Welcome to the Jungle: Uradnik v. Inter Faculty Organization
By C.M. Lewis
Last week, the Buckeye Institute — Ohio’s Koch-funded free market “think tank” — appealed Uradnik v. Inter Faculty Organization to the United States Supreme Court, potentially beginning the largest offensive on American unions in a century.
Uradnik answers the signal sent by Samuel Alito in the majority opinion in Janus v. AFSCME. In it, Alito referred to exclusive representation as “a significant impingement on associational freedoms that would not be tolerated in other contexts” and argues that “[d]esignating a union as the employees’ exclusive representative substantially restricts the rights of individual employees.” The message was clear: Alito, at least, is open to revisiting the constitutionality of exclusive representation, giving reason to believe that the case (or a similar future case) will be granted cert (as of this writing, Uradnik has not been granted or denied cert).
If Janus v. AFSCME was a round in the fight between labor and capital, Uradnik v. Inter Faculty Organization — if heard by the Court — could be the knockout. Uradnik, a professor at St. Cloud University in Minnesota, is suing her union alleging that the practice of exclusive representation — a union acting as a bargaining agent for a unit of employees — violates her First Amendment rights because she works for a public employer. According to the Buckeye Institute, she shouldn’t be compelled to have union representation by virtue of employment in a union-eligible position.
It sounds abstract, but it represents — even far more than Janus — a looming threat to American unions, not only for its immediate impact on public sector unions, but for the door it could open to future assaults on private sector union rights.
So why is exclusive representation so key?
Exclusive representation has been the lynchpin of American labor law since the Railway Labor Act of 1926. This model, later expanded to all private sector workers through the Wagner Act of 1935, is the bedrock principle of American labor relations. Under exclusive representation, workers typically bargain at the “enterprise” level: at the level of the business/enterprise or even subdivision or branch location of the business, rather than at the industry-wide “sectoral” level (something bargained between industrial unions and employer federations).
This works because the union is certified through election or employer recognition to represent an entire group — or “bargaining unit” — of employees deemed to have a “community of interest.” In a school, this typically takes the form of all certified professionals or all non-certified support staff comprising distinct communities of interest. A sample recognition clause reads like this:
The Pittsburgh Board of Public Education, hereinafter sometimes referred to as the “Board,” pursuant to applicable provisions of the “Pennsylvania Public Employee Relations Act of 1970,” recognizes the Pittsburgh Federation of Teachers, Local 400, American Federation of Teachers, AFL-CIO, hereinafter referred to as the “Federation” or “Union,” as the sole and exclusive bargaining representative for all professional personnel in those employment categories included in the May 23, 1968, and May 20, 1970, collective bargaining elections, as well as any employment categories added per the terms of this or any previous Agreement, all of whom are hereinafter referred to as “teacher” or “teachers.”
The certification and recognition clause defines what’s in the bargaining unit, and what isn’t. Whether or not the member chooses to pay membership dues or instead acts as a so-called “free rider” (deriving the benefits of representation without financially supporting the union), their position remains within the bargaining unit and under the contract.
Exclusive representation gives the union bargaining leverage: the union bargains for all employees and is obligated to protect all employees within a bargaining unit, regardless of membership. No other organization can seek to undercut them: a real threat, given the sometimes internecine history of inter-union conflict (conflicts occasionally conjured by the bosses through the creation of “yellow unions”, unions established by management to preempt the creation of independent worker organizations). In other words, at best, it utilizes the most fundamental premise of labor organization — collective power — and wields it to maximize leverage against the boss.
Since Janus, some unionists have argued to do away with or sharply curtail exclusive representation or the obligations that come with it. In New York, Andrew Cuomo acted swiftly to restrict union obligations to non-members within their bargaining units (it’s no surprise unions, in turn, backed Cuomo over Cynthia Nixon). The logic is simple and predicated on the long history of business unionism: if they’re not going to pay the fee for our service, then why should we spend money to defend them?
But if ending exclusive representation would strengthen unions, why are the billionaires coming for it?
In reality, ending exclusive representation dangerously weakens the model of collective power upon which American unionism is based — and there’s evidence to prove it. As Chris Brooks has argued, the assault on exclusive representation in Tennessee introduced chaotic and internally divisive bargaining and allowed boss-friendly “yellow unions” to flourish at the expense of worker-driven unions. Such “yellow unions” exist throughout the United States ready to capitalize on the end of exclusive representation; in Missouri, the Missouri State Teachers’ Association already boasts more members than Missouri NEA and Missouri AFT, and the Association of Teachers and Professional Employees of Texas remains larger than either Texas AFT or TSTA-NEA (in a state where no exclusive representation exists).
An attack on exclusive representation blows open the door for the boss to wage war on their workers more effectively. Under exclusive representation, employers can’t “direct deal” with an employee, thereby offering them more favorable terms and conditions of employment than their co-workers. If exclusive representation is eliminated, even members-only unionism — unionism where the contract only covers members — will face the very real prospect of the boss giving sweetheart deals to non-members to undermine the union and entice members to leave. Management will be able to pit rival worker organizations against one another, undermining collective worker power.
Make no mistake: the American model of labor relations is far from perfect. Enterprise level bargaining makes it hard to set minimum sectoral work standards through conventional means, and the bureaucratic framework of labor relations often reduces unions to solely bargaining and enforcing contracts. We need to think bigger about bargaining and press the limits of what it can do, drawing from playbooks like bargaining for the common good to make unions a vehicle for broader social change.
But ending exclusive representation isn’t a solution, and without it, things will get a lot worse before they get better. It’s just classic divide and conquer: drive a wedge between workers and hinder their ability to effectively fight the boss.
Janus had a clear answer, albeit a difficult one: unions exist in open shop states, and in spite of challenges, they’re able to survive and even succeed by altering how they do business. But there is no clear precedent in America for strong unions without exclusive representation, and there is no clear framework for what powerful and sustainable unionism looks like without it. The immediate impact is predictable: without strong unions, austerity governance would be free to run roughshod over public sector workers.
Justice Kagan predicted the long impact of Janus in her dissent, observing that “the majority’s road runs long…and at every stop are black-robed rulers overriding citizens’ choices.” Our path ahead looks even more grim with predatory reactionaries like Brett Kavanagh secure on the Court. Janus opened the door for cases like Uradnik, and although labor has managed to so far weather the storm predicted in Janus, we should not assume that we’ll be able to easily forge ahead if Uradnik is heard by the Supreme Court.
But grim as this sounds, it shouldn’t lead us to throw in the towel.
What it does mean is that we need to commit to fighting, should the Court challenge exclusive representation: with a commitment signalling real action and not just rhetoric, and with real action that recognizes the stakes for which we’re fighting. We’ll need to fight by returning to the labor movement’s roots: make the law follow working people, rather than letting the law restrict them. Direct action like the Battle of Wisconsin, although ultimately unsuccessful in stopping Act 10, showed the potential power of organized labor to resist attacks on workers’ rights. The illegal strikes in West Virginia, Oklahoma, and Arizona, demonstrated that defying unjust laws gets results. Every hard-won right now under attack exists because at one point, workers defied unjust laws.
An attack on public sector exclusive representation would be a damaging blow to the labor movement, one from which working Americans would not easily recover. Even if Uradnik ultimately fades away without a hearing before the Court, it’s reasonable to assume that the entrenched conservative majority will likely hear another such case before the composition of the Court changes, and that their decision will not bode well for labor. The Court has almost never been a friend to working people, and the ascendant conservative majority isn’t shy in arbitrarily wielding its power to further an ideological agenda.
What we do with that knowledge, and how we prepare for the eventuality of an attack on exclusive representation, is vitally important. The stakes are too high to ignore it.
C.M. Lewis is union staff in Central Pennsylvania and a member of the Strikewave editorial collective. The views stated are his alone.