You can’t live by the golden rule in a crowd that don’t play fair – Nathan C. Heard

Right-to-Work is the most corrupt and hypocritical law in the industrialized world, allowing states to make union membership voluntary, but requiring unions to provide nonmembers with equal representation. Twenty-eight states have currently enacted the toxic legislation, which is enforced on their behalf by the National Labor Relations Board [NLRB]

The sole purpose of this statute is to divide workers and undermine unions, resulting in the lower standard of living suffered by American workers, compared to their European counterparts. Union resources become depleted in participating states by mandated servicing of nonmembers, and the need to invest staff time in ongoing membership drives. The labor movement strives to engage the human potential for unity and altruism. The right-to-work movement targets selfishness and greed, promoting the attitude of why pay for something I can get for free?

Union representation under right-to-work is the only service in the world to which people are entitled without contributing. Imagine a right-to-ride bus law, under which passengers could choose whether to pay the fare, and how that would impact the quality of transportation.

Savvy union reps in RTW states must therefore find ways to circumvent this immoral legislation by any means necessary, and disabuse the notion that there really is a free ride.  I teach every bargaining committee to consider scabs filing a grievance as cannon fodder. We avoid the appearance of impropriety by representing them during the in-house grievance process but there’s no way in hell we’re going to arbitrate their case.

When the time comes, I meet with the human resource director and trade three good nonmember grievances in return for reinstating one union member with a shaky case. It might sound surprising, but while employers obsessively keep track of the union’s membership percentage, they seldom remember an individual’s status (except during an illegal decertification drive or first contract fight.) The HR director is simply grateful to clear his desk of four cases at once. I have the local president call the nonmembers in question and explain that our lawyer felt their case was unwinnable, citing the company’s arguments.

While all of this is illegal, I consider it not only justified, but a moral imperative. The only thanks a union gets for winning a scab’s case in arbitration is the lowlife running around the plant saying the union had to fight for him even though he didn’t pay dues. Other workers (especially new hires) are encouraged to follow his example.

I don’t personally hate nonmembers and my approach isn’t vindictive. But my operative assumption is that the union has no obligation to people attempting to profit from a corrupt law that weakens and divides their coworkers.

I once knew a religious maintenance employee whose pastor preached against unions based on pretzel-logic and biblical interpretation. This fellow was sincere in his misguided beliefs but sufficiently honorable not to request help from the union.  I had no problem with him. On the other hand, someone who thinks the union isn’t worth joining but nonetheless seeks our representation is a hypocrite of the lowest order.

During union orientation meetings someone inevitably asks, “But why should I join when I can get represented for free.”

My response is always, “It’s true I’ll have to represent you. But you know, sometimes we all have a bad day. Maybe we didn’t get enough sleep or had a fight with our lover. So you just might not end up getting me at my best. But I can promise you this: I always fight like hell for union members, no matter what.” The person usually signs a card.

The Time Board Charges Were Filed Against Me

On June 5, 2009 I undertook the miserable seven-hour interstate drive from North Carolina to Atlanta for the annual Workers United Southern Regional conference. Shortly after checking into my room, I encountered North Carolina Director Anthony Coles in the hotel lobby.

“I need you to arbitrate a case for me at Voith,” he told me. Anthony referred to an interesting plant in the eastern part of our state that produced a textile product used in the manufacture of paper where I’d negotiated contracts and done arbitrations during the 1990’s.

“Who’s servicing the local now?” I asked.

“Leslie Cannon. Get up with her while we’re here and she’ll fill you in.” Leslie was a short, squat woman with a masculine face frozen in a perpetual scowl. She understood as much about organizing and labor law as I did about repairing submarines, and compensated with a brash know-it-all arrogance.

The next morning, I approached her in the hallway outside the meeting room where we were both taking a breather from the inevitable onslaught of political hyperbole at the conference. She explained the committee had voted to arbitrate a case on behalf of a worker who felt his job bidding rights had been violated.

“I assume he’s a member,” I said.

“No he isn’t,” replied the blustery business agent. “But the committee voted to arbitrate his case.”

“And what about the guy who got the job?”

“He is a member, but that don’t matter because I think this is a good case.”

“You gotta be fuckin’ kidding me! I ain’t arbitrating a case for a nonmember and trying to take a job away from one of our people. Get with your committee and explain the facts of life to them.”

“Well, that’s against the law, is all I’m gonna say!” she exclaimed and stormed off.

I didn’t blame the local vice president for his disloyalty, but rather the lazy, incompetent business agent who’d made no effort to educate her committee. It was far easier for Leslie to simply ask their opinion and then get someone else to carry it out.

During lunch I met with the local president, who understood my reasoning. I updated Anthony when the conference adjourned. “The person she wants us to represent is a damn scab trying to take a job away from a union member. No way I’m doing this.”

“I don’t blame you,” the director replied. “This sounds like a bunch of bullshit.”

The Union Lawyer’s Meltdown

Two weeks later, I received a call from union attorney Paul Kline. He was a good lawyer, but too much of a choir boy who prioritized being an officer of the court over the realities of fighting for a union in our society.

“The vice president of the Voith shop committee has filed a Board charge against the union, naming you as a respondent, for failing to fulfill your duty of fair representation by discriminating against a nonmember and refusing to arbitrate his grievance.”

Knowing better than to share my explanation with Paul, I played it cool and simply asked what evidence had been provided.

“You told Leslie you weren’t going to take this case because the employee was a nonmember. She told her committee. The vice president was indignant and filed the charge.”

“Well this is all very simple,” I replied. “For the record, I never said any such thing. All this idiot vice president has is hearsay.”

“Leslie told me what you said to her in Atlanta.”

“So…it’s my word against hers. I’ll file an affidavit denying the remarks.”

“I can’t let you do that. I’m an officer of the court and am bound by what I know to be the truth. I won’t lie to the Board.”

“Why not?  Company lawyers do it every day about things that really matter and they’re still getting rich off it.

“Well, I’m not gonna do it! If the Board finds out we lied it will hurt my reputation and yours.”

“And how do you think they’re gonna find proof to justify taking Leslie’s word over mine during a private conversation…call Interpol?

“That doesn’t change the fact that I’m an officer of the court,” the attorney responded with irritation. I’ll send you a copy of my response to the charges, in which I stipulate to your comments but try to argue some legal technicalities. Don’t get your hopes up.”

Few people (including union members) understand what arbitration involves.  Interviewing witnesses, preparing and then arguing the case, followed by writing a lengthy brief—consumes at least forty hours. Thousands of dollars in dues payer’s money is spent on exorbitant arbitrator fees and travel expenses. If the case in question was arbitrated, union members would end up paying the price to represent someone whose only contribution was weakening their bargaining power.

The following week, a Board agent called to take my statement. I split the difference by saying I’d simply shared my personal feelings with Leslie but hadn’t instructed her to act on them.

I put the ill-conceived charge out of my mind and focused on actually representing and fighting for union members. A month later I heard from Paul. “The Board has dismissed the charge,” he said in a dry, matter-of-fact tone. It turned out that one of his legal technicalities had prevailed. (As previously noted, he was a good lawyer.) I asked if he could be more specific.

“No, you don’t need to know that,” he declared with annoyance. “What you need to know is never do anything like this again!”

“Don’t count on it,” I replied and hung up.

If Donald Trump gets elected with a congressional majority, right-to-work will become federal law within a year and the National Labor Relations Act will be dismantled. Union members need to wake up before it’s too late.

Phil Cohen spent 30 years in the field as Special Projects Coordinator for Workers United/SEIU, and specialized in defeating professional union busters.  He’s the author of Fighting Union Busters in a Carolina Carpet Mill and The Jackson Project: War in the American Workplace.