Union Bosses ‘Prefer That the Individual Employee Has No Independent Rights’

As eminent labor-law scholar Clyde Summers recognized, union officials “want unchallenged control over all aspects of the [workplace] contract, including its grievance procedure and arbitration which they created.” Image: University of Pennsylvania Law School

Late last month, a group of independent-minded Kentucky workers filed a court motion to intervene in a pending lawsuit, filed by AFL-CIO and Teamster union bosses, that aims to overturn America’s 27th state Right to Work law, approved by legislators and signed by Gov. Matt Bevin early this year. The workers submitting the motion are being represented free of charge by attorneys for the National Right to Work Legal Defense Foundation.

The workers seeking permission to intervene in Zuckerman v. Bevin are Barry Bright, a press operator in Lebanon, Ky., and Jacob and William Purvis, who are employed at the Leggett & Platt manufacturing facility in Winchester, Ky. They want to intervene to help defend Kentucky’s RIght to Work law because their freedom to keep their jobs without being forced to bankroll unwanted unions in their workplaces is at stake.

Supporters of Kentucky’s Right to Work law believe no one should lose his job simply for joining and financially supporting a union, or for refusing to do either. Many also cite the law as a key factor behind the unprecedentedly high rates of job-creating business investment flowing into Kentucky since the time of its adoption.

The statute is already being defended in court by the State of Kentucky. But the Foundation motion notes that its clients have a special interest in seeing that the law is upheld and their attorneys can offer legal arguments distinct from those raised by state attorneys.

The employee-intervenors’ brief focuses largely on rebutting union lawyers’ far-fetched, but nevertheless dangerous, argument that federal labor law and Kentucky’s Right to Work law operate in tandem to violate the Takings Clauses of Sections 13 and 242 of the Kentucky Constitution.

As Foundation attorneys explain, the Big Labor “takings” claim is especially preposterous when it comes to the “ostensible burden of representing nonmembers in contractual agreements.” Under federal labor law, it is actually union officials’ prerogative to “allow employees to individually pursue their own grievances without union involvement,” though employees who exercise that option risk having a grievance settlement thrown out if union bosses deem it to be “inconsistent with the terms” of the union contract.

But in practice union officials routinely choose to deny employees even the very limited freedom they have to pursue their grievances independently or with a nonunion attorney by cutting deals with employers requiring that employees “go through the union to pursue grievances formally or to arbitration.”

Why don’t union bosses want employees, including employees who aren’t union members and hold jobs in Right to Work jurisdictions where they can’t be required to pay union fees as a job condition, to be able to handle their grievances without Big Labor involvement? The Foundation brief cites, in part, the expert opinion of the late law professor Clyde Summers, an eminent authority on Organized Labor in the U.S. and around the world.

In a 1998 law journal article entitled “Exclusive Representation: A Comparative Inquiry Into a ‘Unique’ American Principle,” Summers wrote:

[Union officials] prefer that the individual employee has no independent rights . . . , [because they] want unchallenged control over all aspects of the contract, including its grievance procedure and arbitration which they created.

In light of the unchallenged fact that American union bosses have time and again wielded their monopoly-bargaining privileges for the specific purpose of securing a workplace deal that denies union nonmembers (along with union members) the choice to pursue their own grievances, it takes an enormous amount of moxie for AFL-CIO and Teamster officials to claim, as they do in Zuckerman v. Bevin, that they are entitled to be compensated for processing nonmember grievances.

Unfortunately, long and sad experience demonstrates that outrageous legal claims sometimes do prevail in court.

Therefore, National Right to Work Committee members and supporters in Kentucky and around the country who fought hard for the enactment of the Bluegrass State ban on forced union dues and fees owe a debt of gratitude to the employee-intervenors and their Foundation attorneys, along with Bevin and his legal team, for aggressively defending this ban in court.

The fact is, Big Labor schemes to overturn Right to Work laws on federal and state constitutional grounds have been going on since the first such laws were enacted in the 1940’s. They have never been upheld by higher federal and state courts, even in cases where they have met the approval of Big Labor-influenced judges in the jurisdictions where they were originally filed. Thanks to the strong arguments now being made in defense of Kentucky’s Right to Work law, freedom-loving Americans have ample reason to be optimistic Big Labor lawyers’ string of defeats will continue in the Bluegrass State.