Whether or Not They Wield Forced-Dues Privileges, Union Bosses Benefit From the ‘Comprehensive Authority’ Over Employees Bestowed Upon Them by Federal and State Laws Authorizing ‘Exclusive Representation’

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In the private-sector economy, two federal laws, the National Labor Relations Act (NLRA) and the Railway Labor Act (RLA), largely determine what is and isn’t permitted regarding labor-management relations for workplaces located in all U.S. states and territories as well as in the District of Columbia.

Federal labor law lays out certain conditions under which it is illegal, in the words of NLRA Sections 8(a)5 and 9(a), for an employer to “refuse to bargain collectively with” union officials.

Of course, the classical liberal vision of human nature on which America was founded is simply incompatible with the notion that any private person or group has a “right” to bargain with (or for) an unwilling partner.

‘Those Who Defend Compulsory Bargaining Must Logically Reject the Natural Law Constraint’

As labor economist Charles Baird, a professor emeritus at California State University, East Bay, has lucidly explained, the “natural right to participate in voluntary exchange with others does not imply that you can bargain with whomever you wish.”  It means, rather, “that you may bargain with any willing other party you may wish”:

If I have a right to bargain with B in the sense that B must bargain with me whether he wants to or not, then B does not have the right to bargain with whom he wishes.  He does not choose to bargain with me, and when he is coerced to do so, his alleged right to choose his bargaining mate is denied.  We do not have a right to choose a bargaining mate.  We do have a right only to choose a willing bargaining mate.  Voluntary exchange is based on mutual consent.

Baird was surely correct in concluding, as he did:  “Those who defend compulsory bargaining must reject the natural law constraint.”[1]

Moreover, under the NLRA and the RLA, the union officials with whom employers are forced to negotiate must be recognized by the employers as the “exclusive representatives of all the employees,” union members and nonmembers alike, in the “unit” in respect to “rates of pay, wages, hours of employment or other conditions of employment . . . .”

‘Legislative Delegation in Its Most Obnoxious Form’

In principle, the argument against government-imposed compulsory bargaining is strong regardless of whether the employer is a private business or a public agency.

And by coupling compulsory bargaining in the private sector with “exclusivity,” federal labor law makes matters far worse.  In fact, the impact federal policy now has on employees and employers in industry after industry is basically the same as the impact of the long-defunct 1935 Bituminous Coal Conservation Act (BCCA) on mining workers and firms.  This is how a unanimous U.S. Supreme Court characterized the impact of the BCCA in its decision overturning the law:

The effect, in respect of wages and hours, is to subject the dissenting minority . . . to the will of the stated majority. . . . The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority.  This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, but to private persons whose interests may be and often are adverse to the interests of others. . . .  And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property.[2]

Problem of Compulsory Bargaining Is Greatly Exacerbated When the Public Is the Employer

In the government sector, the problem of compulsory bargaining — even when, as is at least theoretically possible, it is unaccompanied by other Big Labor special privileges such as “exclusivity” — is far more severe than in the private sector.

When public employers are statutorily required to bargain with union officials over how employees are compensated, taxpayers’ money and the provision of vital public services like K-12 schools, fire protection, and law enforcement are on the line.

Business owners or managers who are confronted with union-boss demands that reduce customer satisfaction and/or hike compensation costs by more than is necessary to retain conscientious and talented employees and avoid excessive turnover have a strong incentive to resist.  If they fail to do so, the very existence of their company may well be jeopardized.

But public school boards, police and fire departments, and other government agencies aren’t like businesses.  Their incentives to furnish good services at a reasonable cost to taxpayers are relatively small.  That’s because, unlike in the private sector, dissatisfied purchasers and consumers of public services cannot ordinarily just take their business elsewhere.

Thanks largely to the persistent and determined lobbying efforts of the members of the National Right to Work Committee, there is not now and there never has been a federal law forcing any state or local government employers to bargain collectively with unions or, specifically, to recognize any union as employees’ “exclusive” bargaining agent.[3]

Not One State Authorizes Monopolistic Union Bargaining Over All Nonsupervisory Public Employees

Consequently, states remain free to refuse to adopt any law instituting compulsory union bargaining of any kind in the public sector.

According to an analysis by the National Right to Work Legal Defense Foundation, not a single state authorizes monopolistic union bargaining over all nonsupervisory public employees.

Two states, North Carolina and Virginia, have statutory prohibitions against any government-sector bargaining.  And an additional nine states — Alabama, Arizona, Arkansas, Colorado, Mississippi, South Carolina, Texas, West Virginia, and Wyoming — have no statewide statute or state constitutional provision forcing any category of government employer to engage in any form of bargaining with any union.

As we have seen, the North Carolina and Virginia labor laws are sound public policy.  All states should follow them in outlawing government-sector collective bargaining across the board.  At the very least, current state laws forcing state and/or local public employers to bargain with union officials should be revoked.

At this time, some three dozen states force government employers, under certain conditions, to negotiate with union officials over public servants’ terms of employment.  And under all these statutes, whenever public employers are forced to bargain with a union, they are also forced to grant it “exclusivity.” Effectively, union bosses are empowered to co-manage nonmembers as well as members.

Because the NLRA and the RLA generally preempt state law, state legislators and chief executives lack the authority to address the problem of union monopoly bargaining in the private sector.  Fortunately, as we have seen, state lawmakers are not similarly constrained when it comes to the special privileges of government union officials.

Monopoly-Bargaining Privileges Are, in Themselves, ‘Sufficient Compensation’ For Any Expenses Union Officials May Incur While Wielding Those Privileges

As the U.S. Court of Appeals for the D.C. Circuit has affirmed in a decision that was later blessed by the U.S. Supreme Court, union officials’ legal prerogative to become “the exclusive bargaining agent of all employees in a bargaining unit” is an “extraordinary privilege” for them as well as an “abridgment” of the “fundamental rights” of employees who don’t want a union.[4]

Nevertheless, incredible as it may seem, union litigants, their attorneys, and some spokesmen for conservative policy think tanks[5] take the position that monopoly bargaining is somehow burdensome for Big Labor.

This position is so ill-founded that even Mark Pearce, the ex-union lawyer chosen by President Barack Obama to be the chairman of the National Labor Relations Board (NLRB), couldn’t see his way to endorsing union bosses’ warped logic when he was presented last year with an opportunity to do so.

On March 30, 2016, an Obama NLRB panel including Pearce ruled 3-0 that the bosses of Local 720 of the International Alliance of Theatrical Stage Employees (IATSE) union may not use the “exclusive” hiring hall they operate to discriminate against employees who live in a Right to Work state and exercise their freedom not to join or bankroll Local 720.

In its unanimous IATSE Local 720 ruling, the NLRB upheld an earlier ruling by Administrative Law Judge Kenneth Chu who had observed that “exclusive representation” vests a union with “comprehensive authority” over the “users” of a hiring hall, putting such users in a position of “dependence” on union officials.

The power and control Big Labor derives from monopoly-bargaining privileges, Chu concluded, are “sufficient compensation” for any expenses union bosses might incur while wielding those privileges over employees in Right to Work states who exercise their legal option not to join or bankroll an unwanted union.

In short, Kenneth Chu and the three Obama-appointed NLRB members who fully concurred with his decision rejected without qualification the arguments union officials and their apologists commonly make regarding the supposed “burdensomeness” of union “exclusivity” in Right to Work states.

The Political Game Is . . . Transformed From a Competitive, Pluralistic, Democratic Process Into a Shabby Device For Mulcting the Public’

While union officials unquestionably benefit from labor laws empowering them to force employers to negotiate with them and force all the employees in a “bargaining unit” to be subject to the deal that emerges, many employees clearly do not.[6]  And when compulsory bargaining and “exclusivity” are enshrined by law in the government sector, the consequences for taxpayers and other citizens who depend on public services such as K-12 schools are inevitably dire, as the late law professor Sylvester Petro explained more than 40 years ago in a prescient scholarly article:

With the special privileges granted by compulsory public-sector bargaining laws, each government-employee union becomes a wild card in a deck already stacked in its favor, and the political game is then transformed from a competitive, pluralistic, democratic process into a shabby device for mulcting the public. . . . In these circumstances, the public-sector unions have the means ready to debilitate, if not to overwhelm, the disposition of public resources, and the determination of public policy.[7]

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Stan Greer is the National Institute for Labor Relations Research’s senior research associate.  He may reached by e-mail at stg@nrtw.org or by phone at 703-321-9606.   Nothing here is to be construed as an attempt to aid or hinder the passage of any bill before Congress or any state legislature.

[1] Opportunity or Privilege: Labor Legislation in America. Social Philosophy and Policy Center, Bowling Green State University, Bowling Green, Ohio, 1984,  p. 52.

[2] Carter v. Carter Coal Company 298 U.S. 238 (1936).

[3] For an account of how the national Right to Work group, with relatively little assistance from other lobbying organizations, defeated a 2007-2010 attempt by Organized Labor to prevail upon Congress to federalize compulsory union recognition and monopoly bargaining in state and local public-safety employment, see “Right to Work Members Win Against Long Odds,” National Right to Work Newsletter, January 2011 edition, pp. 8-7.

[4] National Maritime Union v. Paul Herzog, 78 F. Supp. 146, 155-56 (D.D.C. 1946), affirmed, 334 U.S. 854 (1948).

[5] See, e.g., F. Vincent Vernuccio and Jeremy Lott, “Four Ways to Keep Michigan Rolling,” Detroit News, September 1, 2016.

[6] See, e.g., pp. 175-176 of legal scholar Sheldon Leader’s Freedom of Association: A Study in Labor Law and Political Theory, Yale University Press, New Haven and London, 1992.

[7] “Sovereignty and Compulsory Public Sector Bargaining,” 10 Wake Forest Law Review 25 (1974), see esp. pp. 112-13.

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