Guest Post: The Takings Clause and Sweeney v. Pence

Source: Heather Whitney, OnLabor blog, September 4, 2014

In an op-ed back in July, Ben and Catherine Fisk argued that the Supreme Court’s decision in Harris v. Quinn “put[s] unions in a bind” because the union still has a duty of fair representation toward non-paying non-members. In her recent dissent in an important Right to Work case, Sweeney v. Pence, Chief Judge Wood identified a different problem created by Harris: requiring a union to provide non-paying non-members with the same representational services provided dues-paying members is an unconstitutional Taking. …

Related:
Guest Post: On the Takings Clause and Exclusive Representation — A Reply to Heather Whitney
Source: James Sherk, OnLabor blog, September 8, 2014

Heather Whitney’s recent post on the Takings Clause and Right-to-Work misses a crucial point: Federal law does not require unions to act as an exclusive representative. Thus Right-to-Work laws do not force unions to represent nonmembers free of charge….

Guest Post: A Response to James Sherk on the Takings Clause and Exclusive Representation
Source: Heather Whitney, OnLabor blog, September 8, 2014

James’s response to my post misapprehends the current state of the law in at least two ways.
First, federal labor law provides unions the right to be the exclusive representative of a bargaining unit, with reimbursement from non-members for those additional costs, when the union achieves majority status. We can characterize the Right-to-Work law in Sweeney as either (1) gutting the federally-provided right (you can be the exclusive representative but you cannot get reimbursed for it) or (2) conditioning the exercise of that right on a demand that the union pay for it. Under (1) it looks like a preemption issue and under (2) the arrangement strikes me as importantly similar to the one in Koontz v. St. Johns River Water Management Dist….

Guest Post: A Reply on Exclusive Representation and Sweeney v. Pence
Source: Catherine Fisk, OnLabor blog, September 8, 2014

In the debate between Heather and James over whether right-to-work laws require unions and their members to pay for services for nonpayers, Heather is correct. When a union is certified as the exclusive representative of a bargaining unit, it owes a duty of fair representation to all employees in the unit, and cannot choose to represent only its members. Under current law, the only way employees can exercise their statutory right to force the employer to bargain with them is when their union demonstrates that it has majority support. Employers typically require unions to obtain NLRB certification before they will bargain with the union at all, and the law currently allows for certification only of a union that represents the majority. As Heather pointed out in her first post, Ben and I have argued that in right to work states unions should have the option to represent only those who pay dues or fees in grievance arbitration, but that is not currently the law. And, even if the NLRB were persuaded to change to law the to allow unions to handle grievances only for dues-payers, the union would still have to bargain on behalf of all employees, not just its members.

James’ defense of right-to-work laws rests on a fundamental misconception about the nature of labor law….