Members-Only Unionism is Lawful and Can Make Sense

Posted in: Employment Law

The early January 2021 announcement that 300 Google workers had formed a members-only union occasioned a scolding on the Wall Street Journal’s op-ed pages by Ron Holland. Coming from a management labor lawyer (a role I, too, have played on occasion), the stated concern that the labor movement is being insulted is a bit rich. Mr. Holland’s piece makes three essential points: (1) members-only unions are unlawful, (2) such unions are undemocratic, and (3) management does not have to deal with them. Only the third point is accurate; but relevant only if management chooses to ignore such an employee group. Only majority unions can have exclusive-bargaining status; members-only unions can bargain only for their members.

Mr. Holland’s first two points, however, misstate the law. Members-only unions are lawful; they become unlawful only if the employer deals with them as the exclusive bargaining agent, especially if a majority union has been recognized or has achieved majority status through a secret ballot election run by the government. Members-only members can strike and engage in other protected concerted activity. Employers can reach deals with them provided there is no exclusive union on the scene. And they are no less democratic than traditional unions, most of whom have achieved exclusive bargaining status through employee authorization slips signed by the employee in the presence (and under the watchful eye) of union organizers. A similar process would occur for members-only groups.

Why should we care? In some situations, they provide an intermediate stage for employees to pick up organizational skills and provide a group push-back to management. In this sense, they can be laboratories for unionization, which explains why the UAW supports the group at Google. These organizations can also provide a voice mechanism for nonunion employees, which can help promote employee cooperation, dialogue, and ultimately productivity gains. This may explain why Volkswagen supported precisely such a group when a full-fledged union drive failed to win a majority at its Chattanooga, Tennessee, plant, and why Google is tolerating the effort at its facilities. In sum, there is no good public policy case for barring or restricting members-only unionism.

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