National Labor Relations Act and Compulsory Unionism

by | Jan 3, 2024 | Regulation

Whether a worker wants union representation ought to be an individual decision. The federal and state laws that turn it into a collective decision should never have been passed and after they were passed, should have been declared unconstitutional.

Under the National Labor Relations Act and many state laws, labor unions have special powers and privileges not enjoyed by other private organizations. Other private organizations have to solicit support and membership one person at a time. Those who desire their services can join and/or send financial support, but can also leave if they become dissatisfied. Rarely do people entrust such organizations to act on their behalf as agents, but if they do, they’re free to end that authority at any time.

Under our labor relations laws, however, things are different.

Unions are not chosen individually but are voted in elections. Once voted in, the law confers upon them “exclusive representation” power, meaning that the union alone can negotiate for the workers and represent them in grievances. Workers who are unhappy with the union are not allowed to represent themselves and must pay union dues, even though much of what the union spends the money on is political in nature.

These laws are quintessential special interest laws, conferring benefits on one group (union officials and their allies) at the expense of other people, who lose liberty and property. The fact that unions almost invariably support the political party that has enacted those laws (the Democrats) makes it perfectly clear that the laws are not in the general interest of the public, but are special interest legislation.

For many years, those who oppose compulsory unionism have been chipping away at their scope through litigation. One of the most important rulings in that respect came in 2018 when the Supreme Court held in Janus v. AFSCME that public employees who are represented by unions cannot be compelled to pay dues to them. The Court reasoned that because the speech of public unions is so intertwined with politics, forcing dissident workers to pay dues would be tantamount to forced speech in violation of their First Amendment Rights.

Mark Janus, a public employee in Illinois, was represented by the American Federation of State, County, and Municipal Employees. He objected to the political messaging by the union and the Supreme Court agreed that forcing him and workers like him to pay dues for speech they disagree with is unconstitutional. That was a huge win for worker freedom and many public employees have stopped paying dues.

But what about the remaining hold that unions have over public employees, namely the fact that they still have to endure union representation they don’t want and don’t pay for? Why not take the next step and allow them to drop all association with “their” union?

That’s the issue in Goldstein v. Professional Staff Congress.  Avraham Goldstein is a professor of mathematics at the City University of New York (CUNY). Under New York law, all CUNY faculty are represented by the Professional Staff Congress (PSC), which was voted in as the union for the faculty decades ago. Professor Goldstein and his fellow plaintiffs are very unhappy with PSC, especially because it has embroiled itself in the battle between Israel and the Palestinians, attacking Israel. Professor Goldstein has resigned from PSC and, thanks to the Janus case, doesn’t have to provide financial support for it. But he wants to be able to completely sever ties with the union.

His suit was dismissed by the judge who heard the case, Obama-appointed Judge Paul Engelmayer.  As Goldstein’s appellate brief makes clear, the grounds cited for dismissal are irrelevant to the issues presented in the suit. No matter how the appellate court decides, it seems that this case is destined for the Supreme Court, which might take another look at the constitutionality of compulsory unionism. The Court might even decide that the freedom to decide whether you want someone else acting as your representative is a fundamental right.

At the same time that Goldstein is going through the courts, the National Labor Relations Board (NLRB) is busy trying to expand compulsory unionism. The NLRB is the federal agency established to enforce the National Labor Relations Act (NLRA), one of the many New Deal laws enacted to replace common law with “progressive” regulation intended to help interest groups get the outcomes they wanted. Under the NLRA, employees can vote on unionization and if a majority favors the union, it then becomes the exclusive representative of all. (The NLRA only applies to workers in the private sector.)

Once certified by the government as the winner, the union remains in power indefinitely. There are no period re-elections. Much depends on these elections.

In an attempt to further stack the deck in favor of union victories, the NLRB has imposed rules on what employers are allowed to do or say in elections to create “laboratory conditions” for the vote. The employer may not, for example, make any promise of improved wages or conditions if the union is kept out, nor may the employer say anything that might be interpreted as a threat, such as saying that the business might move if the union were to be voted in.

If the union loses the election, it often files an “unfair labor practice” charge against the company, seeking to invalidate the election. It used to be that after such a charge (assuming that an NLRB administrative law judge found it credible, which was usually the case), the remedy would be to order a new election. But now, the NLRB is making the remedy an order that the union has “won” and that the company must bargain with it. (Compulsory bargaining is another concept that’s contrary to the freedom that common law protected.) That was the ruling in I.N.S.A, Inc.

This is “administrative law” at its worst. Under the Constitution, Congress, not unelected bureaucrats, is supposed to make the laws. But Biden’s pro-union appointments to the NLRB are determined to make the law under the guise of “interpreting” the NLRA. This ruling will lead to more compulsory unionism.

Whether a worker wants union representation ought to be an individual decision. The federal and state laws that turn it into a collective decision should never have been passed and after they were passed, should have been declared unconstitutional. They weren’t, however, and now we have a war between workers trying to extricate themselves from unions they don’t want and federal officials who will use any pretext to help unions corral as many workers as possible.

Made available by the American Institute for Economic Research.

George Leef is director of editorial content for the James G. Martin Center for Academic Renewal. He holds a bachelor of arts degree from Carroll College (Waukesha, WI) and a juris doctor from Duke University School of Law. He was a vice president of the John Locke Foundation until 2003. A regular columnist for Forbes.com, Leef was book review editor of The Freeman, published by the Foundation for Economic Education, from 1996 to 2012. He has published numerous articles in The Freeman, Reason, The Free Market, Cato Journal, The Detroit News, Independent Review, and Regulation. He writes regularly for the National Review’s The Corner blog and for SeethruEdu.com.

The views expressed above represent those of the author and do not necessarily represent the views of the editors and publishers of Capitalism Magazine. Capitalism Magazine sometimes publishes articles we disagree with because we think the article provides information, or a contrasting point of view, that may be of value to our readers.

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