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Monday, May 7, 2012

Attack on Freedom of Association

NLRB, Teamsters, and Senate gang up.

At the end of 2011 the National Labor Relations Board (NLRB), dominated by recess-appointed, pro-union members, voted to restrict severely the time that employers have to make their cases against unionization before representation elections. Opponents of the decision have called it a rule for “ambush” elections. Unions want only their pro-unionization arguments to be heard, and the NLRB is happy to help. So are many members of the Senate. Although NLRB regulations can be set aside by majority vote in both houses of Congress, on April 25  the Senate blocked an attempt to override the NLRB’s anti-free-speech rule.

Unions and their defenders are fond of claiming that workers’ freedom of association is violated when workers do not unionize. They seem to believe that all workers naturally want to unionize, and if they don’t it can only be because of employer perfidy. In fact most American workers do not want to unionize, and it has nothing to do with employer deceit. A September 2011 Rasmussen poll revealed that “[a]mong working Americans who do not belong to a union, just 13% would like to join a labor union where they work.”

There are several reasons for workers to choose to be union-free. For example, union-free enterprises offer more job security than their union-impaired counterparts because the latter are too sclerotic to adapt quickly to frequently changing global market conditions. Moreover, a union contract wage is both a ceiling and a floor. In a union-free environment the only ceiling on a worker’s wage is his productivity.

Two Aspects

Freedom of association correctly understood has two aspects: each person has a right to say yes and a right to say no to invitations from others to associate. Each person has a right to associate, for legal purposes, with any other person who is willing to associate with him. If any person is refused the right to say no to an offer of association, he does not have freedom of association.

A necessary, but not sufficient, condition for a worker to have effective freedom of association in the context of an attempt by a union to organize a workplace is to be able to hear and consider both pro- and anti-unionization arguments. The 1947 amendments to the National Labor Relations Act (NLRA) added section 8(c) which gives employers free-speech rights in representation elections. An employer who presents anti-unionization arguments to counter a union’s pro-unionization arguments is defending his employees’ freedom of association. The unions, the NLRB, and the Senate wish to shut down employer efforts to protect workers’ freedom of association.

An instructive example of how unions attack freedom of association is the Teamsters’ campaign against Durham School Services (Durham), a subsidiary of the United Kingdom’s National Express Group. Durham, the second largest operator of school buses in the United States, adopted a workplace-rights policy that parallels the key international conventions on freedom of association, including the UN Universal Declaration on Human Rights. While many companies have adopted such polices, Durham’s is one of the few that properly and effectively promotes freedom of association.

Refusal to Be Neutral

So how have the Teamsters reacted to the adoption of this sensible policy? With the help of at least two reliable union defenders–Professor John Logan and Michael Wasser of Americans Rights at Work–the Teamsters are alleging that Durham’s policy somehow is inconsistent with international conventions from which much of it derived. Logan (pdf) and Wasser argue that because Durham refuses to be neutral–that is, insists on giving employees the information necessary to make an informed choice—it is violating its employees’ freedom of association. This is like Barack Obama arguing that any views he disfavors should not be heard in the presidential campaign.

Logan and Wasser attempt to hide the true purpose of their complicity with the Teamsters by arguing that Durham is in violation of the UN Universal Declaration of Human Rights and International Labor Organization (ILO) Conventions 87 and 98. The National Express Group’s  (NEG) “Workplace Right Policy” (WRP) refutes the Teamsters and their defenders. For example, Article 20 of the UN Declaration states:

(1) Everyone has the right to freedom of peaceful assembly and association.

(2) No one may be compelled to belong to an association.

Freedom to Receive Information

Logan and Wasser quote part (1) but never acknowledge part (2). Item 1 of NEG’s WRP is a paraphrase and elaboration of Article 20. Article 19 of the UN Declaration, which Logan and Wasser also choose to ignore, says:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Item 3 of NEG’s WRP is a paraphrase of Article 19 and an affirmation that NEG honors in part (2) of Article 20 by promising to “ensure that employees have the information necessary to make a fully informed choice on the important issue of representation.” Close readings of these and other documents make it beyond dispute that the Teamsters-Logan-Wasser position is wrong.

They persist because they want to use freedom of association to disguise their true aim: compulsory unionism. The NLRB’s ambush election rule is more of the same. It seeks to force employees to vote before they can get enough information to make an informed choice. No matter how much unionists say otherwise, freedom of association, as guaranteed by the NLRA, the UN Universal Declaration of Human rights, and ILO Conventions 87 and 98, requires that all sides be heard.

  • Charles Baird is a professor of economics emeritus at California State University at East Bay.

    He specializes in the law and economics of labor relations, a subject on which he has published several articles in refereed journals and numerous shorter pieces with FEE.