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.
Daily News & Commentary
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July 3
California compromises with unions on housing; 11th Circuit rules against transgender teacher; Harvard removes hundreds from grad student union.
July 2
Block, Nanda, and Nayak argue that the NLRA is under attack, harming democracy; the EEOC files a motion to dismiss a lawsuit brought by former EEOC Commissioner Jocelyn Samuels; and SEIU Local 1000 strikes an agreement with the State of California to delay the state's return-to-office executive order for state workers.
July 1
In today’s news and commentary, the Department of Labor proposes to roll back minimum wage and overtime protections for home care workers, a federal judge dismissed a lawsuit by public defenders over a union’s Gaza statements, and Philadelphia’s largest municipal union is on strike for first time in nearly 40 years. On Monday, the U.S. […]
June 30
Antidiscrimination scholars question McDonnell Douglas, George Washington University Hospital bargained in bad faith, and NY regulators defend LPA dispensary law.
June 29
In today’s news and commentary, Trump v. CASA restricts nationwide injunctions, a preliminary injunction continues to stop DOL from shutting down Job Corps, and the minimum wage is set to rise in multiple cities and states. On Friday, the Supreme Court held in Trump v. CASA that universal injunctions “likely exceed the equitable authority that […]
June 27
Labor's role in Zohran Mamdani's victory; DHS funding amendment aims to expand guest worker programs; COSELL submission deadline rapidly approaching