Organized Labor’s Democratic Deficit

If unions wish to do politics, their duty of fair representation surely extends to that effort.

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Introduction

The decades-long decline of the American labor movement is neither news nor something conservatives should welcome. Fewer than 6% of workers in the private sector were members of a union in 2024; long gone are the days of the mid-twentieth century when unions represented a third of all workers.¹ The dearth of meaningful representation has not served workers well, a strong majority of whom feel disempowered and voiceless in the workplace.²

Multiple factors have contributed to the decline in union density, including the rise of globalization and the lack of effective enforcement against employers engaging in unlawful union-busting practices. A growing bipartisan push to address these issues has emerged in response.³ However, the renewal of a healthier labor movement in the United States will require addressing another key factor: the fraught relationship between organized labor and politics.

Current and prospective union members have a broad aversion to what they perceive as excessive union involvement in politics. Most workers would prefer that a union refrain from political or issue advocacy and instead focus its time and resources on its raison d’être—channeling their voice in the workplace, negotiating better wages and conditions with their employers, enforcing their collective bargaining agreements, and representing them when disputes arise. Intervention in polarizing political affairs far removed from the workplace, in which workers have no inherently shared interest, alienates many who might otherwise benefit from or be interested in joining a union, undercutting the labor movement’s efforts to organize new workers and reverse the decline of union density in the United States.

Survey research confirms the seriousness of these concerns. Potential union members would “prefer a worker organization that focuses only on workplace issues to one that is also engaged in national political issues” by a three-to-one margin.⁴ Among potential union members who say they would not vote to join one, union political involvement is the top reason. When asked how much of a worker organization’s time and resources should go toward a range of activities, potential union members assign only 3% to politics, vastly preferring core workplace functions like collective bargaining and the provision of training and benefits.

Despite the general distaste for union politicking among workers, understandable and legitimate reasons nevertheless exist for why unions might engage in the political domain. Political participation enables unions to advocate for the interests of current and prospective members, ensure that lawmakers and regulators are aware of and responsive to their concerns, and advocate for a legal environment that is conducive to their organizing and representation activities. It can also serve as a counterbalance to the political influence of corporations in policy areas where the interests of labor and capital are broadly at odds. If and when unions do engage in politics, the relevant question is whether they do so in a manner that reflects their members’ concerns and priorities. Here, too, there is cause for concern.

Labor unions provide near-unanimous formal support for the Democratic Party and its policy positions, even though the political attitudes of members tend to mirror those of the broader American public.⁵ As a practical matter, this discrepancy contributes to the perception that unions are partisan actors and risks repelling potential members. More importantly, at the level of principle, disparity between unions’ political intervention and the preferences of their members evinces a democratic deficit in organized labor. This deficiency, compounded if unions make political decisions without first consulting their members, undermines core principles of unionism in the United States: accountability and responsiveness.

Fairly representing all the workers of a bargaining unit is one of a union’s primary obligations, especially in the U.S. system of labor-management relations, where federal labor law grants it the power of exclusive representation of all relevant workers, including those who might oppose it. Failing to represent them in matters before their employers, such as collective bargaining and contract administration, constitutes a dereliction of duty, which is enforceable under the law. The obligation should extend to when unions choose to leverage their power of exclusive representation in pursuit of political objectives.

Federal policymakers should ensure that unions are responsive and accountable to their members regarding political matters. This paper identifies potential pathways towards this end. First, the government should robustly enforce the duty of fair representation, a legal obligation established by federal labor law that prohibits unions, given their legally enforced exclusivity, from elevating the interests of some members over others in a manner that is arbitrary, discriminatory, or in bad faith. That duty was established in the context of rampant racial discrimination within unions that infected the bargaining process, but in an era when the labor movement’s anti-democratic abuses arise in its political activism, the same principles should apply.

Second, the government should expand workers’ “Beck rights,” under which union-represented workers can decline union membership and then opt out of that portion of their dues payments that would fund a union’s political or ideological activities. Specifically, workers should be permitted to exercise Beck rights without first resigning from their union membership and losing the ability to participate in internal union affairs like authorizing a strike or ratifying (or rejecting) a collective bargaining agreement. Demanding acquiescence to financial support of a given political stance as a precondition for exercising collective voice at work conflates two radically different roles that unions play, and risks weakening both. Disaggregating them will strengthen the associational rights of workers and the labor movement as a whole.

Exclusive Representation and the Duty of Fair Representation

To understand how and why a union’s obligation to represent its members fairly applies to its political activities, it is useful to examine why the obligation developed and how it is applied today.

American labor law regulates the relationships between employees and employers by establishing the legal framework governing collective action by employees regarding wages, hours, and other terms and conditions of employment. Congress has passed two laws that serve as the foundation of private-sector labor-management relations. In 1926, it enacted the Railway Labor Act (RLA) to establish procedures for resolving labor disputes in the railway (and later airline) industries, thereby limiting disruptions in interstate commerce caused by strikes or other labor actions.⁶ In 1935, it enacted the National Labor Relations Act (NLRA) to address disparities in bargaining power between employers and employees, resolve workplace disputes, and facilitate industrial peace.⁷

Both laws empower employees to organize, join a union, and collectively bargain with their employer. If a majority of employees vote to join a union, the government certifies it as the exclusive bargaining representative for all employees in the bargaining unit.⁸

This exclusivity means the union alone has the legal authority to negotiate wages and other terms and conditions of employment for the employees, regardless of whether they voted for the union or whether they are members of it. The premise of the arrangement is that, by empowering the union to speak collectively for all employees in the unit, the employees can advance their goals more effectively than they could by acting independently. To facilitate the arrangement, all workers must pay dues (or agency fees) to the union, and employers must collect these payments directly from paychecks on behalf of the union, subject to certain limitations. Employers are legally obligated to negotiate exclusively with the certified union and cannot bargain with individual employees, reinforcing the union as the sole bargaining agent.⁹

The principle of exclusive representation emerged from the instability of early twentieth-century industrial relations, an era characterized by frequent strikes, workplace disruptions, and intense conflict that occasionally escalated into violence. At the time, multiple unions often competed to represent the same employees in a single workplace, each negotiating independently with employers. This fragmentation created inconsistencies in the terms of employment for similarly situated employees, allowing employers to exploit divisions by selectively negotiating with preferred unions. As employee solidarity weakened, conflicts intensified, diminishing collective bargaining power and destabilizing workplaces. To address these issues, Congress incorporated the principle of exclusive representation into the RLA and NLRA. Granting exclusivity ensured employers negotiated with a single representative: workers could no longer be played off against each other and achieved greater power as a result; employers got a more orderly bargaining process and the ability to standardize employment conditions.

From this principle of exclusive representation flows an important legal doctrine called the duty of fair representation (DFR). Although Congress did not explicitly delineate the DFR in the RLA or NLRA, the Supreme Court identified this duty as fundamental to the unions’ status as exclusive representatives. The Court reasoned that if unions have legally granted exclusivity to negotiate wages and other terms and conditions of employment for all employees—members and nonmembers alike—that privilege must come with the responsibility to represent all employees fairly. The case law, briefly summarized below, has clarified and refined the doctrine governing unions’ representational obligations.

The DFR emerged in the context of explicit discrimination. In Steele v. Louisville & Nashville Railroad (1944), the Supreme Court considered whether a union, acting as the exclusive representative under the RLA, was required to represent all employees within the bargaining unit.¹⁰ Black firefighters employed by the railroad were represented by the Brotherhood of Locomotive Firemen and Enginemen, but were excluded from union membership. When the union negotiated a collective bargaining agreement that disadvantaged black firefighters by restricting their eligibility for certain jobs and promotions, they challenged the discriminatory treatment, arguing it violated the union’s obligations under the RLA. Recognizing that unions hold significant power as exclusive representatives, the Court unanimously ruled that unions must “exercise fairly the power conferred upon it in behalf of all those for whom it acts.”¹¹ In so doing, Steele established a core legal principle in American labor law: exclusive bargaining power granted to unions obligates them to represent workers “fairly, impartially, and in good faith.”¹² Notably, the obligation extended to everyone for whom the union represents, not just its members; unions are “required to consider requests of nonunion members…and expressions of their views…and to give to them notice of and opportunity for hearing upon its proposed action.”¹³

Following Steele, the Supreme Court issued a series of decisions that expanded the scope of the DFR’s coverage but tightened the standard for showing a violation. In Ford Motor Co. v. Huffman (1953), the Court affirmed the duty’s application to unions certified under the NLRA as well.¹⁴ The Huffman decision also underscored the substantial discretion unions hold when negotiating contracts, reasoning that collective bargaining inevitably involves tradeoffs among competing interests and that unions must retain the “discretion to make such concessions and accept such advantages as, in the light of all relevant considerations, they believe will best serve the interests of the parties represented.”¹⁵A decade later, in Humphrey v. Moore (1964), the Court explicitly clarified that the duty applies not only to collective bargaining but also to grievance processing and internal dispute resolution, reinforcing the unions’ obligation in all of their representational functions.¹⁶ In Air Line Pilots Association v. O’Neill (1991), the Court defined “arbitrary” conduct as behavior that is “so far outside the range of reasonableness as to be irrational,” further underscoring its deference to unions’ strategic decision-making, so long as it is not irrational or discriminatory.¹⁷

Today, if an employee believes their union has violated the DFR, the avenue for redress depends on the circumstances of the claim. For disputes arising solely from the union’s conduct—such as allegations that the union failed to represent employees in the bargaining unit fairly—the employee can file a claim against the union with the National Labor Relations Board (NLRB or Board) or a complaint against the union in federal court.¹⁸ For disputes arising from a claim that an employer violated the collective bargaining agreement and then the union failed to handle the subsequent grievance properly—such as when the union refuses to pursue an employee’s grievance or administers grievance procedures unfairly—an employee must file a so-called “hybrid §301/DFR” complaint in federal court.¹⁹ This hybrid complaint has two intertwined elements: first, it claims that the employer violated the collective bargaining agreement, prompting a legitimate grievance; second, it claims that the union breached its DFR through improper grievance handling. In such cases, the employee must prove both elements to prevail.

Union Dues, Agency Fees, and Beck Rights

After employees certify a union, they typically begin paying for representation only after the union and the employer negotiate an initial collective bargaining agreement and the members ratify it. Thereafter, the employer deducts union dues directly from employee paychecks and transmits the funds to the union. Employees who choose not to be union members must often still pay agency fees, commonly known as “fair share” fees, for the union’s representational services in the workplace. Employees at unionized companies in the 27 states with “right-to-work laws,” enabled by Congress in 1947 under the Labor Management Relations Act (commonly known as the Taft–Hartley Act), can decline union membership and opt out of financial support altogether, though the union remains their exclusive representative and they are bound by any collectively bargained agreements.²⁰ These laws prohibit agreements that require union membership, the payment of union dues, or agency fees as a condition of employment.

Union dues and agency fees fund unions’ workplace representation. However, unions may also use these funds for political and ideological activities, including lobbying, voter education, public advocacy campaigns, and donations to organizations that advance the union’s political agenda. By contrast, unions cannot use these funds for direct financial contributions to political candidates, political parties, or federal election campaigns. Instead, unions must make direct political contributions exclusively through a political action committee (PAC), which operates separately from the union itself. Union PACs operate with voluntary donations from union members. Thus, while unions can only use voluntary contributions for explicitly electoral politics, they can indirectly support a wide range of political and ideological activities with union dues and agency fees.

Employees who are represented by a union but are not members of it can object to funding activities unrelated to workplace representation by exercising their Beck rights, established in Communications Workers of America v. Beck (1988).²¹ The case arose when Harry Beck and other employees challenged the Communications Workers of America practice of using agency fees collected from nonmembers for political activities and advocacy unrelated to workplace representation. Beck argued that this practice violated their rights under the NLRA. The Court agreed and reasoned that the statute implicitly limits mandatory fees to expenses directly tied to workplace representation because it only explicitly authorizes unions to represent employees concerning wages, hours, and other terms and conditions of employment. Since the NLRA does not expressly reference financing political or ideological efforts, the authority granted to unions under the NLRA does not extend to compelling nonmembers to fund activities outside their core representational functions.

Only employees who are not union members can exercise Beck rights; thus, current members who wish to exercise them must resign their membership. Employees must then formally notify their union, typically through a written statement, that they object to making payments for activities unrelated to the union’s workplace representation. Once a worker submits this objection, the union must provide detailed financial information differentiating between expenses classified as “chargeable,” which unions can lawfully assess to objecting nonmembers, and “nonchargeable,” which they cannot. Chargeable expenses are those directly related to the union’s core representational functions, including negotiating collective bargaining agreements, administering grievance procedures, and processing arbitration. Nonchargeable expenses are expenditures unrelated to workplace representation, such as political advocacy, contributions to political candidates or parties, lobbying, public relations campaigns not directly tied to representation, and ideological activities. Employees who exercise their Beck rights, referred to as “Beck objectors,” have their agency fees reduced by the amount of the nonchargeable expenses.²²

How Unions Spend Money

Organized Labor’s Democratic Deficit and Policy Recommendations

The core function of a labor union is to organize workers, provide a voice for their concerns in the workplace, negotiate better wages and conditions secured through enforceable collective bargaining agreements, and process grievances if they arise. However, as union density has eroded significantly from its mid-twentieth century peak, the labor movement has increasingly turned to the political arena, with many union leaders arguably conceiving of themselves as political activists first and workplace organizers and representatives second. They intervene eagerly in a myriad of political issues, including polarizing ones far removed from bread-and-butter concerns that affect workers in the workplace. Unions can be found declaring that “reproductive rights are worker rights,”²³ advocating for a “just transition” to combat the “climate crisis,”²⁴ and calling for a “ceasefire in Gaza” and for “the federal government to stop funding the genocide.”²⁵ In its failed effort to organize an Amazon warehouse in Bessemer, Alabama, the organizing union created signs showing failed Georgia gubernatorial candidate Stacey Abrams dressed as Rosie the Riveter, proclaiming “We Can Do It” from behind a COVID-19 mask.²⁶

This cannot be called fair representation of current and prospective union members who are as divided as the rest of the American public on just about any political issue. Survey research finds that an overwhelming majority of workers would prefer their representatives focus only on workplace issues.²⁷ When asked which political issues a union should engage on, not a single one of 20 different issues recently targeted by the nation’s largest unions gets chosen by even half of workers. Potential members who say they would vote against a union cite union political involvement as the top reason.²⁸

Of course, that is just public opinion polling. If unions were listening closely to the workers they represent, and those workers wanted the kind of political activism on display, then the polling would be beside the point. Unfortunately, there is scant evidence that unions even ask members about their views on an issue before taking a political position. When the Teamsters surveyed members about their views on the 2024 presidential election, the result was 59.6% support for Donald Trump and only 34% support for Kamala Harris.²⁹ Ultimately, the Teamsters withheld its endorsement and remained neutral. Others in the labor movement decried this as insufficiently loyal to the Democratic Party, suggesting that something is indeed amiss.

If a union believes that advocating effectively for its workers requires not only workplace representation, but also political activism, then its obligation to fairly represent those workers should extend to that political representation as well.

Enforce the Duty of Fair Representation

One way to make unions responsive and accountable to the employees they represent in political matters would be to enforce the DFR consistently across union activities. Specifically, unions should bear an obligation to make a concerted effort to consult the employees for whom they have the exclusive right of representation before making political decisions. At its heart, the DFR imposes an obligation on a union to advance the interests of the employees who are compelled by law to be represented by the union and who must also pay the union for such representational services.

In an era when unions primarily served as representatives in the workplace, the government first applied the DFR in the context of workplace representation. However, the reality of the twenty-first century labor movement is that many unions have recast their role as political actors first and workplace representatives second, to the detriment of both their organizing efforts and their ability to represent workers effectively. This development frustrates the purpose of the NLRA, the interests of workers, and the future viability of organized labor. If the unions in fact have a duty to represent their employees fairly, they should not be able to leverage their power of exclusive representation for political activism without making a meaningful effort to discern the will of those they purport to represent in the activity.

In practice, recognition of the duty in this context would require good-faith consultation and an effort to discern employee interest in a subject and views on it. A union expending resources without such consultation, and claiming to speak for people whose views might be the opposite, would be acting arbitrarily, discriminatorily, or in bad faith. Importantly, consistent with the discretion and latitude provided by the courts to unions in the case law, the DFR does not preclude a union from applying its own political judgment to the feedback it hears, even if in some cases that leads to choices not entirely popular. What matters is that union leadership should be obligated to engage their rank-and-file in a non-perfunctory manner beforehand. At the extreme, a union directly and knowingly defying the views of employees could be construed as acting in bad faith.

There are several pathways for the NLRB and Congress to enforce the DFR properly.

NLRB: Adjudication. The Board can adjudicate individual unfair labor practice charges with the intention of extending DFR to political activities, including those proactively initiated by the General Counsel, who possesses the authority under the NLRA to bring complaints even in the absence of a private party’s charge. Through these adjudications, the Board can establish a body of case law that explicitly applies the DFR to unions’ political activities, clarifying expectations and setting clear, enforceable standards to guide union conduct.

NLRB: Guidance. The NLRA empowers the Board General Counsel and its Division of Advice to issue interpretative guidance and policy memoranda, clarifying enforcement standards, establishing consistent legal interpretations, and providing direction to Regional Offices to ensure uniform and predictable application of federal labor law.³⁰The Board could therefore issue interpretative guidance or a policy memo clarifying that a union’s failure to consult its members before endorsing political candidates, advocating for particular policies, or injecting itself into polarizing debates constitutes arbitrary, discriminatory, or bad-faith conduct under the DFR. This guidance would set clear expectations and provide a framework for adjudicating charges.

NLRB: Rulemaking. The Board also has the authority to initiate formal rulemaking under the Administrative Procedure Act (APA).³¹ By pursuing the rulemaking process under the APA—which entails issuing a proposed rule, soliciting and considering public comments, and then issuing a final rule—the Board can clarify unions’ statutory obligations under the DFR, explicitly define what constitutes “meaningful” consultation with regards to political representation, specify acceptable engagement methods such as polling or member referenda, and establish enforceable, transparent criteria for evaluating whether unions have fulfilled their representational duties under the DFR. Formal rulemaking would result in regulations that carry the force and effect of law, and would receive greater judicial deference and provide stronger legal certainty than interpretative guidance, a policy memo, or adjudications from the Board.

Congress: Statutory Amendment. While the DFR currently relies upon judicial precedent, Congress could explicitly add the DFR to the labor statutes, thereby granting explicit statutory authority and providing greater legal clarity, which would reduce ambiguity and potentially enhance enforceability. Congress could do so by amending Sections 8(b) of the NLRA and Section 2, Fourth of the RLA to codify the DFR and clarify the range of union activities to which it applies. Unions would be legally required to meaningfully consult their members through polling or other direct engagement before endorsing candidates or engaging in political advocacy. With this statutory clarity established, the Board could issue formal rules or guidance to define clear, enforceable standards for consultation.

Critics might argue that extending the DFR to include unions’ political activities stretches the doctrine beyond the parameters constructed by the courts, which has historically focused on workplace representation. But it is the unions, not the doctrine, doing the stretching. The Supreme Court has consistently held that unions, due to the statutory privilege conferred upon them as exclusive representatives, have a fundamental duty to exercise their power in a manner that fairly represents all workers and is free from arbitrary or discriminatory conduct. When unions primarily engaged in workplace representation, that was the context in which the DFR was litigated. If unions choose to use their exclusive representation to engage in political activity, they should find the DFR waiting there as well. If they proceed without adequately consulting their membership, unions arbitrarily privilege certain political viewpoints over others, discriminate against members who hold differing opinions, and act contrary to the principles of fairness upon which the DFR rests. Applying the duty to the full range of activities that a union deems vital to its representative function ensures that unions remain responsive and accountable to all employees they represent.

Expand Beck Rights

Under current law, workers represented by unions who object to funding activities unrelated to direct workplace representation face a dilemma: they must either resign their union membership or continue to fund political activism of which they disapprove. If they resign, they forfeit important participatory rights such as ratifying (or rejecting) collective bargaining agreements or voting to authorize a strike. This conflation of two distinct functions of unions—their role as a mechanism for collective voice and power in the workplace, and their role as advocates for political and policy change—does an injustice to these workers. It also does a disservice to both of these functions by either weakening union membership (if workers resign to exercise their Beck rights) or decreasing union legitimacy with its members and the public (by forcing members to abide by political activity with which they disagree).

To correct this imbalance, Congress should codify and expand Beck rights to ensure union members can object to funding political and ideological activities without resigning their union membership or losing representation benefits. In addition, rather than the current “opt-out” model, which places the burden on employees to proactively exercise their rights, Congress should establish an “opt-in” standard, requiring unions to secure affirmative consent from each employee before allocating any portion of dues for political activities and advocacy unrelated to workplace representation. Congress can effectuate this policy by amending Section 8(b) of the NLRA and explicitly stating that collecting dues or fees from employees for political, ideological, or other non-representational activities without obtaining affirmative consent from each employee constitutes an unfair labor practice. To recognize and reinforce the desirability of unions’ core function, Congress should also explicitly classify expenses related to organizing as “chargeable” in recognition that organizing new workers directly strengthens bargaining power, benefiting all employees in the represented bargaining unit.

Critics might argue that these reforms unfairly disadvantage unions vis-à-vis corporations, whose shareholders, unlike union-represented employees, do not currently enjoy protections comparable to those afforded by Beck to opt out of financial support and political and ideological activities. This criticism is valid, and policymakers should consider remedying this disparate treatment as part of a broader effort to mitigate the deleterious effects on our democracy that the influx of union and corporate money into the political system has had since the Supreme Court’s decision in Citizens United v. FEC (2010).³²The criticism is not a reason, though, to continue forcing workers to fund political activism against their will.

A close reader might recognize that the proposed expansion of Beck rights—permitting employees to remain union members while shifting political and ideological spending from an opt-out model to an opt-in—effectively transforms all union political spending into something akin to the PAC model. This raises an important question: Why wouldn’t unions focus exclusively on raising money for their PACs instead? After all, PAC funding is voluntary, explicitly designated for politics, and avoids concerns about member consent and fairness. The answer lies in the strategic value unions derive from portraying their political advocacy as representing the interests of all the employees they exclusively represent, rather than merely a self-selected subgroup. Indeed, if unions perceive benefits from framing their political actions as representative of all of the workers in the bargaining unit, including non-PAC contributors, this positioning should inherently carry a duty of fair representation.