THE SMITH CENTER

for Private Enterprise Studies

Dick Armey's Voluntary Bargaining Bill
[H.R. 1341 (1993)]

by

Charles W. Baird
Emeritus Professor of Economics and Former Director of the Smith Center
California State University, East Bay, CA 94542

In 1993, in the first session of the 103rd Congress, Rep. Dick Armey of Texas submitted a bill to amend the National Labor Relations Act (NLRA) to do away with exclusive representation (monopoly union bargaining), and, therefore, union security (forced payment of union dues). It was ignored in Congress and almost totally unnoticed in the press. The NLRA is a very long statute. It has to be in order to make plausible its very implausible provisions. For example, Section 7 of the NLRA says
Employees shall have the right of self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the purpose of collective bargaining and shall also have the right to refrain from any or all of such activities
except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized
in section 8(a)3 [emphasis added].

It simply is not true that the NLRA allows workers to designate "representatives of their own choosing. " Individual workers must submit to the will of a majority of their colleagues on the selection of representatives, and once a union wins a certification election it is presumed to continue to have majority support indefinitely. Note especially the effect of the italicized words at the end of the Section 7. First we are told workers are free to refrain from unionism, and then we are told that really are not free to do so.
Section 8(a)3 says it is an unfair labor practice for an employer
by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor
organization: Provided that nothing in this Act shall preclude an employer from making an agreement with a labor organization to require as a condition of
employment membership therein. [emphasis added].

So workers cannot be discriminated against on the basis of whether they are union members or not except that they can be denied employment for not becoming a union member.

Armey's bill eliminated the italicized portions of the two cited sections. In other words, it eliminated union security. It went on to rewrite Section 9(a) of the NLRA, which in its present form creates the exclusive representation privilege for unions. Armey's proposed Section 9(a) provided that whenever a union received a majority of votes in a certification election it would be the only union representing workers in that venue. However, individual workers, even those who voted for the union, could opt out of representation by the union and decide to represent themselves in bargaining for their own wages, hours and other terms and conditions of employment. The terms and conditions negotiated by the union would apply only to those workers who opted to be represented by the union. So although a certified union would not have to contend with competing unions, it would represent only those workers who wanted the representation and were willing to pay for it. Moreover, those who agreed to accept the representation and pay for it would have to affirm their consent in writing, and their consent could be withdrawn at any time.

Armey's bill was a major step in the right direction. However, it didn't go far enough. Not all individual workers would be free to designate representatives of their own choosing. If Union A were certified by majority vote, workers who wanted to be represented by Union B rather than represent themselves would be precluded from doing so. If all individuals were really free to pick their representatives they would have to be able to pick any representatives they like. Some would pick other individuals, some would pick other unions, some would pick nonunion organizations such as employment agencies, and some would decide to represent themselves. There would be pluralistic representation. Armey's bill restricted workers to monopoly union representation or self-representation.

Moreover, Armey's bill did nothing to eliminate mandatory good faith bargaining because employers would be forced to bargain in good faith with any union that was certified by majority vote, even if, after the certification, a majority of the workers opted out of coverage by the collective bargaining agreement. Presumably an employer would have to bargain with the certified union as long as the union represented at least one employee. In ordinary contract law, all of the parties to a contract have to have consented to enter into the bargaining process and have agreed to all the terms that emerge as a result of the bargaining process. Contracts that are the result of coerced bargaining are considered null and void. But when it comes to collective bargaining contracts involving unions, coercion permeates every step of the bargaining process. This is an example of what Edwin Vieira calls the "apartheid of labor law" in this country. The U.S. Constitution supposedly guarantees all the equal protection of the laws. It appears that unions are more equal than others.

I do not want to hold pluralistic representation hostage to the repeal of mandatory bargaining. Both should go, but I would settle for Armey's bill as a downpayment on truly voluntary unionism. Before 1935 it was legal for different workers doing the same job for the same employer to be represented by different unions. This was called members-only bargaining, and it was usually done by the unions forming a joint bargaining committee made up of members from unions in proportion to the workers they represented. So if there were 100 workers with 25 represented by Union A, 50 by union B, and 25 representing themselves, the bargaining committee's makeup would be one-third (25/75) from union A and two-thirds from union B. This usually worked fairly well. In fact, members-only bargaining is typical in most of Europe. The original NLRA invented monopoly bargaining (exclusive representation) which was soon copied in Canada The U. S. and Canada are still the only major countries in which it is used.

Now that his party also has the White House, someone should get Dick Armey busy again writing a bill that would guarantee true freedom of association for all workers. A good model for him to follow would be New Zealand's 1991 Employment Contracts Act.