Memo to Justice Kagan: Monopoly Bargaining Alone Puts Individual Employee ‘Under Powerful Compulsion’ to Join a Union

Blogging July 2 over at the National Right to Work Committee web site, I discussed how Justice Elena Kagan’s dissent in the National Right to Work Legal Defense Foundation-won U.S. Supreme Court case Harris v. Quinn disingenuously overlooks key concessions made by union lawyer Paul Smith during the Harris oral arguments back in January.  Smith effectively admitted that many government employees who are subject to monopoly union representation under state law suffer economic harm as a consequence.  And he also admitted, effectively, that Big Labor claims a constitutional prerogative to collect forced union dues or fees from employees who are harmed economically by union monopoly bargaining, as well as from those who may be helped.

(See the first and second links below for my July 2 Committee blog post and for the June 30 Harris decision, with Kagan’s dissent starting 40 pages in.)

As I indicated last week, this is hardly the only serious problem with Kagan’s assault on the Harris majority.  A second is her failure to acknowledge what the late Thomas E. Harris, then a top AFL-CIO lawyer and later chairman of the Federal Election Commission, recognized about monopoly bargaining in speech published in the principal AFL-CIO newsletter back in 1962.

Even as he viciously attacked the Right to Work cause and its advocates, Harris (no relation, of course, to Pam Harris, the lead plaintiff in the Harris case) admitted that union officials use their monopoly-bargaining privileges like a cattle prod to herd more workers under their control, and to punish those who resist.

“The fact that the union will negotiate the contract which regulates the incidents of [a worker’s] industrial life puts him under powerful compulsion to join the union,” wrote Harris.

That Harris’ observation remains true today is clear from the 2013 data on public-sector unionism in the 24 states with Right to Work laws on the books.  With the exception of public-safety employees in Michigan and a relative handful of government employees in Indiana, as well as public employees under yet-to-be expired forced-dues contracts in these two states, both of which adopted forced-dues bans in 2012, no public employees in the 24 Right to Work states could legally be fired for refusal to pay union dues or fees last year.  And yet data from the web site, maintained by respected labor economists Barry Hirsch and David Macpherson, show that nearly 83% of unionized government workers in Right to Work states as a group were dues-paying union members in 2013.

Moreover, that same year 23.4% of all government jobs in Right to Work states were unionized, a union “density” nearly two-and-a-half times as great as the private-sector average for forced-dues states.

The fact that roughly 83% of unionized public-sector employees in Right to Work states last year were union members doesn’t mean that nearly that high a share actually believe they are benefiting from unionism.  In Right to Work as well as forced-unionism states, a unionized employee has to join the union in order to have any say whatsoever over the contract that Big Labor negotiates with the employer.  Consequently, it is almost certainly more likely that, even in Right to Work states, an employee who doesn’t think the union in his workplace will nevertheless join, than than an employee who thinks the union is doing a good job will refuse to join and pay dues.

Kagan tries to suggest otherwise by citing the example of federal employees.  Well under half of federal employees choose to join the union that purports to represent them.  What Kagan 0verlooks is that the scope of federal union bosses’ monopoly-bargaining privileges is far more narrow than it is under state laws authorizing public-sector monopoly bargaining.  As the justice could have learned from reading the Wikipedia entry on the Federal Labor Relations Act, under this statute union bosses may not negotiate the “following working conditions . . . : Wages, Hours, Employee benefits, and Classifications of Jobs.”

For this reason, unionized federal employees are under far less “powerful compulsion” to join a union they don’t want than state or local government employees.  But had Kagan cited the available data for state and local government employees in Right to Work state, it would have shown that 83% join and pay dues.  This would certainly have undercut the Harris dissenters’ claim that restoring state and local government employees’ First Amendment freedom not to bankroll an unwanted union nationwide would “destroy” government unions.

While pro-forced unionism Justice Elena Kagan’s dissent in Harris v. Quinn darkly suggests few public employees will join even good unions if they’re given a free choice, data from Right to Work states indicate well over four out of five unionized employees will join voluntarily. And it’s unlikely that even 80% think they benefit, on the whole, from union monopoly bargaining. Image:


Kagan Dissent in Harris Case Is Less Than Forthright


Harris vQuinn – Supreme Court of the United States