Viewpoint: Don't Rule Out Giving Up Exclusive Representation

In Labor Notes, New Labor Forum, and In These Times, Chris Brooks has argued that unions facing the loss of “fair share” payments should not look to free themselves of the obligation to represent non-members in the bargaining unit by giving up exclusive representation.

His position is based on, and illustrated by, his experience in Tennessee. He was an organizer for the Tennessee Education Association when the GOP-dominated state legislature amended the law covering collective bargaining for teachers to eliminate exclusive representation.

Brooks may be right, but I’m not persuaded. I think he overgeneralizes from his experience and oversells his position.

The core of Brooks’ argument is that giving up exclusive representation is a trap. While it may relieve unions of the “freeloader” problem, it ultimately weakens them in the face of an aggressively anti-union right wing. It weakens the bonds of solidarity that come from all the workers being represented by the same union.

It is also, he points out, being pursued by the right wing as part of a divide-and-conquer strategy. To solve the problem of freeloaders he urges unions to “win them over” rather than “write them off.”

Brooks makes important points. But…

ONE SIZE DOES NOT FIT ALL

Before the loss of exclusive representation in Tennessee, teachers unions there had been functioning in a “right-to-work” state for a few generations. In that environment, it makes sense for the union to view every non-member as a potential member.

However, if right-to-work comes to the public sector in New York, New Jersey, California, or other states where it never existed, every member who chooses to withdraw from the union will be a former member, not a potential member.

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I think it makes sense for a New York union to view those who leave differently from how a union in Tennessee views those who never joined. This doesn’t mean New York unions shouldn’t try to win them back, but it does mean leaving the union should come with a cost to the member who leaves.

One cost should be that you lose the right to be represented by the union. Other costs might be found within the framework of the collective bargaining agreement.

MAKE QUITTERS PAY

For example, the workers who operate and maintain New York City’s subways and buses pick their jobs by seniority on a regular basis. A majority of them pick their jobs twice a year. Your seniority determines what line or booth you’ll work on; your days off; the hours you work; when you take vacation; whether you work on holidays or not.

My fantasy “cost” for leaving the union is for the former members to lose their right to use their seniority to pick their job. They would have to pick after the union members.

Picking by seniority, as opposed to being assigned by a supervisor, is a clear victory of the union some decades ago. It should be seen as a benefit of union membership—and only for union members.

FLORIDA MODEL

The laws governing collective bargaining, including exclusivity, in the public sector vary from state to state. Unions in New York or California will face a different political and legislative environment than those in Tennessee or Texas.

Where giving up exclusivity might be a bad idea for unions in one state, it might be worth considering for unions in another.

In fact, the laws are so varied they provide an example of exclusivity without the duty to represent a non-member. Florida, a right-to-work state, currently provides for bargaining exclusivity for a union that has majority status, but does not require that union to represent non-members in the grievance procedure (Florida statutes 447.307 (b) and 447.401). This is probably worth looking at more closely.

PROVE THE UNION’S VALUE

I’m sure Brooks is right that some unions, if they didn’t have the duty to represent everyone in the bargaining unit, would write off non-members, hunker down, and be content with a smaller union. I think most unions would not do that.

For a union that wants to increase its membership and its power, the tasks without exclusivity are pretty similar to those of a union in a right-to-work state. Just as the union under right-to-work strives to bring non-members into the union, the union without exclusivity would strive to win workers back from other unions or “associations,” or from non-union status.

Either union would work to show that it does a good job, one worth supporting.

STARTING OUT STRONG

In his article in New Labor Forum, Brooks states in passing that ceding exclusive representation “might be okay for a high-functioning local with high union density.” It seems to me that should be the point from which to continue this critical strategic discussion.

Rather than the sweeping terms in which Brooks and others have conducted the discussion so far, labor activists should proceed with a state-by-state assessment of the strengths and weaknesses of the unions and the potential negatives and positives of giving up exclusivity—or of introducing other models—in response to right-to-work in the public sector.

When might it make sense to cede exclusive representation? Can we win something like the Florida model—bargaining exclusivity without the obligation to represent non-members in grievances—in some states?

Steve Downs is a retired NYC subway train operator and union officer.

This post is a response to Chris Brooks' article, "Don't Fall for the Members-Only Unionism Trap." Got thoughts on this issue? Send them to editor[at]labornotes[dot]org