Michael P. Tremoglie Aug. 31, 2012, 12:00pm
PHILADELPHIA (Legal Newsline) - One of the more controversial labor law initiatives in modern times - the right-to-work law - is fraught with confusion and contention.
Union opponents have termed right to work laws as immoral, illegal and unconstitutional. Indeed one union, the International Union of Operating Engineers Local 150 (IUOE), filed suit against the state of Indiana claiming the state's newly enacted law was tantamount to slavery.
"The right-to-work law in Indiana forces Local 150 and other unions to provide identical services to workers whether or not they pay dues," said Ed Maher, communications director for IUOE Local 150.
"When a worker opts out of membership, the union still has an obligation under the National Labor Relations Act to represent them. If we fail to provide equal service regardless of factors such as race, gender, religion, or union membership, we would be charged with a 'Duty of Fair Representation' charge."
The union's rationale is that federal labor law requires that a union represent all the employees in a bargaining unit regardless of their union membership status. Since nonunion employees gain the purported benefits of a union's collective bargaining with an employer, they are therefore known derisively as "free-riders" by labor unions and labor union advocates.
Local 150 claimed the fact that it was being forced to provide a service for free was a violation of the 13th Amendment to the U.S. Constitution which prohibits slavery.
Their lawsuit asserts, "The NLRA imposes upon labor unions such as Local 150 an obligation to represent fairly all employees in any given bargaining unit where a majority of those employees have designated or selected Local 150 as their bargaining agent. This duty of fair representation applies to all aspects of the union's relationship with the employees it represents."
Maher draws a parallel between the 13th Amendment to an article in the Indiana Constitution which outlaws forced service without compensation. He says that it is unlawful for unions to collect dues from free riders, "despite the fact that we are legally obligated to provide services including contract negotiation, grievance representation, and legal assistance."
According to Maher, unions have no choice but to represent workers who opt out and they collect no revenue for this representation. He mentioned that federal labor law already allows workers to opt out of union membership and pay only the costs associated with negotiating the agreements they work under. The right-to-work law prohibits the union's ability to collect revenue for the services it is obligated to provide, he says.
"The Supreme Court decided decades ago that workers cannot be forced to be a union member and cannot be forced to pay dues," Maher said. "The only difference is that right-to-work laws reduce union's collectible fees to zero. This is not a pro-worker law, but an anti-union law."
W. James Young, an attorney with the National Right to Work Legal Defense Foundation, rejects the Indiana comparison.
"It's the judicially-implied 'Duty of Fair Representation' which arises from federal law, to-wit, the National Labor Relations Act," Young said.
"In fact, (the unions) concede that point, so I don't know how they can say it. The charge would be filed with the National Labor Relations Board, a federal agency; Indiana would have no role in enforcing that duty."
Young also claims the assertion that a union must provide representation to everybody in a bargaining unit is the choice the union makes in order to have what he refers to as "monopoly" bargaining rights. He maintains that a union chooses to represent everybody because they want the employer to be mandated by federal law to negotiate with them. This can only happen if the union chooses to represent everyone in a bargaining unit.
Maher strenuously objects to Young's position.
He said that when Indiana's right-to-work law was nearing final vote both sides aggressively lobbied legislators. The union learned that lawmakers were being told that unions have no obligation to represent the workers who opt out and the law would not unduly burden unions, Maher said.
"Knowing full well that excluding nonmembers from a bargaining unit is unlawful at the most basic level, we countered these claims by petitioning the National Labor Relations Board to exclude non-members in one of our existing bargaining units," he said.
It took one day, Maher emphasized, for the NLRB to respond that "...a members' only bargaining unit is not an appropriate bargaining unit within the meaning of section 9(a) of the Act, and further processing of a petition seeking such a unit would not be appropriate."
"So right-to-work advocates are telling lawmakers that members-only units are allowed, and we are telling lawmakers that they are not," he said. "What better way to put the matter to rest than by actually petitioning the body that interprets and enforces national labor law - the National Labor Relations Board? We did just that, and in one day we were told that it was unlawful.
"When organizing a new bargaining unit, you cannot choose only to represent those who would support the union. This is why there are elections. If a majority supports the union, the union bargains on behalf of everyone. If the majority opposes the union, the union does not represent the unit at all. Anti-union advocacy groups seem to take issue with this process, but we regard it as a pure form of democracy."
Young fervently disputes this.
"Only when the union is the monopoly bargaining representative does the 'Duty of Fair Representation' apply," Young said.
"Unions have the right to disclaim monopoly representation. Unions can opt out of representing all the workers and choose only to represent their members and they would not be charged with a 'Duty of Fair Representation' charge if they did.
"Employers are not required by federal law to bargain with minority unions."