Pope, Bruno, and Kellman argue compellingly that the labor movement should reinvigorate mass struggle by rallying around the constitutional rights to organize, strike, and act in solidarity. More provocatively, they contend that labor should abolish exclusive representation, a centerpiece of labor law, to further unleash that struggle. Most controversially, however, they seem to make a case for “right to work.” While they mention “right to work” only to distance themselves from it, they implicitly endorse it. They neither can nor should shy away from that implication of their essay.
The authors understandably distinguish themselves from “right-to-work” proponents, as few issues raise labor supporters’ ire more. That rage is justified. As I describe in my book, The Workplace Constitution from the New Deal to the New Right (2014), “right to work” is the slogan conservative activists chose in the 1930s and ’40s for their campaign against unions. Publicly, their goal has been to legally bar any agreement between a union and an employer that requires employees in a bargaining unit to join or support the union (known as “union-security agreements”). Privately, they were out to defund unions and by extension the Democratic Party. Today labor calls it the “right to work for less” because wages are lower in states that adopt right-to-work laws.
Labor cannot pick and choose between exclusive representation and union security.
But in the world the authors have invited us to imagine, a world without exclusive representation, a critique of union-security agreements might instead serve the authors’ plan for revitalizing the labor movement. The courts have interpreted exclusive representation to impose a corollary duty on a union to represent all workers in a bargaining unit. Without a requirement that workers support a union’s efforts on their behalf, unions face a free-rider problem long at the heart of labor’s case against right to work. If that duty were gone, however, the free-rider problem would go with it. Indeed, as Melvyn Dubofsky’s and Laura Weinrib’s histories of the Wobblies and the ACLU show, some labor radicals opposed union-security agreements before the 1935 National Labor Relations Act just as vigorously as they would later fight that law’s exclusive representation provision.
What, then, if the labor movement were to embrace not only the authors’ argument against exclusive representation but also its logical extension to union-security agreements? This is difficult to broach given the toxicity of right-to-work politics. But pursuing a world with neither exclusive representation nor union security might hold even more benefits for labor. Regardless, it is not clear that labor can pick and choose between them.
Consider the authors’ arguments against exclusive representation. Their critique turns in part on the legality of the arrangement. But to a far greater extent, they argue that guaranteed exclusivity dampens mass struggle by corroding a union’s relationship to workers, extinguishing workers’ freedom to change union allegiances, encouraging unions to sell their solidarity to employers and politicians, undermining union democracy, and hurting unions’ claims to advance industrial democracy.
These arguments also apply to union-security agreements. Before the advent of exclusive representation in the 1930s, union security took the form of “closed shop” contracts in which an employer agreed to hire only union members for specified jobs. The 1947 Taft-Hartley Act banned closed-shop agreements. The act expressly allowed “union-shop” agreements, however, in which an employer agrees to require all workers in a bargaining unit to join the union after being hired. Due to a decades-long litigation campaign by right-to-work advocates, today most unions and employers are limited to signing “fair share” agreements that allow workers in the bargaining unit to choose whether to join the union but require those who do not to pay fees that cover the union’s work on their behalf.
Union-security agreements can dampen mass struggle for the same reasons as exclusive representation: if exclusive representation relieves unions from having to rely on winning members, retaining their solidarity, and mobilizing them en masse to strike, so do union-security contracts. Indeed, the NLRA’s exclusive representation provision was understood to impose what unions had previously sought through closed-shop contracts. Union-security agreements shift power from workers to the union leadership. They also relieve unions from organizing the shop floor and competing with rival unions. As labor historian Nelson Lichtenstein has shown, that is precisely why the new industrial unions turned to union-shop agreements in the 1930s and ’40s. And, without exclusive representation, unions would have even greater incentives to exchange no-strike clauses for union-security provisions (the same might go for clauses barring secondary boycotts and limiting bargaining subjects). The authors have thus given us a strong argument against union security from within labor’s ranks.
Does this mean that labor supporters should reject the authors’ argument because of its right-to-work implications or reconsider the future of union security? Deciding this question requires weighing, in addition to the considerations above, the costs of opposing right to work and the benefits of critiquing union-security agreements.
One cost is that opposing right to work sometimes causes labor to appear anti-worker. Right-to-work litigants have long claimed that the First Amendment’s rights of speech and association protect workers from having to join or support a union. To fend off those claims, union lawyers have fought to keep constitutional rights out of the private-sector workplace and argued that workers’ speech and association related to wages, hours, and benefits is too trivial to warrant constitutional protection. Labor-friendly Supreme Court justices and our constitutional law echo these positions. (Note, however, that they conflict with the authors’ rights agenda.)
In spite of its current toxicity, the right to work has a long history of being invoked by union supporters.
The right-to-work issue has also given anti-union forces a worker face to hide behind. As one 1950s strategist put it, “powerful individual and corporative interests must be enlisted in” right-to-work campaigns as the “anonymous quarterbacks [who] determine the policy and call the turns,” but the movement should appear to be one of “housewives, farmers, small businessmen, professional people, and wage earners—no big business industrialists.” Litigation has been effective in securing that public image. Worker plaintiffs in the right-to-work cases that reached the Supreme Court in the 1950s, ’60s, and ’70s became officials in the National Right to Work Committee, its honorees, and the frequent focus of its publicity materials.
Historically, defending union security has cost unions some worker allies. Over a thousand workers participated in mid-century right-to-work lawsuits. Many were members, even leaders of competitor unions. They opposed exclusive representation and union-security agreements, not unions, usually because they supported a minority (and sometimes more progressive) union. Those plaintiffs equaled a tiny fraction of the workers who joined and supported unions in this peak period of union density but they were also not mere tokens.
Critiquing union security could benefit Pope, Bruno, and Kellman’s strategy as well. Adding it to their platform could sweeten a congressional bargain on labor law. If an end to union security turned on abolishing exclusive representation, it would allow labor to continue opposing right to work under the current labor laws. But labor might even consider embracing right to work now. It would support the authors’ rights agenda by freeing labor to fight for the constitutional rights of all workers and the constitutional significance of workplace conditions. Such an approach could also call right-to-work proponents’ bluff on their pro-worker message. Right-to-work advocates have long claimed to favor workers’ freedom of choice rather than oppose their right to unionize. Attaching the right to work to the authors’ rights claims could deprive right-to-work proponents of this prominent line of attack. It might also provide an opportunity to return the phrase “right to work” to its more capacious and varied meanings.
None of these strategies will guarantee a revived labor movement. Indeed, the authors may be wrong to reject exclusive representation. On balance, the bargain struck in the NLRA may have been worthwhile. Ditching union security might be even more ill-advised given the role closed-shop contracts played in securing even the low unionization rates that prevailed before the NLRA.
But anyone who accepts the authors’ argument against exclusive representation has to consider seriously its implications for union security. Otherwise, they may find themselves having gotten rid of exclusive representation by law only to find the same obstacles to a mass movement reintroduced by contract.