Union bosses' latest win
may be nothing of the kind

by Steven Miller

t was hailed as a victory for Big Labor in the Silver State. And in the short run, the May 4 decision by the Nevada Supreme Court clearly was. At another level, however, the unanimous ruling may have unleashed a mortal threat to the power-base of Nevada's government unions.

First, the court—sitting as a three-judge panel—recognized the right of employees of state and local governments to forgo union membership. Given Nevada's right-to-work law, this was not that unexpected.

The court's next step, however, was. It explicitly recognized that nonunion employees of state and local governments have a right to represent themselves in all conditions of their employment. Further, the court grounded its interpretation in a specific Nevada statute.

"NRS 288.140(2) ... explicitly authorizes a nonunion member to act on his own behalf 'with respect to any condition of his employment ...'," wrote justices Bob Rose, Bill Maupin and Miriam Shearing. "This statute provides an individual with a right to forgo union representation."

The justices went on to say that "implicit in the plain language of this provision" is the requirement that employees who have opted not to be represented by the local union would themselves bear the costs, should they want to pursue a grievance against management.

Choose Your Own Rep

The court therefore said that nonunion employees may hire or designate their own agents to represent them with local Nevada government entities.

"Indeed, an individual may opt to hire his or her own counsel, and thereby forgo giving the union any money at all without fear of losing his or her job," wrote the panel.

This view differs substantially from the accepted interpretation in other states of laws like NRS 288.140(2), says Stefan Gleason, of the National Right to Work Legal Defense Foundation (NRTWLDF) in Washington, D.C.

"Many other states have similar statutes on the books, but those statutes have been interpreted to be meaningless," Gleason told Nevada Journal. "In fact, the National Labor Relations Act, the nation's premier labor law, has similar language, but the U.S. Supreme Court ruled that the statute provided no real right of self-representation."

The Nevada panel, however, noted that it did not have to follow those national precedents since state and local governments, when bargaining with their own employees, "do not fall within the purview of the National Labor Relations Act."

The case before the Nevada Supreme Court, Cone v. Nevada Service Employees Union, originated in October 1994, when about 100 employees of the University Medical Center of Southern Nevada resigned from Local 1107 of the Service Employees International Union. The union responded by announcing a new policy: a heavy fee schedule it would charge nonunion members for representation in grievance matters.

Although the union said that nonunion employees also would have the option of selecting their own outside representatives in grievance matters, the employees who had resigned said that in reality the union's new scheme was blatantly unfair.

Rejecting the Federal Precedents

The "policy" couldn't be divorced from its context, the new nonunion employees argued—a legal context that barred them from negotiating their own contracts and required them to accept employment terms as negotiated by the union. Thus the union policy required any nonunion employee who wanted to pursue a grievance to be personally exposed to thousands of dollars in legal costs—but even then to only seek enforcement of the contract negotiated by the union they had rejected.

It is those and other reasons, argued Las Vegas attorney Frank Cremen and the NRTWLDF in a joint brief to the Nevada Supreme Court, that have led to long-standing state and federal precedents. And under those precedents, all unions that win government recognition as exclusive representatives of bargaining units must remain exclusive representatives even when nonunion employees are the ones with the grievance.

To do otherwise, said Cremen and the NRTWLDF, would allow unions to unfairly abuse workers who do resist joining or want to resign. Cremen, et al, quoted the National Labor Relations Board on that point:

It is noted that it would take over four years' worth of dues to pay for the cost of one single grievance taken to arbitration. This would necessarily have a coercive effect on nonmembers in their exercise of their right to join or refrain from joining a union.

That and other national precedents were nevertheless explicitly rejected by the three Nevada judges, who wrote:

Although appellants cite much precedent, including NLRB opinions, in support of their position, we reject this authority ...[and] ... note that this court is not bound by an NLRB decision...

Paradoxically in this case, it may have been attorneys for the nonunion employees who, in retrospect, turn out to have been collective bargaining's best friends. That is because Nevada law (NRS 288.027) defines a bargaining agent as "an employee organization recognized by the local government employer as the exclusive representative of all local government employees in the bargaining unit for purposes of collective bargaining" [emphasis added].

To allow this definition to be ruptured, argued the attorneys for the employees, "would undermine the whole concept of collective bargaining." They noted that Clark County's Employee-Management Relations Board—though sanctioning the union's "policy"—had itself called the policy "partial non-exclusive representation."

The 'Partial Non-Zero' Zero

Clearly "partial non-exclusive representation" and "exclusive representation" are contradictions in terms. That is no doubt why the Nevada high court panel did not itself adopt and use the county board's term. Nevertheless it is "exclusive representation" that is required by Nevada law for an employee organization to be recognized by local government as a bargaining agent for its employees.

Thus, if the Nevada Supreme Court does not quickly and—despite the embarrassment—reverse itself, it will have to continue holding that "exclusive representation" status for one union is somehow consistent with auxiliary or alternative representation status for other employee representatives.

Perhaps the way out for the court would be to hold that "exclusive representation" properly pertains to the relationship between a union and its membership, rather than to the relationship between a union and all the employees of a local government entity.

The second half of NRS 288.140(2) complicates the situation, requiring that "any action taken on a request [by a nonunion employee] or in adjustment of a grievance shall be consistent with the terms of an applicable negotiated agreement, if any." But this—under the Nevada Supreme Court's unique new slant on labor law—might only require that the new agreements be even more generous to workers who have opted out of the local union and retained their own representatives. For these workers, therefore, the established union-negotiated contract would only serve as a foundation or starting point.

The Nevada Supreme Court appears to have opened a new day in Nevada labor law. The court has sanctioned a new paradigm, in which local government entities would have to negotiate for employee services with multiple employee representatives—not only the established union, but also lawyers, professional associations, or even other unions.

Perhaps this will be restricted to state-government workplaces, where unions like Local 1107 have negotiated, or announced, arrangements where they no longer represent all employees. Or—since the court explicitly recognized that individuals have a legal right, established in Nevada law, to represent themselves in all conditions of employment—it will be the rule in every state and local government workplace.

Whichever it is, the three-judge panel has offered a broad and striking new interpretation of what it means when a union has been recognized by a local government entity as "exclusive representative" for all local government employees. "Collective bargaining" is no longer quite so collective, nor so coercive, nor so disrespectful of Nevada employee choice.

From the standpoint of employee rights and human freedom, this is an ideal development.

From the standpoint of union monopoly power, however, it most certainly is not.  NJ

Steven Miller is the managing editor of Nevada Journal.

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