A Labor Reform Proposal Conservatives Should Support

Jack Goldsmith

Jack Goldsmith is the Learned Hand Professor of Law at Harvard Law School, where he teaches and writes about national security law, international law, internet law, and, recently, labor history.  Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

The touchstone of conservative criticism of unions is worker “coercion” – the idea that individuals who don’t want to be in unions are required to join one if a majority of workers in the bargaining unit votes for one, or at least are required to pay agency fees for the non-political aspects of collective bargaining.  Conservatives have slowly been winning this argument for a while, in right-to-work-law states (where workers need not pay union fees) and, most recently, in Harris v. Quinn, which held that the imposition of an agency fee for certain public sector personal care providers violates the First Amendment.  As a result of this trend, in many instances it is now unions that are being “coerced” by exclusive representation laws that require them to represent all workers in the unit, even those who opt out and (in right to work states, or under Harris) don’t pay any fees.

This anomaly is the topic of Ben’s terrific op-ed with Catherine Fisk in the L.A. Times.  The nub of their argument:

Requiring unions to offer free representation to workers who do not want a union in the first place makes no sense. Nor does it make sense to have a system in which workers can benefit from union representation without paying their fair share. . . .

We can and should fix this. Where unions are unable to require objecting workers to pay fees — whether it’s in right-to-work states or in work situations that fall under Harris vs. Quinn — we should get rid of the rule of exclusive representation.

Under such a proposal, workers who don’t want a union would have a right to be genuinely nonunion: They wouldn’t be subject to the terms of the collective bargaining agreement, they wouldn’t have to interact with their employer through a collective agent, and they wouldn’t be required to pay anything to a union they didn’t vote for. Unions, for their part, would be required to represent only those workers who actually want representation.

Ben and Catherine note that this proposal would have downsides and might be messy to implement.  But it would have important upsides, not just in eliminating free-riding by non-paying workers, but also in forcing unions “to prove that they provide valuable services.”  Ben and Catherine continue:

If the union could secure wage and benefit gains through collective bargaining, then workers would have every incentive to sign up and pay dues (assuming, of course, that the cost of dues was lower than the benefits the union provided). If the union couldn’t deliver the goods, then workers wouldn’t join and wouldn’t pay. In either case, the success of unions would depend on their ability to succeed for workers.

This strikes me as a reform proposal that conservatives can and should support.  If conservatives take worker autonomy and worker freedom seriously, they should allow the workers who want to join unions to do so, and not allow those who refuse to pay union or agency fees to benefit and free-ride off of those who join the union and pay for it.  They should also support a system that makes the benefits (and costs) of unionization more transparent, and that moves in the direction of having unions’ success turn on their ability to convince each member or beneficiary that joining the union is cost-effective (i.e. warrants the fee).  I would not quite call Ben’s and Catherine’s proposal market-based unionism, but it is a step in that direction that conservatives should find congenial.  (I note that Real Clear Policy editor and libertarian labor critic Robert VerBruggen appears to agree with the thrust of the op-ed.)

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