Conservatives, Alt-Labor, and "Coercion"

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

Jack posted an excellent set of comments last week on Robert VerBruggen’s piece Why Conservatives Should Love Alt-Labor.  Both the piece and Jack’s comments are worth a close read.  I agree with VerBruggen and Jack that alt-labor should appeal to libertarians.  In addition to the types of alt-labor campaigns that VerBruggen and Jack mention, moreover, libertarians should be particularly enthusiastic about minority unionism.  As we’ve explained before on the blog, in a minority – or “members only” – system, unions represent and collectively bargain on behalf of only those workers who affirmatively decide to become union members.  So, minority unionism has none of the features that, according to VerBruggen, “drive[] conservatives and libertarians crazy about traditional unionization.”  Minority unionism is, in fact, a system that Catherine Fisk and I have argued is appropriate in right-to-work states.

But these points of agreement aside, I have a fairly fundamental disagreement with VerBruggen’s argument.  VerBruggen critiques “collective bargaining” – by which he means exclusive representation – as being a system that is “rife with coercion.”  Why is exclusive representation coercive?  Explains VerBruggen: “When a majority of workers vote to unionize, the union wins the legal right to represent all the workers.  Once workers unionize, it’s illegal for employers to negotiate directly with individual workers, even if neither the employer nor the worker in question has voluntarily agreed to this restriction.”  (My objection to VerBruggen’s coercion argument also makes me uncomfortable with Jack’s description of my unbundling proposal as “reject[ing] coercive unionism” because this description might suggest that I believe traditional unionism is coercive.)

VerBruggen’s claim of coercion here depends on the premise that some employees of a unionized firm – those who are covered by the collective bargaining agreement but who oppose the union – involuntarily agree to be bound by the collective bargaining agreement.  This construction of voluntariness, however, is out of place in the American legal system.  It’s out of place because any worker who does not like a collective bargaining agreement, or who would rather attempt to bargain an individual contract with her employer, is free to seek employment in any of the nonunion firms in the labor market – firms that today account for about 93% of the jobs in the private sector.  In our legal system, as long as employees have the freedom to choose between union and nonunion firms – which they do – accepting employment at a union firm constitutes voluntary acceptance of the terms and conditions of employment at that firm (so long, of course, as the terms and conditions are otherwise legal).

Perhaps this should not be so.  Perhaps we should believe that, because of an employer’s economic power, employee acceptance of the terms and conditions of employment is involuntary, and that employment contracts are the product of coercion.  This is not an implausible position. (See, for example, David Zimmerman’s discussion in Coercive Wage Offers).  But this is not the law today, nor is it how we generally understand the employment relationship.  In our economic and legal culture, if employees can choose among firms, their acceptance of the terms of an employment contract (again, the otherwise legal terms of an employment contract) at any one firm is understood to be voluntary.  VerBruggen’s argument about coercion thus relies on a view of voluntariness that is at odds with our legal understanding of employment.

There is, moreover, no reason to deem employees’ acceptance of terms in a nonunion firm to be voluntary, but to then turn around and deem involuntary employee acceptance of terms in a union firm.  This holds with respect to substantive terms – wages, hours, and working conditions – and with respect to the process through which those substantive terms are derived – either individual contracting (generally the take-it-or-leave it variety) or collective bargaining.  In both the union and nonunion settings, with respect to both substance and process, the source of voluntariness is the same: it derives from the employees’ freedom to choose among firms.

Perhaps, then, VerBruggen’s argument is that there is coercion in the union setting but not the nonunion one because the collective bargaining process is attributable to the government, rather than to the employer.  VanBruggen hints at this when he says that “[t]he problem is that for decades the government has been giving these organizations special legal privileges, severely limiting freedom of contract both for businesses and for workers who don’t support unions.”  But, at best, this observation would support an argument that employers are being coerced because they have no choice but to accept a collective bargaining relationship if employees desire one.  Maybe.  But VerBruggen’s observation provides no support for an argument that employees are being coerced.  As long as employees maintain the choice to pick a nonunion employer, acceptance of the collective bargaining process is a voluntary one.

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