The compulsion prescribed by the federal National Labor Relations Act is often viewed by the labor movement as one of its prized possessions. This privilege of being protected from competitive pressure, however, may be one of the largest impediments to unions attempting to break out of the old model.[*]
In order to represent all employees in a collective bargaining unit (and in the 26 non-right-to-work states, to compel those employees to pay dues or agency fees), the union needs to be the “exclusive representative” of all employees in a particular bargaining unit. If unions want to compel employers to negotiate, they must have exclusive representation as required by Section 9 of the NLRA.
The NLRA gives unions exclusive representation or monopoly bargaining power if they have been selected by a majority of the employees in a collective bargaining unit:
Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.
If unions choose to be the exclusive representative of workers, they automatically receive a legal monopoly over negotiation and representation. The cost of maintaining this monopoly is that unions cannot discriminate against nonunion members and are legally required to represent all workers equally. Likewise, workers who do not want this representation must accept the union contract and cannot negotiate on their own behalf or represent themselves.
In a 1997 Mackinac Center study, Robert P. Hunter, a former regional director of the Federal Labor Relations Authority, defines the problem with 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.
Almost all union contracts include exclusive representation because of the legal privileges and protections that come along with it. Besides the monopoly bargaining and forced negotiations, private sector unions also receive the ability to limit other unions from organizing the workers into a different union, a practice sometimes referred to as “raiding.”
This monopolistic representation model supposedly gives unions a stronger hand at the bargaining table. Even with this exclusive representation privilege, however, unions are still losing members. Unions must ask themselves if this exclusivity model is really a benefit for today’s work force, or is it more of a crutch, holding unions back from modernizing and gaining new members.
[*] The NLRA applies only to private sector employees. Government employees at the state and local level are governed by various state laws. Federal employees are governed by the Federal Labor Relations Act. This paper primarily deals with unionization in the private sector.