News Flash: Exclusivity Is a Benefit to Unions

The US 7th Circuit Court of Appeals ruled yesterday that Wisconsin’s right-to-work law is constitutional. The court referenced its own 2014 Sweeney decision, which was an unsuccessful challenge to Indiana’s right-to-work law.

There is a paragraph in the Sweeney ruling that deserves your attention, since it addresses union complaints about non-members being “free riders” – that is, receiving benefits from union representation for which they do not pay.

[W]e believe the union is justly compensated by federal law’s grant to the Union the right to bargain exclusively with the employer. The reason the Union must represent all employees is that the Union alone gets a seat at the negotiation table…. It seems disingenuous not to recognize that the Union’s position as a sole representative comes with a set of powers and benefits as well as responsibilities and duties. And no information before us persuades us that the Union is not fully and adequately compensated by its rights as the sole and exclusive member at the negotiating table.

Unions will grudgingly accept free riders if they can maintain exclusivity.

The 7th Circuit also addressed the unions’ new legal strategy of challenging right-to-work laws on Fifth Amendment grounds. If unions are having their “property” illegally taken, the court reasoned, it would be because the provisions of federal labor law require them to represent all members of the bargaining unit. Why then, aren’t the unions attempting to strike down as unconstitutional the National Labor Relations Act?

Current union legal strategy is to throw everything at right-to-work and see what sticks – not without reason, as we saw with Justice Sotomayor’s brainstorm during the Friedrichs oral arguments. If someone came up with a Twinkie defense for agency fees, we would see it employed.