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 of the Heritage Foundation writes in:
As a conservative who works on labor policy issues for the Heritage Foundation, I partially agree with Jack’s post on Conservative Support for Alt-Labor. I absolutely agree that the 8(a)(2) ban on alternative forms of employee representation should go, and, like Robert VerBruggen, I agree the greatest problem with worker centers comes from their abusive picketing, not necessarily tactics that are inherent to the organizations. But I strongly disagree with both Jack and Benjamin about neutrality agreements and, in particular, the exclusive representation agreements they promote.
Contra Benjamin, I find exclusive representation highly coercive—even if employees have the option of working elsewhere. Richard Freeman famously described unions as having two roles in the workplace: They provide a formal voice for workers, and they act as monopolists. This “monopoly face” applies not just vis-à-vis workers and their employers but vis-à-vis workers within the firm.
In nonunion firms, workers who do not like their compensation packages can press to improve them. Firms often (although by no means always) listen. Research finds that individual employees bargain with employers over pay about as often as they face “take it or leave it” offers. Many employees have a non-trivial voice on the job.
Exclusive representation forcibly silences these individual voices. It legally requires all employees to speak with one voice through a union. This hurts employees whose preferences differ from the majority in the union. They cannot legally influence their working conditions except by quitting.
Consider the fact that unions typically support raises and layoffs based on seniority—not individual performance. Few new hires support this. Similarly, most hard workers want performance-based pay that recognizes their greater effort. Without exclusive representation, these workers could ask for contracts that reflect their desires. Even if these provisions went against the business’s general policy, the employer could make an exception.
With exclusive representation, it cannot. The law requires companies to ignore workers whose preferences differ from the union. So when the Giant Eagle grocery store in Edinboro, Pennsylvania, tried to give two dozen workers individual raises, their union filed a grievance. UFCW Local 23 wanted to ensure that all junior workers made less than their more senior colleagues. The fact that the store wanted to motivate hard work and the employees wanted to accept the raises did not matter. The arbitrator forced Giant Eagle to rescind the pay increases.
Exclusive representation gives unions the power to block mutually beneficial contracts between employers and employees. I—and most conservatives and libertarians—find this highly coercive.
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March 13
District court judge orders reinstatement of FLRA board member unlawfully removed by Trump, and the UAW files unfair labor practices charges against Volkswagen.
March 12
SAG-AFTRA complains about major video game studios’ AI proposal amid a months-long strike, and German unionized Ford workers criticize the automaker for rescinding an economic agreement in place since 2006.
March 11
Chavez-DeRemer confirmed as Labor Secretary; NLRB issues decisions with new quorum; Flex drivers deemed Amazon employees in Virginia
March 10
Iowa sets up court fight over trans anti-bias protections; Trump Administration seeks to revoke TSA union rights
March 9
Federal judge orders the reinstatement of NLRB Board Member Gwynne Wilcox; DOL reinstates about 120 employees who were facing termination
March 6
A federal judge hears Wilcox's challenge to her NLRB removal and the FTC announces a "Joint Labor Task Force."