It’s Time for Unions To Let Go of Exclusive Representation

Janus calls for a radical rethinking of labor law.

James Gray Pope, Ed Bruno, and Peter Kellman

Members of the Service Employees International Union hold a rally in support of the AFSCME union at the Richard J. Daley Center in Chicago, Illinois. (Photo by Scott Olson/Getty Images)

After Janus, pub­lic-sec­tor labor law will need restruc­tur­ing. Instead of try­ing to pre­serve as much as pos­si­ble of a bro­ken sys­tem, why not start exper­i­ment­ing with alter­na­tives? Ever since the 1950s, orga­nized labor has strug­gled to defend and tweak the sys­tem of exclu­sive rep­re­sen­ta­tion” estab­lished in the Nation­al Labor Rela­tions Act of 1935. We believe it is time to step back, change course and scrap exclu­sive rep­re­sen­ta­tion in favor of a sys­tem that would let work­ers join their union of choice. Such a move could also solve the free-rid­er prob­lem posed by Janus, which only held that work­ers can’t be required to fund a par­tic­u­lar union.

Abolishing exclusive representation could, depending on the details, help to shape and sustain the kind of unions American workers need: democratically controlled, inclusive across lines of race and gender, and effective at countering corporate power.

Under exclu­sive rep­re­sen­ta­tion, jobs are grouped into var­i­ous bar­gain­ing units. If a major­i­ty of work­ers in a par­tic­u­lar unit want a union, then that union becomes the exclu­sive” bar­gain­ing rep­re­sen­ta­tive of all work­ers in the unit. Should some of the work­ers become dis­sat­is­fied and wish to join anoth­er union, they must file for a decer­ti­fi­ca­tion elec­tion, in which no union” is one bal­lot option. In the cul­ture of Amer­i­can union­ism, this move is wide­ly regard­ed as scab­bing, and pro­po­nents of an alter­na­tive union risk ostracism.

When exclu­sive rep­re­sen­ta­tion was first pro­posed back in the 1930s, the ACLU, the NAACP and labor rad­i­cals con­demned it. They feared it would make unions more unre­spon­sive, exclu­sion­ary and con­ser­v­a­tive, and they were right. Exclu­sive rep­re­sen­ta­tion has allowed union offi­cials to sign con­ces­sion­ary con­tracts with lit­tle fear of com­pe­ti­tion from more mil­i­tant unions. Major­i­ty-white unions can ignore the inter­ests of work­ers of col­or, and major­i­ty-male unions those of women work­ers. (This exclu­sion­ary ten­den­cy was sub­se­quent­ly lim­it­ed by law, but only where union dis­crim­i­na­tion could be proven — a dif­fi­cult propo­si­tion now that overt­ly racist and sex­ist state­ments are infre­quent.) Exclu­sive rep­re­sen­ta­tion also allows lazy union offi­cials to sit back and col­lect their salaries with­out doing much for work­ers. Union democ­ra­cy leg­is­la­tion, enact­ed in 1959 over stren­u­ous oppo­si­tion from orga­nized labor, ame­lio­rat­ed the prob­lems of unre­spon­sive­ness and con­ser­vatism, but the law left enough loop­holes that the over­whelm­ing major­i­ty of unions con­tin­ue to oper­ate as one-par­ty bureaucracies.

Exclu­sive rep­re­sen­ta­tion also opened the door for the anti-labor right-to-work” move­ment, which brought us Janus. Like the ear­ly 20th-cen­tu­ry labor move­ment, which con­duct­ed a decades-long strug­gle to win the Nor­ris-LaGuardia Anti-Injunc­tion Act of 1932 and the Nation­al Labor Rela­tions Act (NLRA) of 1935, right-to-work lead­ers plot­ted an ambi­tious strat­e­gy cen­tered on a coher­ent vision of work­ers’ rights. Instead of tak­ing on the entire sys­tem of exclu­sive rep­re­sen­ta­tion, they tar­get­ed the pow­er of unions to require dues pay­ments. Begin­ning in the 1940s, anti-labor activists charged — some­times with rea­son — that labor boss­es” were forc­ing work­ers to pay dues even to unions that engaged in cor­rup­tion, pro­mot­ed caus­es opposed by their mem­bers (rang­ing from Stal­in­ism to white suprema­cy) or made sweet­heart deals with the boss.

Also like the old labor move­ment, these anti-labor forces ground­ed their case in the Con­sti­tu­tion. Work­ers, they claimed, enjoyed a First Amend­ment right to with­hold finan­cial sup­port from unions they opposed. State by state, they have been elim­i­nat­ing manda­to­ry dues pay­ments in both the pri­vate and pub­lic sectors.

Mean­while, orga­nized labor today clings to the sys­tem of exclu­sive rep­re­sen­ta­tion. Our most recent reform effort, the Employ­ee Free Choice Act of 2007 – 2009 (EFCA), would have tweaked the pro­ce­dure for cer­ti­fy­ing an exclu­sive rep­re­sen­ta­tive, replac­ing elec­tions with a card check” sys­tem. Primed by the decades-long right-to-work cam­paign, EFCA’s oppo­nents pounced and suc­cess­ful­ly pre­sent­ed them­selves as the true defend­ers” of work­ers’ rights. Labor boss­es,” they charged, were tak­ing away the all-Amer­i­can right to secret-bal­lot elec­tions.” In both the right-to-work and EFCA strug­gles, anti-labor con­ser­v­a­tives scored vic­to­ries by seiz­ing the moral high ground of labor freedom.

Exclu­sive rep­re­sen­ta­tion also opens the door to dam­ag­ing restric­tions on labor rights. Courts can make a prin­ci­pled argu­ment that, because gov­ern­ment con­fers the spe­cial priv­i­lege of exclu­sive rep­re­sen­ta­tion on unions, it can impose spe­cial con­straints as well. For exam­ple, oth­er orga­ni­za­tions like work­er cen­ters enjoy the First Amend­ment right to stage sec­ondary boy­cotts, a way to hold com­pa­nies account­able for their sub­con­trac­tors and sup­ply chains, as in the Coali­tion of Immokalee Work­ers’ suc­cess­ful Taco Bell boy­cott. But courts have upheld statutes pro­hibit­ing unions from doing the same. Of course, today’s ide­o­log­i­cal­ly dri­ven Supreme Court doesn’t need a prin­ci­pled rea­son to attack unions, but even lib­er­al, gen­er­al­ly pro-labor judges have signed onto opin­ions restrict­ing labor’s free speech rights.

What’s more, exclu­sive rep­re­sen­ta­tion is dat­ed. Designed to fit the immo­bile facil­i­ties and mono­lith­ic cor­po­ra­tions that were at the heart of Fordist mass pro­duc­tion, the sys­tem makes lit­tle sense in today’s world of fis­sured work­places and flex­i­ble pro­duc­tion. Work­ers who go through the ardu­ous process of estab­lish­ing an exclu­sive rep­re­sen­ta­tive in their bar­gain­ing unit may sud­den­ly find that their work has been con­tract­ed out, that they have been trans­ferred out­side the unit, that the unit has been moved over­seas, that it has ceased to exist, or that the com­pa­ny has been sold to anoth­er employ­er. With­out a sys­tem of exclu­sive rep­re­sen­ta­tion, such work­ers could sim­ply com­mence mem­bers-only bargaining.

Notwith­stand­ing all this, many good union peo­ple pas­sion­ate­ly defend exclu­sive rep­re­sen­ta­tion (see After Janus, Should Unions Aban­don Exclu­sive Rep­re­sen­ta­tion?”, Work­ing In These Times). They wor­ry that, with­out exclu­sive rep­re­sen­ta­tion, employ­ers will divide and con­quer work­ers. But sys­tems of union com­pe­ti­tion else­where con­tain safe­guards against divide-and-con­quer tac­tics. In France and Italy, for exam­ple, employ­ers are required to bar­gain over wages at the nation­al lev­el with the most rep­re­sen­ta­tive union in the indus­try, while oth­er unions co-exist and com­pete with that union, and can even dis­place it if work­ers shift their alle­giances. As with any leg­is­la­tion, the dev­il is in the details. Ten­nessee, for exam­ple, pro­vides for com­pe­ti­tion among teach­ers’ unions, but the sys­tem over­all denies the right to bar­gain col­lec­tive­ly and — as expect­ed from a red state — oth­er­wise dis­ad­van­tages unions.

Defend­ers also con­tend that, with­out exclu­sive rep­re­sen­ta­tion, unions will suc­cumb to free-rid­ing by non­mem­bers — but the free-rid­er prob­lem can be solved with­out forc­ing work­ers to finance the union that owns their bar­gain­ing unit. Law pro­fes­sor and for­mer union orga­niz­er Brishen Rogers has, for exam­ple, pro­posed requir­ing a stan­dard rep­re­sen­ta­tion fee but allow­ing work­ers to choose which union receives it. Such a law would cor­rect one of the flaws in the Ten­nessee sys­tem, name­ly that sweet­heart unions under­cut real unions by charg­ing low­er dues.

Some defend­ers cau­tion that a sys­tem of union com­pe­ti­tion will open the door to employ­er-dom­i­nat­ed unions. It should go with­out say­ing, how­ev­er, that any labor law worth sup­port­ing will incor­po­rate or improve upon the NLRA’s ban on com­pa­ny unions.

Final­ly, some peo­ple fig­ure that because anti-labor con­ser­v­a­tives want to ter­mi­nate exclu­sive rep­re­sen­ta­tion (see The Union Buster at Your Door”), it must be a good thing. We think that puts too much trust in the strate­gic judg­ment of con­ser­v­a­tives. It was, after all, anti-labor con­ser­v­a­tives who forced the union democ­ra­cy reforms of 1959 which, to their dis­may, enabled pro­gres­sive rank-and-file cau­cus­es to push unions toward more mil­i­tant and inclu­sive policies.

Abol­ish­ing exclu­sive rep­re­sen­ta­tion could, depend­ing on the details, help to shape and sus­tain the kind of unions Amer­i­can work­ers need: demo­c­ra­t­i­cal­ly con­trolled, inclu­sive across lines of race and gen­der, and effec­tive at coun­ter­ing cor­po­rate pow­er. Imag­ine what hav­ing mul­ti­ple unions with­in a work­place could look like. Work­ers could put imme­di­ate and effec­tive pres­sure on union offi­cials by shift­ing their dues pay­ments to com­pet­ing unions. Union offi­cials would have to think twice before endors­ing, say, Wall Street’s nom­i­nee for pres­i­dent over the strongest pro-work­er pres­i­den­tial can­di­date since the New Deal.

Instead of hav­ing to estab­lish major­i­ty sup­port before bar­gain­ing, work­ers could form minor­i­ty unions, begin bar­gain­ing, and win over their co-work­ers by demon­strat­ing the ben­e­fits of union­ism in prac­tice. Racial and gen­der minori­ties could form unions sep­a­rate­ly, if nec­es­sary, too. Courts could no longer plead the spe­cial priv­i­lege of exclu­sive rep­re­sen­ta­tion as a jus­ti­fi­ca­tion for uphold­ing spe­cial restric­tions on labor’s First Amend­ment rights.

Yes, abol­ish­ing exclu­sive rep­re­sen­ta­tion car­ries risks. But how much do we have left to lose? It’s time to admit that labor’s sit­u­a­tion today more close­ly resem­bles that of the ear­ly 20th cen­tu­ry than of the heady years fol­low­ing the NLRA. Our labor law sys­tem is beyond tweak­ing. We need the kind of bold vision that can pro­pel a long-term strug­gle for fun­da­men­tal rights. Freed from the alba­tross of exclu­sive rep­re­sen­ta­tion, orga­nized labor could reclaim the moral high ground in the strug­gle for labor freedom. 

James Gray Pope teach­es at Rut­gers Law School and serves on the exec­u­tive coun­cil of the Rut­gers Coun­cil of AAUP/AFT Chap­ters.Ed Bruno is a long­time union orga­niz­er with the Unit­ed Elec­tri­cal Work­ers and Nation­al Nurs­es Unit­ed.Peter Kell­man is a long­time labor activist and a mem­ber of UAW Local 1981-Nation­al Writ­ers Union.
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