Sunday, October 6, 2013
Catherine Fisk (University of California, Irvine School of Law) and Ben Sachs (Harvard Law) has recently posted on SSRN their forthcoming article in the U.C. Irvine Law Review entitled: Restoring Equity in Right to Work.
Here is the abstract:
Under United States labor law, when a majority of employees in a bargaining unit chooses union representation, all employees in the unit are represented by the union. Federal law, moreover, requires the union to represent all workers in a bargaining unit equally with respect to both collective bargaining and disciplinary matters. As a general rule, federal law enables unions to require employees to pay for the services that unions are obligated to provide them. Twenty-four states, however, have enacted laws granting union-represented employees the right to refuse to pay the union for the services that federal law requires the union to offer. As such, the intersection of federal labor law and state right to work laws results in a mandate that unions provide services for free to any employee who declines to pay dues.
This paper proposes three approaches to addressing this feature of U.S. labor law. First, the paper argues that under a proper reading of the NLRA states may not prohibit all mandatory payments from workers to unions. In particular, the paper shows that states must permit collective bargaining agreements requiring so-called objectors (or nonmembers) to pay dues and fees lower than those required of members. Second, the paper argues that in right to work states federal law ought to relax the requirement of exclusive representation and allow unions to organize, bargain on behalf of, and represent only those workers who affirmatively choose to become members. This proposal would implement a members-only bargaining regime in right to work states. Third, the paper contends that the NLRB ought to abandon its rule forbidding unions from charging objecting nonmembers a fee for representation services that the union provides directly and individually to them.
Given the recent discussion on this blog and elsewhere concerning the US Supreme Court recently taking cert. in the public sector, non-NLRA Harris case and the fragile continuing existence of Abood, this is a timely and relevant article providing a number of interesting theories on how right-to-work state laws and the NLRA should be interpreted so as to be consistent with one another and on how to provide a more equitable approach in this crucial area of labor law.