Last week in Harris vs. Quinn, the U.S. Supreme Court put unions in a bind when it ruled that unionized home-care workers cannot be required to pay for the representation that unions are required by law to provide to them. In cases across the country, including at least one in California challenging the rules for public school teachers (Friedrichs vs. California Teachers Assn.), lawyers are now asking courts to extend the rule of Harris to all public employees and to prohibit government employers from requiring employees to pay their fair share of union representation.
Requiring unions to offer free representation to workers who do not want a union in the first place makes no sense. Nor does it make sense to have a system in which workers can benefit from union representation without paying their fair share.
So, to alleviate this double bind that courts would impose on unions and workers, we propose a simple reform: Unions should not be required to represent workers who do not want, and who decline to pay for, such representation.
To be fair, it's not just the Harris vs. Quinn rule that creates this double bind. It exists in all 24 states that have enacted right-to-work laws.
In every state, workers who want to collectively bargain with an employer must get support from a majority of the workers in a unit (sometimes a whole workplace, sometimes a particular group of employees). When the union gets majority support, it has a legal duty to bargain on behalf of all the workers in the unit, including those who object to the union.
This is the so-called rule of exclusive representation, and it applies everywhere in the country.
In right-to-work states, however, objecting workers can refuse to pay the union for its services. Hence, the double bind: Unions are obligated to provide free services for workers who don't want a union.
We can and should fix this. Where unions are unable to require objecting workers to pay fees — whether it's in right-to-work states or in work situations that fall under Harris vs. Quinn — we should get rid of the rule of exclusive representation.
Under such a proposal, workers who don't want a union would have a right to be genuinely nonunion: They wouldn't be subject to the terms of the collective bargaining agreement, they wouldn't have to interact with their employer through a collective agent, and they wouldn't be required to pay anything to a union they didn't vote for. Unions, for their part, would be required to represent only those workers who actually want representation.
What would this mean in practice?
Let's say, for example, that the rule of Harris was extended to California's public school teachers. We would argue that teachers should then be permitted to opt out of the union's collective agreement and negotiate individually (or through a nonunion group) for different wages, performance standards or other terms of employment. The teachers union would be responsible for negotiating contracts and handling employment disputes only for its dues-paying members. The district could not treat nonunion teachers worse or better than their union counterparts in order to encourage or discourage unionization, but there might nevertheless be different contracts and work conditions depending on whether a teacher was represented by the union.
This reform would force unions to prove that they provide valuable services. If the union could secure wage and benefit gains through collective bargaining, then workers would have every incentive to sign up and pay dues (assuming, of course, that the cost of dues was lower than the benefits the union provided). If the union couldn't deliver the goods, then workers wouldn't join and wouldn't pay. In either case, the success of unions would depend on their ability to succeed for workers.
Eliminating exclusive representation would have costs. Exclusive representation ensures that management faces a single, collective voice on the other side of the negotiating table. Management rarely wants to bargain with different unions representing employees doing the same job. School districts and principals, for example, might find it difficult to administer different pay and benefit rules, as well as performance evaluation standards, for teachers in the same school.
Nonetheless, the system would be more streamlined than one in which management bargains with all its workers as individuals — the default position in both public and private workplaces without unions — and the benefits of alleviating the double bind would outweigh any costs to bargaining efficiency.
Requiring workers to pay their fair share of union representation makes good sense. But if courts forbid this sensible practice, then unions should no longer be bound by the rules of exclusive representation. In a Harris vs. Quinn world, unions should be able to represent only their members, and only members should be in unions.
Catherine Fisk is a professor at the UC Irvine School of Law. Benjamin Sachs is a professor at Harvard Law School.
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