Legal aspects of exclusive representation: Ruminations on the private-public sector analogy

From the perspective of a management labor lawyer, this article argues that any legitimate theory of employment rights must be founded on the premise that employment is a voluntary relationship governed by mutual consent. In contrast, the erosion of the doctrine of at-will employment and the substitution of its legal antithesis, the tort of wrongful discharge, depend on a conception of employment rights as something the employee possesses at the employer’s expense, that is, without the employer’s consent. The theme of this article is that an employment right does not exist apart from contract. The government cannot violate an employment right unless it prevents a willing employee and a willing employer from making a contract concerning a proper subject on terms satisfactory to both. In public sector employment, the state is one of the parties to the employment contract. In most cases, a public employer cannot be “willing” if the same sovereign or polity has enacted conditions on public employment, that is, has placed limitations on itself. This article analyzes the legal aspects of exclusive union representation and related union security arrangements within this conceptual framework. Member, State Bar of California. Associate, Latham & Watkins, Los Angeles and San Diego. I wish to thank my colleague, Mark W. Smith, for his helpful suggestions and comments during the preparation of this paper. The views expressed here are solely those of the author.