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Tuesday, January 8, 2013

Unions: Freedom of Coercive Association?

One of the core tenets of unions is that they are a legitimate application of workers’ constitutionally protected freedom of association, so that anything that restricts unions violates that freedom of association. As Brenda Smith of the American Federation of Teachers (AFT) put it, “Exclusivity for a union with majority support is not a monopoly, it is democracy . . .  It allows employees to select their representative freely, without coercion from the employer. It allows them to amplify their voice through collective action under our constitutionally protected right to freedom of association.” Unfortunately for exponents of that argument, freedom of association does not endow the association with more powers than the members had as individuals. 

For instance, an individual who chooses not to work has no power to prevent someone else from taking the job, and freedom of association offers a group of workers no more power to do so. But government has given unions a host of special privileges, from monopoly representation to strike powers to exemptions from antitrust laws and union liability for member violence. Freedom of association does not justify these special privileges; in fact, they are inconsistent with freedom of association.

Monopoly unions backed by special government grants of power violate freedom of association in multiple ways. Current labor law and its interpretation violate all of the following:
the freedom of workers to not associate with a particular union or its members; 
• the freedom of workers to associate with non-union employers in workplace cooperation; 
• the freedom of employers to not associate with unions; and 
• the freedom of employers to associate only with workers who do not have any union involvement. 
In sum, unions’ freedom of association means one-way freedom for unions to force workers and employers to associate with them, denying the latter their own freedom of association.
A fundamental or inalienable human right must be one that everyone possesses. If one party’s exercise of a right prevents a second party’s exercise of the same right, it is only a right for the first party, not a human right. If the second party is required to accept the first party’s offer of association on the terms the first party offers, the second party is not free to choose his associations. Freedom of association would be a right of the first party; it would be denied to the second party. 
The upshot is that a fundamental right to freedom of association only means freedom to associate with those who also choose to associate with us—voluntary association on both sides. And that requires people’s freedom to refuse association with others against their will.
Labor law violates workers’ freedom not to associate with unions by forcing them to accept exclusive union representation whenever a majority of workers voting in a certification election voted for that union, regardless of the minority’s own votes or preferences. That forced representation is all but impossible to end, as well: Decertification is exceedingly difficult to execute. 
And it is not only a few workers who are forced to associate with and support unions. For instance, within a year of Wisconsin’s adoption of collective bargaining reforms in 2011, AFSCME membership fell from 62,818 to 28,745, and AFT lost 6,000 out of 17,000 members. Unions have also tried to further violate workers’ freedom of association by reducing the time employers have to make their case before certification elections and by pushing card-check proposals that would eliminate the necessity for a secret vote by workers.
Workers are also required to pay the union-dictated price for unions’ services, although those who didn’t vote for the union have revealed that they didn’t value those services enough to pay for them voluntarily. And costs of representation are inflated by accounting sleight of hand, so that many “representation” costs really go to the unions’ favorite political slush funds, even though more than one-third of union workers routinely vote against union-supported political positions. In the 1989 Beck case, the Supreme Court found that more than four-fifths of those union dues actually went to politics.
Labor law currently violates workers’ freedom to associate with non-union employers in workplace cooperation, such as quality circles and other worker involvement with workplace issues, because those forms of association have been outlawed as “company unions” (which is to say, not “real” unions). In other words, unions can hold both non-union employers and workers hostage by denying them the ability to improve labor-management relationships and productivity, unless they accept monopoly unions’ extortion for the privilege.
Labor law currently violates the freedom of employers to not associate with unions by forcing them to accept and “bargain in good faith” (compromise) with a union selected by a majority in a certification election. Under contract law, however, a contract in which any of the parties was required to bargain would be legally void. Ironically, this also means that a worker is not allowed to “associate” with himself in order to act as his own negotiator with an employer. 
Labor law currently violates the freedom of employers to associate only with workers who do not wish to have any union involvement by banning so-called yellow-dog contracts (which the Supreme Court called “a part of the constitutional rights of personal liberty and private property” in 1917, before those rights were taken away). In addition, since some yellow-dog contracts were actually pushed by workers who wanted to avoid union harassment, this also violates employees’ freedom of association.
Monopoly unions leverage one violation of freedom of association into an excuse for another. For instance, they claim they must be allowed to impose mandatory dues (“union security”) because some would “free ride” on union negotiating services. But government-mandated exclusive representation created this potential free-rider problem, and one union-coerced association abuse does not justify another.
Freedom of association, rightly understood, has long been a bedrock American principle. Alexis de Tocqueville celebrated our exercise of that freedom, and wrote, “The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to me almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society.” But unions have rhetorically twisted freedom of association into a special source of plunder that primarily denies freedom of association. As Frédéric Bastiat described it over a century and a half ago, “If the special privilege of government protection against competition—a monopoly—were granted only to one group . . . the iron workers, for instance, this act would . . . obviously be legal plunder.”
American labor law endorses the freedom of association, but it morphs individuals’ freedom of association into freedoms “to form, join, or assist labor organizations” to enable their collective bargaining. That is, it defends employee rights that can be advanced solely via unions, where such unionization inherently sacrifices workers’ (and employers’) individual freedom to determine their own associations. 
As John Ransom summarized it, “for unions freedom of association means workers are given only one representative, one association, one non-dissenting voice carefully following the party line.” That stands in sharp contrast with Thomas Jefferson’s recognition that “the first principle of association [is] the guarantee to everyone of a free exercise of his industry and the fruits acquired by it,” and that “The true foundation of republican government is the equal right of every citizen in his person and property and in their management.” Jefferson makes clear that unions’ supposed justification in freedom of association is not only false, but a contradiction in terms.

  • Gary M. Galles is a Professor of Economics at Pepperdine University and a member of the Foundation for Economic Education faculty network.

    In addition to his new book, Pathways to Policy Failures (2020), his books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014), and Apostle of Peace (2013).