Tag: unions

Against Forced Unionization

The Supreme Court has long applied exacting scrutiny to limitations placed on the freedoms of speech and association. Unfortunately, the Court has not extended such protection to those forcibly unionized.

In Abood v. Detroit Board of Education (1977), the Court accepted that promoting “labor peace”—limiting the number of competing workplace interests that bargain over the conditions of employment—was an interest so compelling that a state may mandate its employees’ association with a labor union, forcing them to subsidize that union’s speech and submit to it as their exclusive representative for negotiating with the government regarding their employment. Since that time, more than a dozen states have forcibly unionized independent contractors who are paid through Medicaid.

In 2003, Illinois forced its home healthcare workers to join and pay dues to the Service Employees International Union as their sole representative before the state. Workers subject to this coerced association have challenged the law as a violation of their First Amendment rights and the case is now before the Supreme Court. Cato, joined by the National Federation of Independent Business, has filed an amicus brief in support. We argue that Abood was wrong when it was decided and should now be overturned. Abood simply assumed without analysis that the Supreme Court had already recognized “labor peace” as a “compelling interest.”

But the cases Abood relied on only regarded “labor peace” as justifying Congress’s exercise of its Commerce Clause authority to regulate labor relations, not as a basis to override workers’ First Amendment rights—and a Commerce Clause analysis is logically irrelevant to the First Amendment. Furthermore, Abood turns the logic of the First Amendment on its head: Unions are designated as the exclusive representatives of those employees that are compelled to support them for the sole purpose of suppressing the speech of dissenting employees, but under Abood it is exactly this suppression of speech that validates coerced association under the First Amendment. Such logic can’t be reconciled with the Court’s strict scrutiny of laws in other First Amendment contexts.

Even if the Court chooses to maintain Abood, it should reject the coercive programs at issue here because they’re unsupported by Abood’s rationale and serve no other compelling state interest. The homecare workers subject to the law aren’t employed by the state. Although they’re paid through a Medicaid disbursal, every crucial aspect of the employment relationship, including workplace conditions, hiring, and firing, is determined by the individual cared-for by the worker. The union is thus limited to petitioning the state for greater pay and benefits. Given this limited scope, there can be no serious claim that SEIU’s exclusive representation of some workers has freed Illinois from any great burden due to “conflicting demands” from other workers. Whatever Abood’s long-term vitality, that flawed case doesn’t support the compelled unionization of workers who are in no way managed by the state.

The Supreme Court will hear Harris v. Quinn on January 21.

This blogpost was co-authored by Cato legal associate Lauren Barlow.

Protecting the Rights of Workers Against Forced Association

The Labor Management Relations Act (a.k.a. the Taft-Hartley Act) was passed in 1947 in order to curb the tide of unfair labor practices that had arisen since the National Labor Relations Act (NLRA) was passed in 1935. The NLRA established a legal regime that was friendly to unions and unfriendly to the rights of workers who dissented from attempts to unionize workplaces. Unions have many tools at their disposal to ease the path to unionization, but the government should not prefer the rights of those who wish to be unionized at the expense of those who do not.

One part of Taft-Hartley, Section 302, addresses the problem of corruption between unions and employers by prohibiting employers from giving “any money or thing of value” to a union seeking to represent its employees. Martin Mulhall is a 40-year employee for the Mardi Gras greyhound racetrack and casino in Hollywood, Florida, and he opposes the efforts of Local 355 to unionize Mardi Gras’s employees. Mr. Mulhall’s desire not to be unionized is no less valid or constitutionally protected than those who push for unionization, and thus he is a perfect example of an employee for whom the Taft-Hartley Act passed to protect.

Mr. Mulhall alleges that, in violation of Section 302, Local 355 and Mardi Gras exchanged “things of value” in order to smooth the path to unionization. In exchange for the union agreeing not to picket, boycott, or strike against Mardi Gras, as well as for financially supporting a ballot initiative that legalized slot machine gambling, Mardi Gras agreed to support Local 355’s efforts to organize its employees. Specifically, Mardi Gras gave the union access to employee records and to its facilities in order to engage in organizing efforts during non-working hours. Additionally, and most crucially, Mardi Gras agreed to waive its right to a secret-ballot election supervised by the National Labor Relations Board as well as its right to contest any unfair labor practices committed by the union during the process of organizing the workers.

Migration Opportunities for Lower-Skilled Workers

Today President Obama is meeting with immigration reform activists, labor unions, and business leaders to discuss immigration reform. The House Judiciary Committee is also having a hearing about opportunities for legal immigration and enforcement of existing laws. Opening the House hearing, Representative Bob Goodlatte (R-VA) said that any immigration reform “must prevent unauthorized immigration into the future.”

So far President Obama and the Senate blueprint for immigration reform have either not mentioned lower-skilled workers outside of agriculture and dairy or propose increasing the rules and regulations that currently make American guest worker visas unworkable. The 2007 immigration reform effort was stopped cold in the Senate when its guest worker provision was gutted because of union pressure—with help from then senator Barack Obama (D-IL) and then senator Jim DeMint (R-SC).

Unions and immigration restrictionists came together in 2007 to stop reform. If they cannot stop it again, they can certainly eviscerate much of the long term gains of a freer international labor market.

In a video released today, I discuss how immigration reform could severely reduce immigration problems going forward, including unauthorized immigration.  My three points in the video are:

  1. Increasing lawful migration opportunities for lower-skilled workers will funnel potential unauthorized immigrants into the legal market.
  2. Welcoming highly-skilled immigrants regardless of where they were educated jumpstarts innovation, entrepreneurship, and allows for firms to expand production in the United States while also increasing employment opportunities for native-born Americans.
  3. Pursuing border and immigration enforcement without a lower-skilled guest worker visa program is a waste of resources. The economic allure to immigrants of coming here is so great that many of them will knowingly and intentionally defy America’s international labor market regulations immigration laws if they are too restrictive. A legal avenue for lower-skilled workers to come to the United States in sufficient numbers to satisfy economic demand and eliminate the supply of unauthorized immigrants is essential.

Legalizing unauthorized immigration will be good for the United States and good for legalized workers. However, without a guest worker visa program going forward this reform will just be an improvement on President Reagan’s 1986 law, but with highly-skilled worker visas.

Democrats’ Problem: Teachers and Their Unions Just Like the Rest of Us

Let’s face it: everyone is trying to make a profit. There’s nothing wrong with that—it’s normal, with people doing things because they feel they’ll make them better off. The problem starts when you insist that you’re a saint—that you’re somehow far more selfless than most other people—and you just can’t keep up the charade any longer. Welcome to the Democratic Party’s teacher union problem.

It seems that trying to keep the party’s union-heavy base happy while simultaneously appearing unbeholden to entrenched interests is going to be a tricky balancing act for the Democrats. But dealing with teachers unions—which adding the National Education Association and American Federation of Teachers together have about 4.7 million members—is going to be particularly treacherous. Educators are by far the biggest unionized bloc, and almost certainly the most troublesome. Indeed, as the Los Angeles Times reports today, Democrats are particularly rent asunder on education issues, and a new movie about a parent taking on the union to turn a bad public school into a charter school—the so-called parent trigger—is driving another wedge.

The movie, Won’t Back Down, has already been panned by AFT president Randi Weingarten. But at least her union—unlike the larger and more obstinate National Education Association—acknowledges that there are education problems, and maybe the unions’ time-honored demand of “more money and no accountability” has had something to do with them.

“We bear a lot of responsibility for this,” Weingarten recently told the New York Times. ”We were focused—as unions are—on fairness and not as much on quality.”

No doubt part of the reason that at least the AFT is accepting a little blame is that it sees that teachers unions are losing the sympathies of many members of the public. People are seemingly growing tired of seeing unionized educators enjoying good incomes and expensive perks while those paying the taxes struggle and test scores languish.

The problem with the union reinvention—at least as captured by the Weingarten quote—is that it probably strikes many people as hollow. Why? Because they know that unions are run by normal people and represent normal people, and what they want first and foremost is not what’s best for kids or “fairness,” but getting as good a deal for themselves as possible. In other words, they are starting to see through unions’ selfless-angels facade—the public relations sham of people just wanting a living wage while they give the mythical 110 percent “for the kids” —and are glimpsing normal, profit-seeking human beings who have had a fairly cushy deal over the decades.

Teachers unions, as those of us at Cato’s Center for Educational Freedom have said, are not the root problem in education, nor are they or the people they represent any more evil or good than most other people. The root educational problem is that public schools are government schools, and politics—which cannot be detached from government—rewards concentrated special interests, of which unionized teachers are among the biggest.

For the Democratic Party, the big problem is that for decades the teachers unions have insisted that they and their members as far more noble than almost anyone else. At least, more noble than anyone openly seeking a profit, which is most people. But the public is catching on: teachers and their unions are just as self-interested as most other people, and government-run schooling has enabled them to get some awfully nice, taxpayer-funded deals. So what do you do? Acknowledge the paper-mache wings have fallen off and risk the wrath of the teacher unionists, or keep up the angelic charade and hope the public stops noticing reality? Neither is a happy prospect for the Democratic Party.

Teachers Unions Are But a Symptom of the Disease

Just as some public schooling defenders like to caricature their opponents as self-important, money-grubbing ”corporate reformers” or malevolent destroyers of “public education,” there is a tendency on the other side to attack teachers unions as the root of all evil. They aren’t. They are a natural symptom of a government monopoly that, because it is a monopoly, strongly favors the monopolization of labor. One employer, one employee representative.

Unless someone has compelling evidence to the contrary—I’ve never seen any—teacher union officials and members are no different than anyone else: they are simply trying to get the best deals for themselves.  What separates them from non-unionized workers—and unionized workers in the private sector—is not their desires, but that their employment comes from a system into which ”customers” must pay, and which is controlled completely by politics. Public-sector unions have big advantages in politics, where organization, numbers, and motivation—millions of people advocating for their very livelihoods—translate into power.

That brings us to today’s Wall Street Journal piece on union political spending. That spending is huge, and manifested in far more ways than contributions to candidates. Between 2005 and 2011 the Journal estimates unions spent $3.3 billion on political activities, which beyond candidate donations included everything from trying to persuade members to vote a certain way, to supplying bratwursts to demonstrators in Wisconsin.

There would be no major freedom issue if all of this were spending by unions with completely voluntary membership, and which operated in truly free markets. There would, then, be no compelled support of politicking. But this is absolutely not the case when it comes to teachers unions and other public sector unions.

For one thing, teachers often are, for all intents and purposes, forced to join unions as a condition of employment, even when they are required to ”just” pay big “agency fees” to cover collective bargaining. Moreover, the ultimately taxpayer-supplied dues money is used to get more dough out of taxpayers who have no choice but to be schools’ “customers.” And we’re not talking pocket change here: according to the Journal’s numbers, between 2005 and 2011 the National Education Association spent $239 million on politics and lobbying, and the American Federation of Teachers spent $138 million. And that doesn’t include the outlays of all their state and local affiliates.

Despite those power-wielding expenditures, the members and leaders of teachers unions still aren’t evil. They are normal, self-interested folks. The effects of their actions, however, are to compel people to fund political speech and activities against their will, and often against their personal interests. But we shouldn’t attack unions for that. We must attack the government schooling monopoly.

Scott Walker’s Reforms Are a Good Start

All eyes are on Wisconsin today to see whether Governor Scott Walker’s budget and public-sector union reforms will be validated by the voting public. I applaud Walker’s reforms. But his reforms should be just the first step. Virginia took the next step two decades ago and completely repealed collective bargaining in the public sector.

I happened to hear conservative radio talker Chris Plante this morning discussing his support of Walker, but saying something like “But I’m not against collective bargaining rights in either the private sector or the public sector.”

Too many conservatives, and maybe even some libertarians, seem to buy the labor union line that collective bargaining is somehow a fundamental “right,” like the freedom of speech. It isn’t. Collective bargaining in both the private and government sectors is monopoly unionism. It represents a violation of the freedom of association.

Here’s what Charles Baird says on www.DownsizingGovernment.org:

The ideas embodied in the federal union laws of the 1930s make no sense in today’s dynamic economy. Luckily, constant change and innovation in the private sector has relegated compulsory unionism to a fairly small area of U.S. industry. But the damage done by federal union legislation is still substantial. Many businesses and industries have likely failed or gone offshore because of the higher costs and inefficiencies created by federal union laws, while other businesses may not have expanded or opened in the first place. So the damage of today’s union laws is substantial, but often unseen, in terms of the domestic jobs and investment that the laws have discouraged.

Davis-Bacon, the Norris-LaGuardia Act, and the National Labor Relations Act serve the particular interests of unionized labor rather than the general interests of all labor. These laws abrogate one of the most important privileges and immunities of American citizens—the rights of individual workers to enter into hiring contracts with willing employers on terms that are mutually acceptable. …

The principle of exclusive representation [collective bargaining], as provided for in the NLRA, should be repealed. Workers should be free on an individual basis to hire a union to represent them or not represent them. They should not be forced to do so by majority vote. Unions are private associations, not governments. For government to tell workers that they must allow a union to represent them is for government to violate workers’ freedom of association. Restrictions on the freedom of workers to choose who represents them should be eliminated.

Against Forced Unionization of Independent Workers

Over the past decade, more than a dozen states have forced independent contractors who are paid through Medicaid to join public-sector unions.In 2003, Illinois unionized home healthcare workers and imbued the Service Employees International Union with the right to collect compulsory fees from the workers’ paychecks. Democracy is thus being turned on its head: the elected representatives for the people of Illinois have chosen a sub-representative for some of the people and given that sub-representative a taxing power.

In so doing, they have severely impaired home healthcare workers’ First Amendment right of association and the right to petition the government for a redress of grievances. Without limits on government’s ability to forcibly unionize people who indirectly receive government-funded compensation (an increasingly large group), more and more citizens will have to interact with their representatives through a government-designated intermediary (a union); our democracy will become even more dominated by special interests than it is now.

Cato, joined by the National Federation of Independent Business and the Mackinac Center, filed a brief urging the Supreme Court to address this issue and vindicate the First Amendment freedoms upon which a thriving democracy depends. We argue that the forcible unionization of home healthcare workers serves none of the compelling purposes for public-sector unionization that have been articulated by the Supreme Court.

Because the Court has long recognized that unionization impinges certain constitutional rights, it has limited public-sector collective bargaining to those situations which advance the aims of promoting “labor peace” and eliminating “free riders.” Labor peace is promoted by limiting competing workplace interests from bargaining over the conditions of employment — for example, two unions at the same workplace representing different colleagues. Free riders are non-union employees who enjoy the benefits of union-achieved gains without paying into the union’s war chest. But neither aim is promoted by a system, such as Illinois’s, in which employees work in different locations and in which the customer — the disabled person paying the homecare worker through a Medicaid disbursal—still controls every crucial aspect of the employment relationship, including hiring and firing.

This last fact is most telling: the Illinois law only allows collective bargaining for higher wages and more generous benefits. That is, the law is only about speech — petitioning the government for higher wages and benefits — and does not address workplace conditions at all.

As more and more states push to unionize more workers who indirectly receive government money — campaigns that, in face o dwindling private-sector union membership, have been called “labor’s biggest victory in over sixty years” — it is vital that the Supreme Court articulate a limiting principle on this practice. Otherwise, more and more of us will be forced to interact with our representatives only through government-appointed bodies.

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