Members-only Unions: Can They Help Revitalize Workplace Democracy?
On July 10, 2014, when the United Auto Workers (UAW) Local 42 was officially announced, many Americans were introduced for the first time to an old labor practice: members-only unions.1
Local 42 was formed at the Volkswagen plant in Chattanooga, Tennessee, after the UAW was defeated in “one of the most closely watched unionization votes in decades,”2 which many on both sides staked out as a symbol of labor’s prospects in the South. Typically, after facing such an election loss, most union organizers either regroup for another election, or simply walk away. In the case of Local 42, the UAW chose a largely forgotten third option: forming a nonexclusive, members-only union.
Members-only unions, like the name implies, are unions that comprise only a portion of the employees in a workplace, rather than including all workers in the bargaining unit. Workers who do not wish to be members do not have to join, and in turn, the union does not have to provide non-member employees with any services. In fact, by law, a members-only union can only represent those who have joined, as opposed to representing all employees as in a traditional bargaining unit. They are not as powerful as a bargaining unit that results from an election, but in some circumstances they are the easier—and sometimes the only—option.
While the concept is new to many, the practice of members-only unionism preceded passage of the National Labor Relations Act (NLRA) of 1935.3 In his seminal book on the history of members-only unionism, Charles Morris shows that, before the NLRA and its judicial interpretations institutionalized a preference for union elections, a significant percentage of workers bargained through members-only unions.4 For instance, in a November 1933 statistical study of 3,314 companies employing 2,585,740 wage earners, approximately 31.1 percent of companies engaged in bargaining with either a company union or independent union. Morris shows that over 18 percent of this group bargained with unions on a nonexclusive, members-only basis.5 However, following the passage of the NLRA—and the attendant right of union elections and exclusive representation based on majority support—the practice of members-only unionism quickly diminished.
While under the law workers can still form members-only unions, there has been an ongoing debate as to whether the NLRA provides them the right to bargain with their employers on a members-only basis. Morris argues persuasively that the text and history of the NLRA, as well as congressional intent, point strongly to such a bargaining right. However, in 2006, the United Steelworkers tested Morris’s theory in the Dick’s Sporting Goods case, and the General Counsel's Division of Advice issued a memorandum concluding that the Board should not issue a complaint because nonexclusive unions did not have a right to bargain. Therefore, the National Labor Relations Board never had an opportunity to consider the case, and has still not yet fully considered this question.6
The legal issue of employees’ bargaining rights in a members-only setting has stood in limbo since then, with a variety of scholarly articles addressing what legal rights workers in members-only unions may or may not have, and the possible future successes of such unions.7 This question is certain to become more important in the upcoming years. In 2014, Wisconsin became the nation’s twenty-fifth right-to-work state—which means that, in any of these states, if a union is the exclusive representative of all workers in the bargaining unit, any worker can choose not to pay any union dues. And in the upcoming term, the U.S. Supreme Court will hear Friedrichs v. California Teachers Association, which considers whether union security clauses in public sector contracts violate the First Amendment. If the Supreme Court rules the way that many expect, all public-sector workers will be under right-to-work, which could serve to defund public-sector unions. Such developments make organizing and maintaining a union more difficult, and so if voluntary payment of dues becomes the norm, then some unions may choose the voluntary nature of members-only unions.
What is often lost in many of the discussions on workers’ rights is that members-only unions are not a theoretical construct or historical remnant. In fact, beyond UAW Local 42, a variety of public and private-sector locals have operated on a members-only basis for many years, with varying degrees of success. For example, the American Federation of Teachers (AFT) has approximately 120,000 members in members-only unions spread across Texas, Utah, Arizona, Colorado, Louisiana, Mississippi, Alabama, Georgia, North Carolina, Tennessee, West Virginia, Wisconsin, and Virginia.
Most of the existing members-only unions are located in southern states, because legal conditions in those states such as right-to-work laws make it difficult to organize a majority union. Similarly, most members-only unions are public-sector unions, because many states that are inhospitable to labor can easily pass laws that limit collective bargaining rights in the public sector. However, there are members-only unions in the private sector and in other geographic locations as well.
Based on numerous interviews with those involved with members-only unions, this report presents several case studies—one southern private-sector union, one northern private-sector union, and one southern public-sector union—in order to demonstrate the various benefits and hurdles of members-only unionism. It reveals that the problems exclusive-representative unions face are felt far more acutely in the members-only context. Because almost all members-only unions work outside of the confines of a contract, successful unions must be in constant communication with the membership to find out about issues at work and must address them in creative fashions. And because employers will not usually meet with a members-only union, let alone bargain a contract, success in this context is defined differently—comprised mainly of retaining a significant membership and winning discrete battles in the workplace.
Case Studies
Texas Workers Alliance
The Texas Workers Alliance (TWA) is a members-only union in the San Antonio, Texas area, whose membership consists of non-teaching staff, such as custodians, bus drivers, secretaries, and clerks at area public schools.
There are a number of factors in Texas that are conducive to the formation of members-Members-only Unions: Can They Help Revitalize Workplace Democracy? : Blog of the Century: