So-Called ‘Duty of Fair Representation’ Is No Excuse For Forced Union Dues

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In a recent commentary for the Conservative News Service, I explain how union propagandists  routinely misrepresent U.S. Supreme Court and other federal court decisions concerning the “duty of fair representation.”  Led by the High Court, the judiciary has recognized that, whenever union bosses obtain monopoly power to represent all employees in a “bargaining unit” with regard to workplace matters under the auspices of federal government policy, this extraordinary power must be “subject to constitutional limitations . . . .”  This simple recognition of reality has been twisted by Big Labor apologists to concoct a phony excuse for compulsory union dues and fees:

In his 1944 opinion for the court in Steele v. Louisville & Nashville Railroad, Chief Justice Harlan Stone found that under Section 2, Fourth of the federal Railway Labor Act (RLA), “a union is clothed with power not unlike that of a legislature … .” Consequently, if the RLA actually permitted the forging of racially discriminatory contracts, as the railroad-company and union-boss respondents in the case contended, the statute would violate the Fifth Amendment rights of the employees who lost their jobs.

The Steele court allowed the RLA to stand only by concluding, somewhat creatively, that the law tacitly barred union bosses from using their “government-granted monopoly power to drive African Americans from the labor force,” as George Mason University law professor David Bernstein has put it. In the wake of Steele, the RLA and other federal and state laws that impose union monopoly bargaining on workplaces concurrently oblige the union officials who benefit thereby to “exercise fairly” the power conferred upon them without “hostile discrimination” against any of the employees under their control.

As the High Court and other federal courts have emphasized again and again in deciding cases that charge union officials with violating the “duty of fair representation” established by Steele, this “duty” is far from exacting. Indeed, in his 1990 High Court majority opinion in United Steelworkers v. Rawson, Justice Byron White declared the “duty of fair representation” is nothing more than a “purposely limited check on the arbitrary exercise of union power.”

Unfortunately, in public debates over Right to Work legislation and laws, which simply prohibit the termination of employees for refusal to join or bankroll a union they don’t personally want, and never personally asked for, Big Labor apologists often outrageously cite the requirement that union bosses not arbitrarily discriminate against any unionized worker or class of unionized workers as a justification for compulsory unionism!

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In a 1990 High Court majority opinion Justice Byron White declared that Big Labor officials’ putative “duty of fair representation” is nothing more than a “purposely limited check on the arbitrary exercise of union power.” Incredibly, apologists for union bosses often cite the requirement that they not arbitrarily discriminate against any unionized worker or class of unionized workers as a justification for compulsory union dues! Image: National Constitution Center

Forced Unionism to Protect the Worker Is a Canard, Pure and Simple

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