Sunday, January 13, 2013

Estreicher on "Right to Work"

EstreicherSam Estreicher recently published an essay in the National Law Journal, entitled "Right to Work is a Misnomer."  In the essay, Estreicher provides a nice, brief explanation of why the right to work rhetoric is off base.  Most readers are aware of the problem, but it's nice to see an explanation that clearly explains it for non-labor experts.  The concluding paragraph is particular apt:

"When opponents insist on a right to free ride on union representation, they have seized the rhetorical high ground of liberty and job growth to conceal a more prosaic, and often politically partisan, motive — to deprive unions of a justifiable funding mechanism so that they no longer can play a useful collective-bargaining role in our society."


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I thought his title was particularly funny, given his adoption of the euphemism "union security" for forced-unionism agreements. And his failure to discuss the members-only bargaining option was just disingenuous.

Posted by: James Young | Jan 14, 2013 6:34:28 PM

James: How is "members only bargaining" not a violation of the union's duty to fairly represent all members of a union bargaining unit (not just members of the union)?

Posted by: Joseph Slater | Jan 15, 2013 9:46:28 AM

Please try not to be deliberately obtuse, Joseph. You are well aware that unions retain the right to eschew monopoly bargaining and seek to represent only their members. No monopoly barganing: no DFR.

Posted by: James Young | Jan 15, 2013 3:22:32 PM

No, James, I don't know that, and I used to represent unions in right-to-work jurisdictions. I do know that the unions have a DFR in contract negotiations toward members of the bargaining unit who are not members of the bargaining unit, so I am trying to understand this new theory RTW folks seem to be pushing that unions can negotiate contracts that only cover actual union members. Is the idea that these are not "recognized" unions under the NLRA? Or something else?

Oh, and seriously, do you always have to be such a jerk?

Posted by: Joseph Slater | Jan 16, 2013 6:32:38 PM

I agree that "union security" is a euphemism, but it's nowhere near the Orwellian duplicity of the phrase "right to work." These laws don't give workers the right to anything. You might as well call them "right to a unicorn" laws, since unicorns are also a. shiny and awesome, and b. not something anyone gets when you pass such a law.

A true right to work law would be a law that gives people a job on demand-- not exactly the sort of law I typically see conservatives espousing. Sounds more like communism!

I would say that Mr. Young's false statement that the article fails to discuss members-only bargaining (see paragraph four of the article for Estreicher's explanation of why it is not economically viable) is itself "disingenuous," but I suspect that it really just reflects a failure to actually read past the title of the article.

Posted by: Anon | Jan 16, 2013 8:40:08 PM

I'm curious, Joseph: What's your authority for the tautological proposition that "unions have a DFR in contract negotiations toward members of the bargaining unit who are not members of the bargaining unit"? Educate me, because I've never heard of such a thing. Unions owe the DFR to all bargaining unit members, whether they are UNION members or not. Members-only bargaining means that the union would represent only their members, not a bargaining unit under the NLRA and hence, would owe no duty to those who do not join or pay dues voluntarily.

As for questioning the principle to which I refer, the Supreme Court long ago reaffirmed the right of a union to negotiate only for those who want representation, and demonstrate that desire by joining the union and paying its dues voluntarily. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 236-37 (1938); ILGWU v. NLRB, 366 U.S. 731, 736 (1961); Retail Clerks v. Lion Dry Goods, 369 U.S. 17, 25-26 (1962).

OK. I've shown you mine. Now you show me yours.

And yes, "Anon," I read Estreicher's article, including paragraph four. He merely hints that unions could “limit negotiated improvements to those who pay dues,” but dismisses it with value-laden hedging (they are not “feasible”) and repeats his presumption that monopoly bargaining results in “negotiated improvements” for all workers. Calling that an "explanation" gives far too much credit.

Posted by: James Young | Jan 17, 2013 6:36:52 PM

I didn't call it an "explanation," I called it a discussion. Setting semantics aside (although I think that distinction is a meaningful one), though, it IS an explanation, which fills an appropriately small portion of a short article.

At root, the issue here is quite simple. A representative's bargaining strength is directly proportional to the degree of damage he can do to the employer by withholding the labor of his clients. This is why Scott Boras has more leverage than the agent for some random 24-year-old player in Single-A baseball. The NLRA was set up for the specific purpose of increasing employee bargaining power by permitting exclusive representation (i.e., allowing labor to be aggregated to increase the level of damage that can be caused by withholding it). Saying "but you could have nonexclusive representation!" is utterly beside the point, because nonexclusive representation does not serve the purposes of the statute. Estreicher, correctly, heads off this irrelevant tangent in a few lines.

Posted by: Anon | Jan 18, 2013 5:43:07 PM

I'm always impressed when someone dismisses liberty as a "tangent."

Posted by: James Young | Jan 19, 2013 5:26:59 PM


It's black-letter labor law that unions have a DFR to members of the bargaining unit who are not actual union members. See, e.g., Abilene Sheet Metal v. NLRB, 619 F.2d 332 (5th Cir. 1980) (refusing to represent grievant because of his previous nonunion employment and nonmember status was a DFR violation); United Teachers of Dade v. School District of Miami-Dade Co., 38 FPER ¶ 86 (Fl. App. Ct. 3d Dist., Sept. 7, 2011) (ULP for union to have a policy, in a public-sector “right to work” jurisdiction, of not representing teachers who did not pay dues in performance evaluation meetings). It is also black-letter labor law that the DFR extends to contract negotiations as well as grievance/arbitration representation. See, e.g., ALPA v. O'Neil, 499 U.S. 65 (1991). It is also black-letter labor law that a union certified under the NLRA is the exclusive representative of all members of the bargaining unit, and thus they can't "disclaim" non-union members, nor bargain a contract that doesn't cover them.

Posted by: Joseph Slater | Jan 22, 2013 6:16:48 AM

So, Joseph, you respond to my argument by changing the subject? Did you miss the part (assuming you did, I will repeat it) where I said "Members-only bargaining means that the union would represent only their members, not a bargaining unit under the NLRA"? Too thin. Anorexic, in fact.

Of course, it is also black-letter law that unions can disclaim monopoly bargaining status and thereafter negotiate only on behalf of their members.

Try to keep up. And avoid sophistry and address the point I actually made, rather than the mistake that you wish I had made.

Posted by: James Young | Jan 22, 2013 6:45:42 PM


Getting past the part where you are, again, gratuitously being a jerk, your claim is unclear, and to the extent it's coherent, it's absurd. First, a union that is certified under the NLRA most definitely can NOT "disclaim" majority, exclusive representative status.

Second, are you suggesting that a union could/should avoid recognition/certification under the NLRA and then try to bargain with the employer? If so, that would be pointless and likly illegal. The employer would have no duty to bargain or otherwise deal with a non-certified/recognized union, and simply would refuse to do so. And even imagining, quite hypothetically that an employer might consider bargaining when it had no obligation to do so, it would almost certainly violate Sec. 8(a)(3) for an employer to discriminate in favor of pro-union employees by bargaining a contract that covered them (and gave them superior wages/hours/conditions) but not the anti-union employees.

Finally, you realize that what you are proposing doesn't actually happen in the real world, right? Ever think about why that might be? And spare me the cites to Consolidated Edison -- that case was decided in the 1930s, before DFR law existed, and (since it was pre-Taft Hartley) back when the closed shop was still legal.

Posted by: Joseph Slater | Jan 23, 2013 6:33:03 AM

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