October 15, 1998
Congress and Public Employee Unionism
by
Charles W. Baird
In last month's column I urged the 106th Congress, which convenes in January 1999, to amend the National Labor Relations Act to eliminate exclusive representation and union security in private sector unionism. Here, I consider these issues and one other in the context of government sector unionism.
Notwithstanding that individual state statutes govern unionism among state and local government employees, the Fourteenth Amendment gives Congress constitutional authority to protect the privileges and immunities of citizens of the United States. Congress should exercise that authority to void all state statutes that authorize exclusive representation, union security and mandatory good faith bargaining in state and local government employment. Among the privileges and immunities guaranteed to all citizens are the freedoms protected in the Bill of Rights. The US Supreme Court, in Gitlow v. New York (1925), applied the Bill of Rights restrictions on the federal government to state and local governments through the Fourteenth Amendment.
Exclusive representation is the doctrine by which individual workers are denied the right to decide for themselves whether they will be represented by a union in bargaining for terms and conditions of employment. The question of representation is decided by majority vote among workers rather than by individual free choice. Proponents of exclusive representation justify it by a false analogy to governmental elections. Majority rule is how we elect members of Congress; therefore, they argue, it is the way we should choose representatives in the workplace. It is simply workplace democracy. To oppose exclusive representation, they assert, is to be against democracy.
To the contrary, democracy - the mandatory submission of a minority to the will of a majority - applies only to governments. A government has a monopoly on the legal use of force, and like all monopolists it is prone to abuse its powers. Democracy was designed to check those abuses. It was not designed to apply to the choices people make in the private sphere of human action. There is nothing more private than the choice of whether to have an agent represent you in the sale of your labor services. The agent that represents you when you want to sell your house is not chosen by majority vote. Why should the agent that represents you in employment contracting be chosen by majority vote?
Under the Bill of Rights government is not supposed to intrude on an individual citizen's right to associate or not associate with any legal private organization. A union made up government workers who have individually chosen to have the union represent them is a legal, and constitutionally licit, private organization. However, in public employment the government is the employer. When a government says to a citizen that it will not hire him unless he agrees to be represented by a labor union chosen by a majority of workers at some point in the past, that government denies that citizen's right of freedom of association. A government employee union with exclusive representation privileges may, under existing statutes, be a legal private organization, but it is not constitutionally licit. Congress should eliminate exclusive representation in all government employment.
Union security is the doctrine by which workers who are represented by a union with exclusive representation privileges are forced to pay dues and fees to that union as a condition of initial and continuing employment. Its proponents argue that since the union represents all workers (because of exclusive representation) it is only fair that all workers pay a share of the costs of such representation. Otherwise many workers would choose to be free riders.
This free rider argument is transparent nonsense. If unions represented only their voluntary members - i.e., if there were no exclusive representation - there could be no free riders. More importantly, when a government as an employer tells a citizen that he may not become or remain a government employee unless he pays dues and fees to a union, that government denies that citizen's freedom of association. Congress should eliminate union security in all government employment.
Mandatory good faith bargaining is the doctrine that forces employers to bargain with unions on matters concerning the terms and conditions of employment. If a union demands to bargain with the employer on a particular matter, the employer must give in to the union's demand. Moreover, the employer must compromise with the union. No take-it-or-leave-it offers are allowed.
In government employment this means that a government must share the making of public policy with privileged, unelected private organizations. The terms and conditions of government employment are matters of public policy. Ordinary private organizations can lobby government, but only government employee unions have the privilege of statutes that force government agencies to bargain in good faith with them. Good faith bargaining is conducted behind closed doors. It requires government agencies to compromise with government employee unions. Government agencies are forbidden to set unilaterally terms and conditions of government employment without the concurrence of government employee unions. Not even the Sierra Club has that special access to government decisionmakers or that kind of influence over decisionmaking. Congress should eliminate mandatory good faith bargaining in all government employment.
Finally, unionism in federal employment is regulated by Title VII of the 1978 Civil Service Reform Act. That statute imposes exclusive representation, but not union security, on civilian federal employees. It also imposes mandatory good faith bargaining on federal agencies, although the permissible scope of the mandatory bargaining in federal employment is circumscribed compared to that in most state and local employment. Congress should repeal Title VII.