Many of the objections to right-to-work can be traced to a fundamental misunderstanding of the policy itself. Right-to-work does not prohibit or interfere with collective bargaining, nor does it prevent workers from forming or joining unions. It does not require unions to represent workers who refuse to join the union and pay dues. Right-to-work simply prevents a union from forcing employees to pay it.
A common objection to right-to-work is that it requires unions to represent “free riders,” employees who decline union membership. This argument can be traced back to the adoption of Taft-Hartley, where unions warned that the elimination of union security agreements would require them to represent workers who refused to join the union. These objections are misplaced, for several reasons.
First, the label “free riders” is misleading. Workers who opt of out union membership still have no choice but to accept that a union will speak and negotiate on their behalf. They are forced to accept whatever the union determines is best for them. In addition, these employees likely never voted for the union that represents them — they are simply forced to accept representation from the existing union in their workplace. Thus, these workers could more aptly be deemed “forced riders.”
Second, the requirement that unions represent nonmembers is not part of a right-to-work law. Different laws require unions to act as the exclusive representative for all employees within a bargaining unit.[*] Unions voluntarily accept, and in fact zealously pursue, the duty to speak on behalf of all employees. They choose to act as the voice of nonmembers, which makes their complaints about so-called free riders disingenuous. In fact, when the option of being relieved of the duty of exclusive representation is presented, union official fervently oppose it. In other words, any harms unions endure from representing nonmembers are self-inflicted.
Finally, the expense associated with representing nonmembers is trivial. The costs of representing employees are primarily related to two aspects of union activity: contract negotiation and grievance representation. In contract negotiation, a union negotiates on behalf of a collective bargaining unit, which includes both members and nonmembers. The cost associated with this activity would not change if unions only negotiated on behalf of their members.
Grievance arbitration, when unions legally defend an employee against an alleged contract violation, are an individualized expense that would decrease if unions no longer represented nonmembers. But unions only incur this cost because they are the exclusive bargaining representative of the entire employee group, a status they jealously guard. If nonmembers were not bound by the union contract and could negotiate on their own behalf, unions would not incur these costs.
The solution to the free-rider or forced-rider dilemma is straightforward: amend the NLRA and state laws to eliminate the duty of exclusive representation. This would allow nonmembers to negotiate their own terms and conditions of employment, while freeing unions from the obligation to represent nonpaying members of the bargaining unit.
[*] For the private sector, exclusive representation is required by 29 U.S.C. §159(a). In Michigan, the duty of exclusive representation in the public sector is found in MCL § 423.211.