James Sherk is a Senior Policy Analyst in Labor Economics at the Heritage Foundation.  This post is part of a series: Heather Whitney’s initial post, Mr. Sherk’s reply, Ms. Whitney’s response, and Professor Catherine Fisk’s reply.

Thanks to Heather and Catherine for their thoughtful replies about the Takings clause and Right-to-Work. To respond to Heather’s second point first, Congress has given unions a choice of becoming exclusive representatives or not. They certainly receive benefits from doing so. These include mandatory employer recognition and the power to impose contract terms (like seniority systems) on unwilling workers. Congress has coupled these benefits with a condition—in right-to-work states unions may not compel non-members to pay for (potentially unwanted) representation. Unions need not seek exclusive representation if they feel the costs outweigh the benefits.

Members’ only unions remain legally free to use other tools at their disposal—such as strikes or corporate campaigns—to pressure employers to bargain with them. Before Congress passed the NLRA in 1935 unions did exactly that—and they represented a greater proportion of workers then than they do now. Unions today frequently use corporate campaigns to compel recognition outside NLRB elections. (The AFL-CIO claims 80 percent of their new members join after card-check campaigns). Unions could just as easily demand members-only recognition through such means. Unions choose exclusive representation; they could operate without it.

For this reason Takings problems do not arise in Sweeney. Right-to-work laws do not force unions to transfer their own property to anyone. They merely condition the benefits unions get from exclusive representation on voluntary dues. I am a labor economist, not a lawyer, but the government modifying the terms on which it grants unions (or any other organization) powers seems a far cry from a Takings. In Koontz v. St. Johns River Water Management Dist., the Court dealt with extraneous conditions put on exercising property rights. However, unions have no more property right to unionized workers’ wages than McDonald’s does to its customers’ income.

As to Heather’s first point about preemption, federal law does not provide “unions the right to be the exclusive representative of a bargaining unit, with reimbursement from non-members for those additional costs, when the union achieves majority status.” § 8(a)(3) of the National Labor Relations Act (NLRA) prohibits discrimination on the basis of union membership, with an exception not thereby prohibiting mandatory membership. This non-prohibition does not itself mandate agency fees from non-members. Individual employers can refuse to include mandatory-dues provisions in their contracts. States can also make agency fees voluntary without violating federal law.

Preemption issues do not arise because “the purpose of Congress is the ultimate touchstone” in preemption cases. And as the Supreme Court has recognized, Congress added § 14(b) to make clear that the NLRA does not preempt state laws prohibiting forced dues. As Justice Douglas wrote in Retail Clerks International Assn., Local 1625 vs. Schermerhorn (1963):

Congress undertook pervasive regulation of union-security agreements, raising in the minds of many whether it thereby preempted the field under the decision in Hill v. Florida and put such agreements beyond state control. That is one reason why a section, which later became § 14(b), appeared in the House bill—a provision described in the House Report as making clear and unambiguous the purpose of Congress not to preempt the field. That purpose was restated by the House Conference Report in explaining § 14(b) . . . There is thus conflict between state and federal law; but it is a conflict sanctioned by Congress with directions to give the right of way to state laws barring the execution and enforcement of union-security agreements.

When Congress expresses its intent to avoid preemption states may legislate as they choose.

As for Catherine’s points, we certainly have deep disagreements. Philosophically I am much less comfortable with a majority coercing an unwilling minority. Certainly I don’t see unions as sovereigns exercising government-like power over workers. I see the justification for unions resting on a natural right to free association—a right that includes the freedom not to join. Empirically, I also think unions could do more to compel recognition of members’ only unions than Catherine does. But these disagreements only pertain to the wisdom of adopting right-to-work laws—not their constitutionality. Whether or not right-to-work laws make good policy, they do not violate the 5th amendment.