Amend the National Labor Relations Act to allow for voluntary bargaining

Michigan’s new Democratic trifecta has made it a priority to repeal the right-to-work law that the legislature passed in 2012. Proponents of repealing the law claim that right-to-work laws are “unfair” because they require unions to represent non-members in contract negotiations and grievance cases.

This argument, however, is based on a fundamental misunderstanding of labor law. And when unions have been given the choice of getting out of the obligation to represent non-members, they consistently have chosen to keep their monopoly bargaining powers instead.

In the private sector, almost all labor law is regulated by the National Labor Relations Act (NLRA), which largely prevents states from regulating the private sector, with the notable exception of permitting states to adopt right-to-work laws. These laws are simple: They prevent employers from firing workers for refusing to pay the union in their workplace. The reasoning for these laws, however, is a bit more complex due to other requirements within the act. 

Right-to-work represents an attempt to balance competing interests. Under the NLRA, a union is required to represent all similarly-situated employees in a collective bargaining unit. This obligation to represent all employees is a corollary of a power given to unions by the NLRA: the power to act as the exclusive bargaining representative for the entire collective bargaining unit.

Because of this power, individual employees cannot negotiate the terms and conditions of their employment on their own behalf. Instead, their employers are limited to negotiating with the union and barred from negotiating with workers directly. These restrictions apply to members and non-members equally.

This creates a tension between the interests of employees and the unions that represent them. Unions argue that they are forced to represent non-members and, as a result, they should receive some remuneration for their efforts. Non-members, on the other hand, are forced to accept union representation regardless of whether they want the union to speak for them. A right-to-work law provides partial relief for these employees by allowing them to not pay a union if they do not wish to be associated with one. States without such a law, on the other hand, conclude the unions’ position is more reasonable.

But there is a third way that better balances the interests of both employees and unions: voluntary bargaining.  

The solution is relatively straightforward: amend the NLRA to remove the duty of exclusive representation and provide for voluntary bargaining. Doing so would empower workers to decide the best form of representation for themselves. Some employees may choose to join the union if they conclude that collective representation yields better results. Others may determine they are better off representing themselves in negotiations. Removing the duty of exclusive representation allows workers to make this choice and frees unions to represent only their members. At the same time, employers would be empowered to negotiate with both represented and unrepresented employees.

Unions have been presented with this choice in the past. Shortly after right-to-work passed in Michigan, a state senator posed the question of whether unions wished to be relieved of their duty of exclusive representation to the then-president of the Michigan Education Association. After a pause, the union president answered, “No.”

His position was not an outlier. Several national unions, including the National Education Association, the American Federation of Teachers, the Service Employees International Union, and the American Federation of State, County and Municipal Employees, have signed a position statement expressly pledging to defend the duty of exclusive representation. In other words, when given the choice about whether they should be freed from the obligation to represent non-members, unions have resoundingly rejected that option.

But allowing for non-exclusive representation offers a number of benefits to workers. They no longer would be forced to associate with or (in non-right-to-work states) to pay a union with which they disagree.

Less obvious are the benefits such an arrangement would have for unionized workers. In a workplace without exclusive representation, unionized employees and non-unionized employees can directly compare the effectiveness of both approaches to bargaining. If a union is more effective at winning better terms and conditions of employment for its members than individual employees working on their own behalf, non-members will likely choose to join the union. Similarly, if individual employees are more successful when bargaining, unions will have to step up their efforts or risk losing members.

Either way, workers would be able to make a freer, more informed choice about what is in their best interests. The market forces in a non-exclusive bargaining environment also would have the benefit of strengthening employees’ ability to negotiate for a prosperous and successful workplace. The result would be a labor policy based on voluntarism, rather than coercion. And that would be in the best interest of all employees.

Steve Delie is the director of labor policy at the Mackinac Center for Public Policy, a research and educational institute in Midland, Mich.