James Sherk of Heritage on Members-Only Bargaining

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.

James Sherk, senior policy analyst in labor economics at The Heritage Foundation, writes in response to my post on A Labor Reform Proposal Conservatives Should Support:

I support members-only bargaining which prevents non-members from receiving union services. I wrote in support of that idea in a Heritage Backgrounder two years ago. It is a labor reform conservatives should support, and most do. The only quibble I have is that it should apply everywhere, not just in Right-to-Work states. The conservative objection to current labor law comes from its coercive nature. It forces workers to accept a service that they do not want and often hurts them. Conservatives should not object to unions formed through free association. In my view if workers choose a union’s services they should pay dues—but if they do not should neither have to pay nor have to accept its contract.

Virtually the entire ideological/philosophical right would line up behind this. National Right to Work originally got started by pushing for an end to forced representation, but couldn’t get any traction with it. Advocating for right-to-work was (from their point of view) a compromise position: “alright the unions can force workers to accept the contract they negotiated, even if they hate its provisions, but they can’t make workers pay them for unwanted services.” The Chamber of Commerce and business groups might oppose members’ only unions – their members probably wouldn’t want to have to deal with micro-unions – but conservative policy wonks and activists would enthusiastically support such a compromise.

However, the union movement would never go for this. If they did it would pass. Unions function as labor cartels. If they cannot control the supply of labor at a company or an industry they can’t benefit their members at the expense of nonmembers and those with less influence in the union. Under such a proposal senior teachers couldn’t force new hires to accept a massively back-loaded compensation system with low starting salaries and huge pension benefits for those near retirement. New teachers could negotiate for higher starting pay and a 401(k) style pension. Similarly union insiders (senior workers) could not force new hires to walk the plank when layoffs come. New hires could negotiate for performance-based layoffs. Which would mean the members with 3-4 years seniority would then get laid off first. They would back out, then so would those next in line, etc., and the seniority system would break down. Unions cannot accrue benefits to senior “insiders” if they can’t force junior “outsiders” to accept the short end of the stick.

Michigan State Rep. Mike Shirkey proposed members-only bargaining after Michigan passed the Right-to-Work law he sponsored. The unions in Michigan had complained bitterly against free riding in the Right-to-Work debate, so it seemed like a natural compromise. But the union movement came out immediately against it. The President of the Michigan chapter of the American Federation of Teachers changed his tune entirelyWhen there are some who stop paying dues, we still care about them, and we want working people treated right.” Similarly, Kansas legislators considered analogous legislation for government employees in their state. Government employee unions came out vehemently against it and called it an assault on collective bargaining.

In my experience unions care about free-riding to the extent it justifies forced dues. They do not actually want to stop representing “free riders” in Right-to-Work states.

The developments in Chattanooga Benjamin highlights present an interesting counterpoint to this. The UAW says it will form a members’ only union and negotiate members-only contracts (even if it gains majority support). At one level the union has no choice – most workers oppose it and this seems the UAW’s only way forward. It looks more like a strategic organizing decision than a change of heart. Certainly the UAW appears in no hurry to let “free riders” in Michigan negotiate separately (even though it legally could).

However, if the UAW does embrace members-only contracts it could represent a pivotal moment in labor relations. Both conservatives and liberals could support a labor law premised on free association—both the freedom to join a union and the freedom to decline its services.

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