All Commentary
Friday, May 19, 2017

No Representation without Consent – Not Even from Unions

Just because something is legal doesn't mean it's right or just.

When the American colonists complained that the British subjected them to taxation without representation, the British responded that the colonists’ interests were represented in Parliament. The colonists rejected that argument on the grounds that they didn’t consent to that representation. The principle of no taxation without representation doesn’t constrain government if government can impose unwanted representation. A second principle – no representation without consent – is needed to give the first its meaning as a claim of right. That second principle is also applicable to the representation of workers by unions.

A Tale of Two Unions

In France, eight percent of workers are union members, but 98 percent of workers are bound by the terms of employment that unions negotiate. (Good luck to President Macron in his quest for labor law reform.) While some workers may not care that unions represent them without their consent, it is likely that many more resent the fact.

In France, 8% of workers are union members, but 98% are bound by the unions’ terms of employment.In the US, 10.7 percent of workers are union members, while 11.9 percent of workers are covered (Table I, All Wage and Salary Workers) by union-negotiated terms of employment. While the discrepancy is much smaller than it is in France, the same urgent question demands an answer: should anyone be forced to accept representation services from any private entity against his or her will?

In France, unions get their privilege of forced representation from laws that command employers, even employers whose employees are union-free, to deal with “works councils” when forming the terms and conditions of employment (as well as other business decision-making). Those same laws require that unions be the sole representatives of workers in the councils. French law makes forced representation legal, but it does not make it right or just.

In the US, the unions’ forced representation privilege emerges from Section 9(a) of the National Labor Relations Act (NLRA). It is called “exclusive representation”: if a union gets at least 50 percent plus one of the workers in an enterprise to vote in favor of the union’s representation, then all workers therein must be represented by the union – even those who voted against such representation and those who abstained from voting. As in France, American labor law makes forced representation legal; it does not make it right or just.

Unions vs. the Constitution

Unions defend exclusive representation on the grounds that it is democratic. All workers get to vote, and therefore all workers are bound by the outcome. Furthermore, unions argue, it is routine for private organizations such as clubs and fraternal associations to make many decisions on the basis of majority vote. So why should union representation be different?

Because it is different: government forces union representation to be decided by majority rule. Majority rule in clubs and fraternal associations is adopted without government coercion. Democracy is a form of government, and unions are not governments. In a democracy, a numerical minority is forced to give way to a numerical majority on matters that are within the appropriate scope of government. No one claims that because we live in a democratic country, numerical minorities must give in to numerical majorities about whether to associate with a specific church, if any. The First Amendment takes that decision out of the appropriate scope of government.

Government forces union representation to be decided by majority rule.The First Amendment also guarantees freedom of association. It takes the question of whether numerical minorities must give in to numerical majorities with respect to whether to associate with a specific, or any, labor union out of the appropriate scope of government. Yet the NLRA forces individual workers in a numerical minority to give in to the will of the other individual workers in a numerical majority on the question of union representation. The NLRA trumps the First Amendment.

When the Supreme Court upheld the constitutionality of the NLRA in its 1937 Jones & Laughlin decision, it did so on the basis of its reading of Congress’ power to regulate interstate commerce. It arbitrarily asserted that “commerce” included localized manufacturing, contrary to a century of rulings to the contrary. The Court ignored the issue of forced representation.

This decision is a notorious example of results-based, rather than principles-based, jurisprudence. President Franklin Roosevelt threatened to pack the Court if the Justices didn’t decide in his favor on the Jones & Laughlin case. The sad fact is that too many Supreme Court justices can, and too often do, make it up as they go along to bring about the results they want or think they need.

One Vote for All Time

The unions’ appeal to democracy to justify exclusive representation is embarrassingly disingenuous. Once a union wins a representation election, it never again has to stand for reelection. For example, there are no members of the United Auto Workers currently employed making cars in Detroit who voted on union representation. The UAW won elections in the 1930s and 40s, and all the workers who voted in those elections are retired or deceased.

In Wisconsin, Scott Walker’s Act 10 did away with this one-vote-for-all-time rule as it applies to Wisconsin’s government employees by stipulating that once-elected unions must stand for reelection on a regular basis – just like the members of the Wisconsin Legislature must stand for re-election on a regular basis.

Once a union wins a representation election, it never again has to stand for reelection.The unions call Walker a union buster. I call him a worker protector.

The Employee Rights Act, originally proposed in 2011 and re-submitted in the current (115th) Congress, would, if adopted, do away with the one-vote-for-all-time rule for all private-sector unions. It would require a new representation election when there has been at least a 50 percent turnover among employees since the last election.

That would be nice, but it is not nearly enough. The only way to adequately solve the problem of representation without consent is to abolish exclusive representation. Sadly, no one in Congress or in the White House is proposing to do so.

As a last resort, unions defend exclusive representation on the grounds that collective bargaining would be “too complicated” if employers had to deal with more than one union as well as union-free individual workers. This is a merely utilitarian argument which ignores the no-representation-without-consent principle. Moreover, it is proven to be a lie because, prior to the adoption of the NLRA in 1935, members-only bargaining was routine and successful (Charles W. Baird, “Toward Equality and Justice in Labor Markets,” The Journal of Social, Political and Economic Studies Summer 1995: 163-186, available from the author on request as a pdf file) Never underestimate the power of entrepreneurship to discover simple solutions to seemingly complicated puzzles.

The Right to Work

Much has been written recently about right-to-work (RTW) laws. The NLRA gives states the power to stipulate that, within their respective jurisdictions, no private-sector worker represented by a union against his or her will can be forced to pay for the unwanted representation. Twenty-eight states have adopted such laws, including prior bastions of union privilege such as Michigan, which did so in 2013.

The right to work is one characteristic of any society that deserves to be called free.Forced payment for unwanted union representation by government-sector workers is under attack in the courts. Many think that had it not been for the unexpected death of Justice Antonin Scalia in 2016, such coerced takings would be illegal today, but there is another case on this issue heading to the Supreme Court. If the Court agrees to hear the case, it is likely that all government employees will soon have RTW protection against forced takings by the unions that represent them, especially since Justice Neil Gorsuch has replaced Justice Scalia on the Court.

There is even a National Right-to-Work Act under consideration in the current Congress. If passed, no private-sector worker in the US could be forced to pay for unwanted union representation. But the prospects for enactment of this legislation are poor. Unions, notwithstanding their 10.7 percent market share, have too much political power, just as they do in France.

It is crucial to understand that RTW laws do nothing about representation without consent. Even with such laws, workers are still forced to accept unwanted union representation; they just don’t have to pay for it. If exclusive representation were abolished, right-to-work laws would be irrelevant. Only voluntary union members would have to pay union dues to pay for the representation services they want, and unions would only represent their voluntary members. That is one characteristic of any society that deserves to be called free.

  • 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.