Commentary

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

By Stan Greer | November 21, 2017 | 4:08pm EST
Protester holds sign that reads, "Stop the War on Workers." (Screenshot)

Nearly three quarters of a century ago, a unanimous U.S. Supreme Court concluded 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 … .”

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!

Contrary to what Right to Work foes like Harvard law professor and former Service Employees International Union lawyer Ben Sachs imply, union officials are actually free to refuse to process workplace grievances filed by union members and nonmembers for a wide array of reasons.

In her 2003 opinion for a unanimous three-judge federal panel in Neal v. Newspaper Holdings, Inc., Judge Ilana Diamond Rovner cited opinions from two federal circuits and the U.S. Supreme Court to show that, effectively, all union officials need do to fulfill their “duty of fair representation” upon being asked by a worker to handle a grievance, however meritorious, is provide “some minimal investigation” of the grievance.

After completing a “minimal” investigation, a union may without violating its “duty of fair representation” refuse to process a meritorious member grievance out of “consideration of such factors as the wise allocation of its own resources, its relationship with other employees, and its relationship with the employer,” Rovner concluded.

The law does prohibit union officials from discriminating against nonmembers by refusing to act on their grievances simply because they are nonmembers. However, it remains, as another unanimous federal appellate court panel concluded in 1995, “the union’s prerogative to make … decisions in the grievance process to protect the interests of the union as well as the employee.”

Consequently, unless a nonmember can demonstrate that, by refusing to process his or her grievance, union officials hurt their own institutional interests, they are likely safe from being found liable for a violation of their “duty of fair representation.”

The complaints of Big Labor partisans like Sachs about how, under Right to Work laws, employees don’t have to pay for union grievance processing that is apparently only obligatory if it benefits the union itself are completely disingenuous. This commonly offered excuse for forced unionism is a canard, pure and simple.

Stan Greer is a Senior Research Associate for the National Institute for Labor Relations Research.

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