Michigan case zeroes in on the legal realities of unionization

President Biden consistently has stated a desire to be “the most pro-union president” ever, but recent events have shown that being pro-union doesn’t always translate to being pro-worker. Throughout the country, unions are enforcing policies that benefit them, but are not necessarily in the best interest of their members.

The Michigan Supreme Court is considering whether to hear the case of Technical, Professional, and Officeworkers Association of Michigan v Renner, which addresses an issue of national importance. The case focuses on a county employee, Daniel Lee Renner, who sought representation from the union, TPOAM, in a dispute with his employer. The union refused to represent him unless he paid an up-front fee of $1,290, with additional fees likely to occur as the union prosecuted his case.

The union’s reasoning? Renner had resigned his membership the year prior.

At first glance, the union’s position seems reasonable — why should a union be required to represent non-members for free? But the legal realities of unionization make this position legally indefensible and objectively unfair.

The disconnect lies in a union’s duty to act as the “exclusive representative” of all employees within a bargaining unit. When a union bargains with an employer, it negotiates the right to be the sole negotiating authority. Individual employees are not allowed to negotiate their own terms and conditions of employment. The union speaks for them, even if employees have made clear that they do not want to associate with the union.

Non-members such as Renner are left with little choice about the terms and conditions of their employment, which are established by the collective bargaining agreement negotiated by the union. Even if they want to, non-members typically can’t challenge discipline on their own.

This regime exists because unions negotiate for the right to exclusively represent employees. They voluntarily accept, and vigorously pursue, the legal obligation to represent all employees within a bargaining unit, including non-members.

But Renner found out the limits of this representation after he complained about another worker’s smoking, claiming it had an effect on his health. The county investigated, determined Renner’s claims about the other worker were false, and disciplined him. In an effort to challenge the discipline, he contacted the union for representation — because he was informed he could not act on his own behalf. The union refused to represent him, despite being the only entity allowed to do so.

The situation would be different if a union did not set the employment conditions of non-members. If employees were free to act on their own behalf, it would be reasonable for a union to charge fees to non-members seeking union representation. But that’s not the case, and many unions have strongly resisted embracing that position.

This case squarely demonstrates that division. While one union, TPOAM, has advocated for the right to charge non-members fees, the Michigan affiliates of the National Education Association, the American Federation of Teachers, the AFL-CIO, and the American Federation of State, County, and Municipal Employees (AFSCME) joined in a brief opposing that position. These unions call a “fee for service” policy “antithetical to the fundamental mission of purpose of the Amici unions.”

These unions’ national representatives have even signed a policy statement opposing attempts to modify their duty to fairly represent all employees — members and non-members alike.

The most reasonable solution is fairly straightforward — relieve unions of their duty to represent non-members, and relieve non-members of the constraints of being bound by the contract the union negotiates on behalf of its members. Under this regime, workers would be free to negotiate their own terms and conditions of employment, and they could represent themselves when challenging discipline levied by their employer.

At the same time, unions would be required to represent only paying members, thereby avoiding the issue of requiring unions to expend resources on behalf of an employee who does not financially support them. This approach also provides indirect benefits to employees in the form of increased competition. Unions would be forced to demonstrate value to employees to earn their dues, and employees dissatisfied with union representation could leave and try to get better results on their own.

This approach would allow workers to make a choice about whether the terms negotiated by the union are better than those they could negotiate on their own. If President Biden is interested in being not just pro-union but also pro-worker, he should embrace this reform.

Steve Delie is the director of labor policy and Workers for Opportunity at the Mackinac Center for Public Policy in Midland, Mich.