Official time as a form of union security in federal sector labor-management relations

Air Force Law Review, Spring, 2007 by Kenneth Bullock

II. EXCLUSIVE REPRESENTATION AND UNION SECURITY IN AMERICAN LABOR RELATIONS

A. Exclusive Representation

The principle of exclusive representation is one of the most distinctive features of the American collective bargaining system. Under the American rule, after a majority of workers in a bargaining unit choose a union as exclusive bargaining representative, that union has a duty to represent all employees in the bargaining unit, regardless of union membership. (4) Scholars have explained that this system evolved because of the peculiar history of organized labor in this country. Since governments and courts were initially hostile to organized labor, American unions were unable to pursue the "top-down," government-sanctioned form of collective bargaining that prevails in many European nations. Instead, they focused on exerting economic pressure on individual employers and industries, a method that gave rise to the exclusive contract as the primary goal of bargaining. (5)

Exclusive representation requires employees who desire collective bargaining to choose one union for the life of an agreement, minimizing inter-union conflict. When employers are forced by the law or economic circumstances to deal with unions, there are advantages to dealing with a single union. Having a single, unified bargaining partner can promote orderly bargaining, and exclusive unions tend to promote labor peace, since they suppress the disruption and unrest that can result from competition among unions. (6) In the absence of the exclusive representation principle, employees are free to refrain from union membership, if they are also willing to forego the benefits of collective bargaining. However, in the absence of an exclusive representation rule, employers could be forced to bargain with multiple employee groups, ensuring considerable confusion and additional expense in labor-management relations.

There are two obvious weaknesses to a labor-management system that relies on exclusive representation. First, in the absence of a majority vote in favor of a particular union, even a large minority of workers who desire representation will be frustrated, unless the law or economic forces oblige the employer to bargain or consult with a minority union. Second, exclusive representation creates the potential for the "free rider," an employee who enjoys the benefits negotiated and protected by the exclusive bargaining representative without providing financial support. In response to this problem, unions and employers have developed several types of arrangements collectively dubbed "union security."

B. Types of Union Security Arrangements

1. The Closed Shop

The closed shop allows the employer to hire only employees who are members of the union at the time of hiring, and membership in the union remains a condition of employment after hiring. The closed shop was permitted under the original version of the National Labor Relations Act (NLRA), (7) but since each employee's job was to subject to the vagaries of internal union discipline, even if the employee diligently paid dues, abuses occurred. Negative publicity about abuses of the closed shop led to its prohibition in the Taft-Hartley Amendments to the National Labor Relations Act in 1947. (8) The closed shop can no longer be legally enforced in any workplace in the United States.