by Ann C. Hodges, Professor of Law, University of Richmond
* This post is part of a series examining Harris v. Quinn, for which the high court will hear oral argument on January 21.
The pending case of Harris v. Quinn may turn out to be a case that proves the axiom “Be careful what you wish for.” Harris has the potential to knock out one of the pillars under the carefully balanced labor law system in the United States. If it does so, the long term impact is uncertain.
Under long-established private sector law, largely adopted in many public sector labor law regimes as well, unions are selected by a majority of the employees and then required to represent all employees in the bargaining unit regardless of membership. Except in right to work states, employees thus represented can then be required to pay the cost of representation, although not the cost of any political or other activity engaged in by the union. The Supreme Court found this balanced system passed muster under the First Amendment in both the private sector and the public sector.
The system of exclusive representation serves the interest of labor peace, avoiding competing unions jockeying to outdo one another in obtaining benefits and continual negotiations by employers with a variety of unions each representing their own members. While this system requires some employees to accept and fund representation that they do not prefer, so does our political system in which representatives are also chosen by majority vote.
In our political system, we can campaign for our preferred representatives for the next election and try to influence our existing representatives. So too can employees try to convince a majority of their fellow employees to remove the union or choose a different union through a statutory election process. They can also try to influence the union by lobbying the union’s officials or campaigning for different leadership in government-mandated internal elections. If they choose to be union members they can vote for the union’s officers or run for union office themselves. Government employees can even communicate to their government employer their views in direct opposition to the union’s collective bargaining positions.