Exclusive Representation

When a union is selected to represent employees in an "appropriate" unit of workers, the union alone has the legal authority to speak for all employees, including those who neither voted for nor joined the labor organization. No other union, individual or representative may negotiate terms and conditions of employment, and the individual employee is effectively deprived of the opportunity to represent his or her own interests.

This is known as the doctrine of exclusivity which the U.S. Supreme Court upheld in a 1944 case, J.I. Case v NLRB.

Under the doctrine of exclusivity, the interests of union officials win out over the interests of nonunion workers. The NLRA and related labor laws are usually portrayed as benefiting employees, but the laws take away legally and practically an individual’s right to price his or her own labor and to work under conditions which are personally agreeable. The sale of an employee’s labor is a private, nongovernmental activity. Unions are voluntary, private organizations clothed by law with the legal power to advance their interests, even when the union’s interests conflict with the personal goals of those employees whom they exclusively represent.

Collective bargaining, by its nature and without exception, involves a trade off of individual interests so that the group as a whole may benefit. Unions typically defend exclusivity by promoting it as a principle of majority rule and analogizing it with congressional elections. A member of the House of Representatives represents all citizens in a district, not just those who voted for the representative, so the argument goes.

The democratic majority rule argument may sound good, but in a union only setting it is not an apt comparison. Unions are private institutions. They make decisions in private, nongovernmental matters. They are private organizations operating in the workplace that are granted exclusive bargaining status by government. In other countries, notably France, exclusivity is not mandatory and several unions may compete in the same workplace. Majority rule is less burdensome to individual workers in places where exclusivity is not mandated.

Freedom for individual employees demands a bright line of distinction between private and governmental actions. Individuals should be empowered to make choices in accordance with their best interests—to go along with the majority or not—exercising either choice without penalty. But under the NLRA, collective bargaining contracts penalize a worker who refuses to side with the majority under threat of losing his or her job. Exclusive representation is equivalent to granting governmental coercive power to unions, even in circumstances where an individual employee might be harmed.

As a quid pro quo for the right of exclusivity, the union is required to represent all employees in the bargaining unit, whether or not they are union members, fairly, in good faith, and without hostility or discriminatory or arbitrary conduct.

This is known as the union’s duty of fair representation, and it is a federal obligation that was judicially created, dating back to the 1944 Railway Labor Act (RLA) case of Steele v Louisville & Nashville Railroad. 7  There the Court held that the Railway Labor Act implicitly "expresses the aim of Congress to impose on the bargaining representative . . . the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them." 8 

Almost ten years later, the Supreme Court applied the fair representation principles developed in the RLA cases to the NLRA. 9  In 1962 the NLRB decided Miranda Fuel Co., 10  holding that a breach of the duty of fair representation amounted to an unfair labor practice under the NLRA. The Board decided that "Section 7 [of the NLRA] . . . gives employees the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment." 11 

Beck rights are founded on this theory of the union’s breach of the duty of fair representation.