crossposted from unbossed
One of the issues presented by the RAISE Bill is exclusive representation. That is, under the NLRA, the union chosen by the employees by majority vote or recognized by the employer as the majority representative of the workers, is the exclusive representative of all the employees in the bargaining unit.
Although employees are allowed to discuss problems and even reach resolutions of them with the employer, those resolutions cannot trump the terms of the collective bargaining agreement.
E Pluribus Unum - Out of Many, One
The concept exclusive representative is the same as the idea expressed by the United States as one country made up of many states. While states are certainly allowed to pass laws and make differing choices, where the national interest is at stake, only the federal government may speak and act. We learned the lesson that led to this result and choice, the hard way, when the colonies had thrown off English rule and each went its own way with only a loose and weak confederation. When it was on the verge of extinction, the colonies made the choice to replace it with our current system.
So if you are a strict constructionist, you will appreciate the point of unions as exclusive representatives of the workers. They voted as a majority for that representation, and they voted for it to be effective. Not speaking with one voice is a way to be ineffective. Bear in mind that the employees also have a right to vote the union out, and they have the right to run for office and to control the union.
Also bear in mind that the NLRA states very clearly that it was enacted to allow workers to become a collective body that would have the power to be a counter balance to the collective power corporations law gave employers. Corporations get to speak with one voice. So too do unions.
A Supreme Court in the very early years of the NLRA provides an interesting look into employer claims as to what employees want and the role of employers as the friend of their employees. The case is J. I. Case Co. v. Labor Board, 321 U.S. 332 (1944).
First, notice the facts:
The petitioner, J. I. Case Company, at its Rock Island, Illinois, plant, from 1937, offered each employee an individual contract of employment. The contracts were uniform, and for a term of one year. The Company agreed to furnish employment as steadily as conditions permitted, to pay a specified rate, which the Company might redetermine if the job changed, and to maintain certain hospital facilities. The employee agreed to accept the provisions, to serve faithfully and honestly for the term, to comply with factory rules, and that defective work should not be paid for. About 75% of the employees accepted and worked under these agreements.
According to the Board's stipulation and finding, the execution of the contracts was not a condition of employment, nor was the status of individual employees affected by reason of signing or failing to sign the contracts. It is not found or contended that the agreements were coerced, obtained by any unfair labor practice, or that they were not valid under the circumstances in which they were made.
Notice that the contracts were uniform - i.e. not with individual terms. Just signed by individuals. Notice that the contracts gave the appearance but not the reality of rights to the employees. In fact, they basically kept the status quo.
The employer claimed that these contracts were what employees wanted and tried to use them to stand in the way of collective representation. But the employees voted for union representation. That means, although 75% of employees had signed the individual contracts, more than 50% of all the employees voted for union representation. That vote must have included at least 1/3 of the signers, or there would have been no majority vote. That tells us that after experience with the employer’s regime, these workers wanted real power. It also tells us that a majority had voted against the individual contracts.
The facts go on to tell us part of the real point of the contracts that changed no terms. Their real role was to keep the workers from having union representation, even when a majority had voted for it.
While the individual contracts executed August 1, 1941, were in effect, a CIO union petitioned the Board for certification as the exclusive bargaining representative of the production and maintenance employees. On December 17, 1941, a hearing was held at which the Company urged the individual contracts as a bar to representation proceedings. The Board, however, directed an election, which was won by the union. The union was thereupon certified as the exclusive bargaining representative of the employees in question in respect to wages, hours, and other conditions of employment.
The union then asked the Company to bargain. It refused, declaring that it could not deal with the union in any manner affecting rights and obligations under the individual contracts while they remained in effect. It offered to negotiate on matters which did not affect rights under the individual contracts, and said that, upon the expiration of the contracts, it would bargain as to all matters. Twice the Company sent circulars to its employees asserting the validity of the individual contracts and stating the position that it took before the Board in reference to them.
The Supreme Court held that the individual contract terms did not trump collective bargaining and majority representation. The Supreme Court’s reasoning explains some of the concepts of majority representation and the value that those with higher skills or value to the country have for the process. They also get something out of the process, for, as the song goes,
When the union's inspiration through the workers' blood shall run, There can be no power greater anywhere beneath the sun; Yet what force on earth is weaker than the feeble strength of one, But the union makes us strong.
Here is how the Supreme Court puts it:
Individual contracts, no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act looking to collective bargaining, nor to exclude the contracting employee from a duly ascertained bargaining unit; nor may they be used to forestall bargaining or to limit or condition the terms of the collective agreement. "The Board asserts a public right vested in it as a public body, charged in the public interest with the duty of preventing unfair labor practices." National Licorice Co. v. Labor Board, 309 U. S. 350, 309 U. S. 364. Wherever private contracts conflict with its functions, they obviously must yield or the Act would be reduced to a futility.
It is equally clear, since the collective trade agreement is to serve the purpose contemplated by the Act, the individual contract cannot be effective as a waiver of any benefit to which the employee otherwise would be entitled under the trade agreement. The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his preexisting contract of employment.
But it is urged that some employees may lose by the collective agreement, that an individual workman may sometimes have, or be capable of getting, better terms than those obtainable by the group, and that his freedom of contract must be respected on that account. We are not called upon to say that under no circumstances can an individual enforce an agreement more advantageous than a collective agreement, but we find the mere possibility that such agreements might be made no ground for holding generally that individual contracts may survive or surmount collective ones. The practice and philosophy of collective bargaining looks with suspicion on such individual advantages.
Of course, where there is great variation in circumstances of employment or capacity of employees, it is possible for the collective bargain to prescribe only minimum rates or maximum hours or expressly to leave certain areas open to individual bargaining. But, except as so provided, advantages to individuals may prove as disruptive of industrial peace as disadvantages. They are a fruitful way of interfering with organization and choice of representatives; increased compensation, if individually deserved, is often earned at the cost of breaking down some other standard thought to be for the welfare of the group, and always creates the suspicion of being paid at the long range expense of the group as a whole. Such discriminations not infrequently amount to unfair labor practices.
The workman is free, if he values his own bargaining position more than that of the group, to vote against representation, but the majority rules, and if it collectivizes the employment bargain, individual advantages or favors will generally in practice go in as a contribution to the collective result. We cannot except individual contracts generally from the operation of collective ones because some may be more individually advantageous. Individual contracts cannot subtract from collective ones, and whether, under some circumstances, they may add to them in matters covered by the collective bargain we leave to be determined by appropriate forums under the laws of contracts applicable, and to the Labor Board if they constitute unfair labor practices.
It is in the power of unions to negotiate - and workers to agree to - a contract that provides minimum terms, a floor, in other words. You can see those terms in sports, for example. But notice, although they have that model, they have chosen to have union representation. They recognize that the power of collectivity is a rising tide that raises ALL boats.