For more than three-quarters of a century, federal courts and the National Labor Relations Board (NLRB) have explicitly declared it is permissible for employers to recognize and bargain with unions that represent their members only, and not workers who opt not to join or pay dues. It is permissible regardless of whether only a minority or a majority of the business’s front-line employees are members of the union in question, as long as no union certified or recognized as employees’ “exclusive” bargaining agent is already entrenched in the workplace.
At the same time, neither federal courts nor the NLRB have ever ruled that employers MUST recognize a members-only union that requests it. Employers may honor a union request to represent employees on a members-only basis, or turn it down. For several years now, officers of unions such as the United Steel Workers of America (USWA) have been engaged in a campaign to persuade the NLRB to revise its understanding of the law and force employers to bargain with minority unions on a members-only basis. This effort has so far been unsuccessful, but until recently no one claimed this means members-only bargaining doesn’t currently exist.
However, since Indiana adopted its Right to Work law in 2012, top bosses of suburban Chicago-based Local 150 of the International Union of Operating Engineers (IUOE) have been attempting to base a lawsuit to overturn the statute protecting employees’ freedom not to bankroll a union on the premise that, if members-only bargaining isn’t mandatory for employers, it has no legal significance.
The fact is, even if members-only bargaining were not permitted under federal labor law, IUOE Local 150’s argument that the Indiana Right to Work law violates the state constitution would still be wrong, as the Indiana Supreme Court unanimously concluded this week (see the link below).
However, Americans who care about the truth and the integrity of our legal system should be pleased to know that the opinion of the court explicitly rejected the brazen contention of union lawyer Dale Pierson, made again and again at oral arguments on the case in September, that “the law does not allow members-only representation.”
Chief Justice Brent Dickson, joined by three other judges (there was one separate concurring opinion), appeared puzzled by union officials’ stubborn clinging to a false contention that would not have won their case even if it were true, but remained firm in insisting that the truth be acknowledged:
The Union [contends] that “[c]hoosing to represent members-only bargaining units is not an option under the [National Labor Relations Act]” because the “[National Labor Relations Board] will not process a representation petition by a union seeking a members-only bargain unit” and “a union that proposes to represent a minority of the bargaining unit has no remedy if the employer refuses to bargain with it.” . . . We disagree. 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.