Freedom of Association ‘Requires That Both Sides Be Heard’

Teamster Freedom of Association Hustle

As economist Charles Baird explains in detail in a new scholarly paper, the individual employee can authentically consent to establishment of a union only if he or she has the opportunity to hear both sides of the story. Consequently, legal protections for employers’ free-speech rights in union organizing campaign are actually key safeguards for employee free choice. Image: Oxford Human Rights Hub

Early this week, the National Institute for Labor Relations Research had the honor of publishing “The Teamster Freedom of Association Hustle,” a new scholarly paper by noted classical-liberal economist Charles Baird.  (See the link above.)

As Baird explains in his paper, to understand properly what freedom of association (FOA) is one first needs to understand “the nature of voluntary exchange.”  Among the necessary criteria for a voluntary exchange are consent (all parties involved must agree to bargain over making an exchange and agree to the terms of any exchange that occurs), escape (all parties must be free to reject any offers they don’t like and walk away “without losing anything to which they are entitled”), and no misrepresentation (no party may “say something he knows to be false”).

Therefore, FOA, properly understood, protects the right of “all humans” to “associate with any other human beings who are willing to associate with them for purposes that do not trespass against the equal rights of others” (emphasis Baird’s).

The two principal laws governing private-sector employer-employee affairs in the U.S., the National Labor Relations Act (NLRA) and the Railway Labor Act (RLA), violate the principle of FOA in a variety of ways.  For Right to Work advocates, the two most important are monopoly bargaining and forced union dues/fees.

Under the monopoly-bargaining provisions in the NLRA and the RLA, if a majority of the employees in a federally-delineated “bargaining unit” favor a particular union, that union can acquire the legal power to speak for all employees on matters concerning their pay, benefits, and working conditions.  A union may wield the government-granted privilege to act as employees’ “exclusive” bargaining agent without the consent of the employer.

Under the forced-dues/fees provisions in the NLRA and RLA, a union that is certified or recognized as employees’ monopoly-bargaining agent may demand that the employer negotiate over a contract clause authorizing the termination of any employees who refuse to pay union dues or fees as a condition of employment.  Employers do not have to agree to forced-dues contract clauses, but simple refusal to bargain over such a clause is regarded as an “unfair labor practice” subject to fines and other punishments.  However, the forced-dues/fee provisions in the NLRA do not apply to employees working in states that have adopted Right to Work laws prohibiting compulsory union membership and financial support.

While the NLRA and RLA deny the individual employee the freedom to refuse to associate with a union, even if his or her employer would prefer that every employee have that prerogative, these statutes do recognize the right of a majority of employees in a “bargaining unit” to refrain from unionization.  If a majority of the employees participating in a union election vote no, and a majority of all employees refuse to sign a union card, then generally speaking the workplace remains union-free.  And a key way in which Congress gave “effect” to employees’ collective right to refrain from unionizing, as Baird observes, was by affirming the right of employers “to engage in free speech during election campaigns.”

Unfortunately, Big Labor respects neither the individual nor the collective right of employees to resist unionization.  To be sure, union officials recognize that directly attacking employees’ prerogative to vote against unionization is not a politically palatable strategy.  Instead, they claim that employees’ FOA is violated when business owners or managers say anything at all that might dissuade them from supporting a union.  Purely factual statements and expressions of opinion that are presented as such interfere with employees’ FOA, if they suggest in any way that “exclusive” union representation might not be beneficial.

As Baird explains, the demand by Big Labor and its apologists that employers abrogate the free-speech rights they have under the NLRA and the RLA whenever the exercise of those rights is inconvenient to union organizers is specifically anti-employee as well as contrary to any genuine understanding of FOA.  If employees “hear only the union side of the story,” they are unable to give their meaningful consent to unionization.  FOA “requires that both sides be heard as well as safety in the expression of workers’ decisions.”

Baird’s paper focuses on the abuse of the principle of FOA by International Brotherhood of Teamsters bosses and their apologists.  The Teamsters brass have been especially egregious in their cynical invocation of UN and International Labor Organization conventions regarding employees’ FOA, but officers of many other U.S. unions play similar word games.  Genuine protection for FOA would include repeal of the NLRA and RLA provisions authorizing and promoting union monopoly bargaining and forced dues and fees.  But until Congress is ready to do that robust debates over the potential merits and demerits of unionization can offer some degree of protection for employee freedom not to associate with a union.  It would be a very bad development if union kingpins were able to use either the law or intimidation tactics to shut down such debates.