The Next Big Fight Over Organized Labor May Already Be Here

Striking down exclusive representation would allow labor organizers to give the boot to free-riding employees.


Joanna Andreasson

June's Supreme Court ruling in Janus v. American Federation of State, County, and Municipal Employees (AFSCME) freed public sector workers from being required to pay dues to unions to which they do not belong. It was kind of a big deal, and a single sentence in Justice Samuel Alito's majority opinion hints at what might be the next major legal fight over American unionism. "The State may require that a union serve as exclusive bargaining agent for its employees," Alito wrote. He then called that arrangement "a significant impingement on associational freedoms that would not be tolerated in other contexts."

The associate justice was likely talking about something called "exclusive representation." Section 9 of the Taft-Hartley Act of 1947—the federal law that set many of the rules still governing American labor unions today—established that only one union may represent workers in a given "bargaining unit." For example, all public school teachers in a school district must be members of the same union. If they want to join a different union, they have to go to a different school district. Imagine if the Elks Lodge could ban residents of a town from joining the Lions Club.

The legitimacy of exclusive bargaining power was not an issue in Janus, so Alito's decision to mention it in his ruling "seems to be inviting such litigation," says Michael Reitz, executive vice president of the Mackinac Center, a Michigan free-market think tank.

There are already some relevant cases in the pipeline. The National Right to Work Legal Defense Foundation, which represented Mark Janus in his lawsuit, has two ongoing challenges to exclusive representation requirements in Minnesota and Washington state. Both plaintiffs argue their First Amendment right to freedom of association is being violated. According to Patrick Semmens, a vice president of the legal defense group, Alito's nod to the issue indeed "strengthens those cases."

In a post-Janus world, some unions might have an incentive to agree. One of the arguments AFSCME made against Janus was that releasing nonmembers from having to pay dues would create so-called "free riders"—workers who do not contribute to an association but are nonetheless protected by it, thanks to exclusive representation laws.

Allowing for competition among unions might alleviate that worry. Striking down exclusive representation would allow labor organizers to give the boot to free-riding employees. Meanwhile, workers would be free to form new unions that might better represent their members' interests.