically echo Big Labor’s false premise that federal law prohibits employers from recognizing and bargaining with unions that represent their members only, and not workers who opt not to join and pay dues.
The AP story linked below (“Unions have to represent both members and nonmembers in workplace grievances and in other situations”) is but one of dozens and dozens of examples.
A Google search of news coverage of Wisconsin’s Right to Work battle since the beginning of this year indicates that not a single report in the mainstream media has acknowledged the fact that just last year the Indiana Supreme Court actually examined the contention of International Union of Operating Engineers Local 150 lawyer Dale Pierson that “the law does not allow members-only representation,” and unanimously concluded that what Pierson asserted was false.
And the Hoosier High Court’s finding was far from a novel one. For example, in his 1993 book Agenda for Reform, then-Stanford law professor (now emeritus) William Gould, who went on to serve four years as the President Bill Clinton-appointed chairman of the National Labor Relations Board (NLRB), acknowledged that federal law “permits ‘members-only’ bargaining without regard to majority rule or an appropriate unit and without regard to exclusivity.”
Gould could state this with complete confidence in large part because of a series of U.S. Supreme Court decisions dating back to Consolidated Edison v. NLRB (1938). In delivering the opinion of the court in this case, Chief Justice Charles Evans Hughes was crystal clear:
Under Section 7 [of the NLRA], the employees of the companies are entitled to . . . bargain collectively through representatives of their own choosing. The 80 per cent of the employees who were members of the [International] Brotherhood [of Electrical Workers union] 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.
On this point the contracts speak for themselves. They simply constitute the Brotherhood the collective bargaining agency for those employees who are its members. . . . Upon this record, there is nothing to show that the employees’ selection has been superseded by any other selection by a majority of employees so as to create an exclusive agency for bargaining under the statute, and in the absence of such an exclusive agency the employees represented by the Brotherhood, even if the were in the minority, clearly had the right to make their own choice.
Decades later, the High Court confirmed in cases such as Retail Clerks v. Lion Dry Goods (1962) that members-only bargaining remains permissible under the NLRA as amended by the 1947 Taft-Hartley Act.
Looking at such cases, the Indiana Supreme Court, which took up the question while considering an effort by IUOE Local 150 officials to overturn the Hoosier Right to Work law adopted in 2012, concluded that monopoly-bargaining arrangements under which officers of a particular union represent nonmembers as well as members during negotiations with the employer are actually “optional” under federal law.
In his November 2014 majority opinion upholding Indiana’s Right to Work law, Justice Brent Dickson bluntly noted:
The union’s federal obligation to represent all employees in a bargaining unit is optional; it occurs only when the union elects to be the exclusive bargaining agent, for which it is justly compensated by the right to bargain exclusively with the employer.
Indeed, through monopoly bargaining, union officials can effectively render every employee dependent on the union for obtaining pay increases and better benefits and for keeping his or her job secure. Monopoly bargaining is an extraordinary benefit for union bosses, but it is of highly questionable utility for the individual employee. Indeed, it is indisputably a detriment for many employees.
Therefore, it requires extraordinary moxie for union propagandists to refer to Big Labor’s federal monopoly-bargaining privileges as a “burden” for which union officials deserve “compensation”!