Could ‘exclusive representation’ be on the chopping blocK?
Labor unions have always had a difficult time with those who don’t want the union’s representation. Those who crossed the picket line or those who were hired during a strike were called “scabs,” and unions sometimes employed violence or threats of violence against those who didn’t follow the union’s commands. One solution to this problem was the system of exclusive representation. Under exclusive representation, which was established by the National Labor Relations Act of 1935, if a majority of workers in a bargaining unit vote for a union, then that union becomes the exclusive representative for all the workers, even those who didn’t vote for it. Thereafter, workers are prohibited from bargaining on their own behalf.
Although exclusive representation is held up by some as a cornerstone of unionism, it is an antiquated practice that has many critics among labor union supporters. Union organizers and labor activists have written that exclusive representation was “designed to fit the immobile facilities and monolithic corporations that were at the heart of Fordist mass production, the system makes little sense in today’s world of fissured workplaces and flexible production.” Moreover, after the Supreme Court’s decision in Janus v. AFSCME, public‐sector unions are no longer allowed to compel payments from nonmembers. Yet they still exclusively represent those nonmembers and owe a “duty of fair representation” even to those who aren’t contributing.
It was thus no surprise that, after Janus, many people thought representation would be next on the Supreme Court’s chopping block, and a new case is asking the Court to extend its ruling in Janus to exclusive representation.