I confess to having added my share to the mountain of paper on whether labor unions should be able to act as brokers with authority to compromise the statutory rights of employees they represent in return for other benefits to the group. There would seem, however, to be some areas where the rights in question concern the group as a whole, and the union may be in a better position than the legislature or administrative agency to decide what best promotes the collective welfare of bargaining unit employees.A good example of where unions might usefully play this broker role involves rights under the Fair Labor Standards Act (FLSA). Unlike employers in the public sector, private companies must pay for overtime in currency rather than compensatory time-off (“comp time”). Bills to amend the FLSA to extend comp time provisions to the private sector have foundered on the charge that employers will be able, as a practical matter, to coerce employees to accept comp time by restricting overtime opportunities to employees willing to forgo pay for comp time. This would seem to be a context where unions are likely to be faithful, effective agents for employees in deciding whether their collective welfare would be enhanced by a comp time option, and for policing the employer’s distribution of overtime opportunities to safeguard against any withholding of overtime for the purpose of extracting agreements to work for comp time rather than cash.Another area where unions could play a largely salutary role is in lending integrity to the employer’s internal system for resolving employee statutory claims. Unions have a great deal of experience in administering grievance and arbitration procedures applicable to contract claims, and much of this experience would translate well to statutory claims. Moreover, as inside-the-firm organizations, unions would be able to represent not only terminated employees but also incumbent employees who, in the absence of such representation, may be disinclined to press grievances while employed. Finally, unions as repeat players enjoy a capacity for institutional memory that enables them to alert arbitrators to past practices of employers that should inform the adjudication. Also, as repeat players, unions can monitor arbitrator performance in previous cases and across firms.In these (and likely in other) ways, unions can help mitigate some of the problems that result from the increasingly prevalent resort to so-called “minimum terms” laws to fill out the employment contract. Statutes are written with a necessary generality that may poorly capture the preferences of employees in a particular employment setting; unions can provide an appropriate adjustment for local conditions. Statutes typically look to administrative agencies and private lawyers to enforce the rights they create. But agency resources are severely constrained and private lawyers understandably seek out higherstakes claims leaving the vast majority of modestly compensated claims bereft of any representation. Here, too, unions (because of their expertise, presence in the firm, and motivation to improve the lot of their members) suggest a promising corrective to predictable under-enforcement of statutory norms.
