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U.S. Supreme Court to Rule – Is Government Unionization a Free Speech Issue?

Since the Supreme Court has the power to stir up controversy like few other American institutions, public debate about government unionization is certain to intensify in coming months. This fall, the justices will take up Friedrichs v. California Teachers Association, which concerns the question of whether public sector workers can be required to pay “agency” fees to unions for collective bargaining expenses. Rebecca Friedrichs, an Orange County schoolteacher, believes that compulsory agency fees violate her First Amendment right not to subsidize speech to which she objects. Depending on how, and how broadly, the Court rules on this question, Friedrichs could be the most consequential labor case since at least the 1970s.

Allowing public employees to unionize has to be one of the worst policy ideas of the last 50 years. But to frame the issue as one of free speech is to overlook the fact that government unions do the greatest harm to the public, not individual government workers. Unions paralyze administrations, bankrupt cities, stifle local political life, and flout sovereignty. A ruling against the California Teachers Association would be a far greater victory for the cause of good government than for the First Amendment.

All discussion about public unions is shaped to some degree by labor’s decline in corporate America. Over the last three decades, private unions have lost members at a clip of roughly 150,000 per year on average. The collapse of private unions, a once reliable and wealthy constituency for the Democratic Party, has been an enormous political boon for public sector unions, because it increased demand for their resources. This decline has also neutralized Democrats’ ability to object to government unionization on principle. Back when the steel, coal, and autoworkers unions had real clout, many Democrats were openly opposed to expanding unions’ reach into the public sector. In a 1937 letter to the President of the National Federation of Federal Employees, President Franklin Roosevelt famously and forthrightly explained why “the process of collective bargaining, as usually understood, cannot be transplanted into the public service.” But, having just signed into law the National Labor Relations Act and spearheaded other union-friendly initiatives, FDR could say that without anyone accusing him of being anti-worker. Now, however, the Democratic Party can’t point to any significant achievements in strengthening unions, because no one has any good ideas about how to revive labor in the private sector. Their union bona fides are nothing like FDR’s were, so even Democrats who have serious misgivings about government unions’ right to exist must tiptoe around the point.

This is unfortunate, because Democrats, who hold most state and local offices in blue America, often grasp the nature of problem with special clarity. In Lessons of Hope, his memoir about serving as Michael Bloomberg’s schools chancellor, Joel Klein writes “[l]ike anyone who first encounters the teachers’ contract in New York City, I had trouble believing that certain parts of it were real.” Klein marveled at how poor teachers were not fired but “excessed.” Their jobs were eliminated “ostensibly through no fault of [their] own,” and they were sent off to find and claim an open position at some other unfortunate school, against the wishes of that school’s principal and even if it meant bumping a new teacher out of a job. (An annual ritual in many school systems, this “dance of the lemons” practice is featured in the 2010 documentary Waiting for Superman.) Never having worked in city government before, Klein was continually amazed at the United Federation of Teachers’ stunts, but these bizarro-world labor rules have been in place for years, among a variety of professions, and across the unionized public sector. Buzz Bissinger relates in his 1998 book A Prayer for the City that the Philadelphia Police Department “couldn’t hire sketch artists but instead under union rules had to give police officers art lessons.”

Unions have placed onerous workforce regulations into contracts through collective bargaining negotiations as well as into state laws by applying political pressure. Both tactics are daunting to overcome. Unlike with agency fees levied for collective bargaining purposes, a union non-member can opt-out of funding what the Supreme Court calls “political or ideological projects.” But, under current law, unions are allowed to collect dues for these purposes unless workers explicitly object. Since only a small percentage go to the trouble of doing so, the money keeps flowing in. The Center for Responsive Politics maintains a list of the “Top Organization Contributors” to federal political campaigns, parties, and other groups since 1990. Three out of the top six slots are occupied by government unions. Unions’ “taxing power” is an even more effective weapon on the state and local level. In 2012, California voters nixed Proposition 32, which would have prohibited unions from automatically deducting dues intended for political purposes. Unions and their allies spent $73 million to defeat this ballot initiative, $21 million from the California Teachers Association alone.

As for reforming workforce regulations via collective bargaining, the problem there is that almost nothing comes for free. Even changes with overwhelming public support often must be offset by some compensating financial advantage. In 2007, the autopsies of two Boston firefighters who died in a fire revealed traces of alcohol, cocaine, and marijuana. City government moved during the next bargaining round to institute random drug and alcohol testing for all firefighters but was thwarted until, following an arbitrator’s ruling, it agreed to grant a quid pro quo pay increase of 1.5 percent.

20150914-UW-Eide
In California the average urban firefighter earns pay and benefits well in excess of
$200,000 per year. These unaffordable rates of pay make it impossible to hire
more firefighters, undermining their safety and the safety of the public.

City budgets are mainly devoted to salaries and benefits which are, in turn, determined by collective bargaining contracts. Authorizing collective bargaining in the public sector means creating entities not only with an incentive to maximize their own benefit at the expense of taxpayers, but, in the case of union leadership, a legal obligation to do so as well. To fail to push city budgets to the brink of insolvency, and sometimes beyond, is, for union leadership, tantamount to leaving money on the table. Though no local government has declared bankruptcy since Detroit in June 2013, the ongoing struggles of Chicago and the Chicago Public Schools show that it’s only a matter of time before the next surge of municipal insolvencies. As Kristi Culpepper, a Kentucky state official and influential public finance analyst recently explained to Bloomberg, “Can you imagine a scenario where the CEO of a large corporation announced that the corporation is approaching insolvency, and the employees responded by asking for a raise? That is what is happening with Chicago Public Schools.”

A government with a unionized workforce is not truly sovereign; its commitment to the public is qualified by its legal commitment to accept collective bargaining. I once attended a city council meeting that took place while contract negotiations were underway and witnessed a series of the city’s duly elected officials stand up and publicly plead with union leadership to settle on reasonable terms. Who is in charge here?

Public employee unions are often likened to Tammany Hall, but the comparison is unfair—to Tammany Hall. For all their flaws, the old political machines reliably turned out voters and thus kept levels of civic participation high. During the era of rule by government union, local voting rates have plummeted. According to New York City’s Board of Elections, turnout in mayoral elections has declined from over 90 percent in the early 1950s to 26 percent in the recent 2013 election. Unions contribute substantially to voter apathy through bolstering one-party rule by Democrats. Far from being discontent over consistently uncompetitive elections and the lack of rival interest groups, unions celebrate their success at stifling local democracy: “We elect our bosses” boasts the American Federal State County Municipal Employees union in its promotional materials. Even at the height of their power, labor legends like Walter Reuther of the United Autoworkers and John L. Lewis of the United Mine Workers of America could not have made that claim.

States could quickly restore sanity to government budgets and administrations by rolling back their public labor laws. But that’s unlikely. With the federalist solution to government unionization unavailing, it therefore falls to the Supreme Court to save states from themselves.

The Left’s tendency to see the argument against government unionization as an attack on all organized labor is somewhat understandable, in that conservatives do often conflate the cases against public and private labor. Conservatives oppose unions because a weaker labor movement means a weaker Democratic Party and, in their view, a stronger economy, and because “compulsory unionization” cannot stand as a matter of principle. The Right tends to insist that under no circumstances should any worker, ever, be required to pay a cent in dues or fees to a union to which he does not wish to belong. “Right-to-work” laws, such as exist in 25 American states, prohibit compulsory fees.

Friedrichs v. California Teachers Association argues for the essential justice of right-to-work within the government employment context by raising the question of whether states’ public labor laws violate the First Amendment, and in the Roberts Court it may find a receptive audience. The conservative justices, Alito in particular, have painted a target on Abood v. Detroit Board of Education (1977), which relied on earlier decisions about private labor disputes to uphold the constitutionality of agency fees for government workers. The Abood Court saw no reason why, if the avoidance of free-ridership and the promotion of labor peace justified the existence of the private-sector agency shop, the same reasons would not apply equally well in the case of Detroit’s public schools.

Justice Alito believes that the Abood Court was not sensitive enough to the First Amendment concerns surrounding the imposition of agency fees in the public sector. Why does the law protect a teacher’s right to withhold financial support from a campaign to protect seniority when her union pursues it through lobbying but not when it does so at the bargaining table? In recent jurisprudence regarding narrower public labor questions, Alito has gone out of his way to question Abood’s reasoning. Writing for a 7-2 majority in Knox v. Service Employees International Union, Local 1000 (2012), he stated that “The justification for permitting a union to collect fees from nonmembers—to prevent them from free-riding on the union’s efforts—is an anomaly.” And it’s not only agency fees that Alito has a problem with on First Amendment grounds, but also unions’ legal ability to rely on an “opt out” system of dues collection: “An opt-out system creates a risk that the fees paid by non-members will be used to further political and ideological ends with which they do not agree.”

Friedrichs contemplates a future in which government unions function in a manner somewhat like Planned Parenthood, the American Association of Retired Persons, and the National Rifle Association. These groups are often vilified for their political influence despite depending heavily, if not exclusively, on annual appeals to donors for their funding. Some conservatives even argue that right-to-work strengthens unions, because leadership must work harder to earn members’ dues. Perhaps. It’s difficult to imagine that public unions’ decline will be as precipitous as private unions’, if for no other reason than school districts aren’t economically vulnerable like the steel and auto industries were. Nonetheless, decades of experience with right-to-work states attests that unions are weaker when they lack the power to tax workers.

To put a human face on things, Friedrichs is about the firefighter who believes that, during contract negotiations, when city managers say they can afford a 2 percent but not a 5 percent raise, they’re being sincere and not just poormouthing, as his IAFF local alleges. Or the teacher who would be happy to accept a higher salary in exchange for less-stringent job protections, while watching union leadership pursue the opposite course funded by her agency fees. The agency fee regime is particularly unjust to young teachers who are compelled to financially support “last-in-first-out” (LIFO) contract provisions that explicitly threaten their own interests. Again, younger teachers can prevent unions from using their money to support LIFO through lobbying, but at the bargaining table they have no such right of refusal.

Compulsory agency fees should offend all freedom-loving Americans. That said, should the Court rule against Friedrichs, it would be a minor defeat for the First Amendment, but a catastrophe for future generations still burdened with trillions in pension debt, failing school systems designed to maximize benefits for their adult workforces rather than the children forced to attend them, and once-great cities bankrupted by rapacious compensation demands. These are the parties who have faced the full brunt of government unions’ strategy of “concentrated benefits, diffuse costs,” and thus have the most riding on Friedrichs’s outcome. After their decades-long run of systematically plundering state and local budgets, nailing government unions on First Amendment violations feels a bit like going after Al Capone for tax evasion.

About the Author:  Stephen Eide is a senior fellow at the Manhattan Institute’s Center for State and Local Leadership. Steve received his doctorate in political science in Boston College and previously was a Senior Research Associate at the Worcester Regional Research Bureau. His research focuses on public employee unions, retirement benefits, public finance, and urban policy. This article originally appeared in “The American Interest” and is published here with permission from the author.

The Friedrichs Free Rider Fraud

The Supreme Court’s decision to hear the Friedrichs case has the unions in a tizzy.

On June 30th, the Supreme Court decided to hear Friedrichs v. California Teachers Association et al, a case that could seriously change the way the public employee unions (PEUs) do business. If the plaintiffs are victorious, teachers, nurses, sanitation workers, etc. would be able to work without the financial burden of paying union dues. The responses to the Court’s decision from the teachers unions and their friends have ranged from silly to contradictory to blatantly dishonest.

In a rare event, leaders of the NEA, AFT, CTA, AFSCME and SEIU released a joint statement explaining that worker freedom would be a catastrophe for the Republic. Clutching their hankies, they told us that, “big corporations and the wealthy few are rewriting the rules in their favor, knocking American families and our entire economy off-balance.” And then, with an obvious attempt at eliciting a gasp, “…the Supreme Court has chosen to take a case that threatens the fundamental promise of America.” (Perhaps the labor bosses misunderstood the wording of the preamble to the Constitution, “In order to form a more perfect union….” No, this was not an attempt to organize workers.) While the U.S. is not without its problems, removing forced unionism will hardly dent the “fundamental promise of America.”

The California Federation of Teachers, which typically is at the forefront of any class warfare sorties, didn’t disappoint. The union claims on its website that the activity of union foes “has resulted in a sharp decline in median wages for working people and the decline of the middle class alongside the increasing concentration of income and wealth in the hands of the one per cent.” But wait a minute – the unions are the most potent political force in the country today and have been for a while. According to Open Secrets, between 1989-2014, the much maligned one-percenter Koch Brothers ranked 59th in political donations behind 18 different unions. The National Education Association was #4 at $53,594,488 and the American Federation of Teachers was 12th at $36,713,325, while the Kochs spent a measly $18,083,948 during that time period. Also, as Mike Antonucci reports, the two national teachers unions, NEA and AFT, spend more on politics than AT&T, Goldman Sachs, Wal-Mart, Microsoft, General Electric, Chevron, Pfizer, Morgan Stanley, Lockheed Martin, FedEx, Boeing, Merrill Lynch, Exxon Mobil, Lehman Brothers, and the Walt Disney Corporation, combined.”

So the question to the unions becomes, “With your extraordinary political clout and assertion that working people’s wages and membership in the middle class are declining, just what good have you done?”

Apparently very little. In fact, the National Institute for Labor Relations Research reports that when disposable personal income – personal income minus taxes – is adjusted for differences in living costs, the seven states with the lowest incomes per capita (Alaska, California, Hawaii, Maine, Oregon, Vermont, and West Virginia) are forced-union states. “Of the nine states with the highest cost of living-adjusted disposable incomes in 2011, Iowa, Kansas, Nebraska, North Dakota, South Dakota, Texas, Virginia and Wyoming all have Right to Work laws.” Overall, the cost of living-adjusted disposable income per capita for Right to Work states in 2011 “was more than $36,800, or roughly $2200 higher than the average for forced-unionism states.”

But the most galling and downright fraudulent union allegations about Friedrichs concern the “free rider” issue. If the case is successful, public employees will have a choice whether or not they have to pay dues to a union as a condition of employment. (There are 25 states where workers now have this choice, but in the other 25 they are forced to pay to play.) The unions claim that since they are forced to represent all workers, that those who don’t pay their “fair share” are “freeloaders” or “free riders.” The unions would have a point if someone was sticking a gun to their collective heads and said, “Like it or not, you must represent all workers.” But as I wrote recently, the forced representation claim is a big fat lie. Heritage Foundation senior policy analyst James Sherk explains,

The National Labor Relations Act (NLRA) allows unions that demonstrate majority support to negotiate as exclusive representatives. If they do so they must negotiate fairly on behalf of all employees, including those who do not pay dues. However unions may disavow (or not obtain) exclusive representative status and negotiate only for their members. Nothing in the National Labor Relations Act forces exclusive representation on unwilling unions. (Emphasis added.)

Mike Antonucci adds,

The very first thing any new union wants is exclusivity. No other unions are allowed to negotiate on behalf of people in the bargaining unit. Unit members cannot hire their own agent, nor can they represent themselves. Making people pay for services they neither asked for nor want is a ‘privilege’ we reserve for government, not for private organizations. Unions are freeloading on those additional dues.

If there are still any doubters, George Meany, the first president of the AFL-CIO, whose rein began in 1955 and continued for 24 years, told Congress,

When a union has exclusive recognition with a federal activity or agency, that union is required to represent all workers in that unit, whether or not those workers are members of the union. We do not contest this requirement. We support it for federal service, just as we support it in private industry labor-management relations.

While the NLRA applies only to private employee unions, the same types of rules invariably govern PEUs. Passed in 1976, California’s Rodda Act allows for exclusive representation and it’s up to each school district and its local union whether or not they want to roll that way. However, it is clearly in the best interest of the union to be the only representative for teachers because it then gets to collect dues from every teacher in the district. It’s also easier on school boards as they only have to deal with one bargaining entity. So it is really a corrupt bargain; there is no law foisting exclusivity on any teachers union in the state.

So exclusive representation is good for the unions and simplifies life for the school boards, but very bad for teachers who want nothing to do with organized labor. It is also important to keep in mind that the Friedrichs case is not an attempt to “bust unions.” This silly mantra is a diversionary tactic; the case in no way suggests a desire to do away with unions. So when organized labor besieges us with histrionics about “the promise of America,” the dying middle class, free riders etc., please remind them (with a nod to President Obama), “If you like your union, you can keep your union.” In this case, it’s the truth.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

Jejune in April

NEA rolls out its plan for what to do in case its worst nightmare – worker freedom – comes to pass.

Last July, the California Teachers Association released “Not if, but when: Living in a world without Fair Share,” a 23-page PowerPoint presentation unearthed by Mike Antonucci. The document revealed that teacher union honchos in the Golden State are expecting that pending litigation may very well put an end to mandatory union dues, and they’re exhorting local labor leaders to rise to the challenge.

Just last week, Antonucci “declassified” a similar document, this one coming courtesy of CTA’s parent, the National Education Association. Whereas CTA’s dispatch was downright perky – easy-to-read history, timeline and suggestions – its NEA counterpart (actually put together in April of 2014, three months before CTA’s version) is a snooze of Van Winklean proportions. Its 23 pages are packed solid with endless lists, boring bullet points and useless information. Perhaps a warning should have been posted: “Do not read before driving or operating heavy machinery.”

And while the CTA version took a few obligatory swipes at conservatives (what would a union missive be without them?), NEA devoted almost an entire page to its #2 bogeyman – the American Legislative Exchange Council (ALEC). Interestingly, the graphic the union uses for the think-tank includes descriptors like limited government, free markets, and federalism – all of which suggest that ALEC believes in the Constitution. NEA clearly has other ideas on the nation’s governance. (The memorandum’s exclusion of union enemy #1, the Koch Brothers, is inexplicable.)

And then there are the factual errors in the document, perhaps the most glaring of which is in the introduction. It reads,

Fair Share is a commonsense way to protect equity, individual rights, and the pocketbooks of educators. Also known as Agency Fee, Fair Share provisions ensure that all educators contribute to the legally required representation and negotiated benefits provided to them by local associations. Fair Share does not force individuals to join the Association. It simply makes sure that all educators contribute to the negotiated benefits and legally required representation that they all enjoy. (Emphasis added.)

NEA and other unions repeat this lie so often that it’s commonly accepted as fact. But it’s not truthful at all, and the unions know it. As Heritage Foundation senior policy analyst James Sherk points out,

The National Labor Relations Act (NLRA) allows unions that demonstrate majority support to negotiate as exclusive representatives. If they do so they must negotiate fairly on behalf of all employees, including those who do not pay dues. However unions may disavow (or not obtain) exclusive representative status and negotiate only for their members. Nothing in the National Labor Relations Act forces exclusive representation on unwilling unions. (Emphasis added.)

In other words, if unions don’t want to represent non-members they are not required to do so. But they invariably insist on providing benefits to all.

The document contains another lie that NEA and other unions like to perpetuate.

The poorest states in the US are those in which unions don’t have many members or much power. These are called “Right to Work” states, but what that phrase really means is that workers there have no rights and work for less.

But as I have written before, right-to-work states are actually much stronger economically than their forced-dues counterparts. The Illinois Policy Institute’s Paul Kersey reports that:

  • From 2002 to 2012, states with right-to-work laws saw a 7.2 percent increase in payroll employment, compared to a 2 percent increase in other states.
  • As of September 2014, right-to-work states had an average unemployment rate of 5.5 percent, compared to 6 percent in non-right-to-work states.
  • From 2000 to 2010, right-to-work states saw population growth that was twice as fast as that in other states (13.6 percent compared to 7.3 percent).
  • Median wages in right-to-work states appear $4,345 lower than in other states. However, once you take into account cost of living and local taxes, right-to-work state wages rise. In fact, the cost of living is 16.6 percent higher in states without right-to-work laws.
  • Right-to-work economies grew by 62 percent from 2002 to 2012, compared to just 46.5 percent growth in other states.

With its professed dedication to teachers’ best interests, there is also an omission that needs to be addressed. Typically when teachers join a union, they are forced to join three – the local, a national union and its state affiliate. However, there are teachers who enjoy the perks they get from their local but feel no need to send most of their dues money to the state and national entities which suck up about 80 percent (over $800) of a teacher’s total dues payment. If your politics are on the right, or you are a centrist or maybe not political at all, do you really want hundreds of your dues-dollars going to the leftist causes that the state and national unions regularly support? It is possible to form a “local only” teachers union, but only after engaging a lawyer and going through a laborious disaffiliation process. And NEA, far more interested in its bottom line than its teachers, has no mention of this option in its document.

Beyond the errors of omission and commission, there is not much else to comment on. It can be summed up as, “Tell people why they should join the union.” “Go after the younger workers.” “Engage non-members.” “Develop an app.” Tired tactics. Fallacious arguments. Same old, same old.

Zzzzzzzzz.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

Farmworkers and the New Civil Rights Struggle – Decertification of Bad Unions

Summary: It’s a basic civil right: the ability of union members to get rid of a union if it no longer serves its members effectively. Today, that right is being denied to a group of farmworkers in California by officials who refuse to count the votes the workers cast in a decertification election. That denial of rights shows just how little respect the United Farm Workers, founded by Cesar Chavez, gives to its members.

On August 26, 2014, more than 1,000 angry farmworkers stormed a state labor board office in Visalia, California. For more than three hours, the mostly Latino, mostly immigrant crowd chanted for justice, carrying signs and wearing brightly colored shirts that advertised their cause.

Protests are nothing new in labor relations, of course. But these workers were not union members agitating for higher wages or better conditions. These workers, employed by the Fresno-based Gerawan Farming, Inc., were angrily denouncing California labor authorities for forcing them into a union, the United Farm Workers (UFW). They were protesting collusion between labor bosses and government bureaucrats to impose collective bargaining contracts on them against their will.

They were voicing their rejection of the union. They already had high wages and excellent working conditions, they said. They didn’t need the union, and wanted to dissociate themselves from the union.

They voted on decertification in November 2013. As of this writing, the votes have yet to be counted.

The Gerawan workers stand at the forefront of a new and growing front in the broad struggle to advance civil liberties in the United States: Workers fighting for the right not to join a union.

The rise of the United Farm Workers

The National Labor Relations Act (NLRA) of 1936 established the labor regime that is in effect in the United States to this day. The NLRA gave unions sweeping organizational powers while simultaneously placing severe restrictions on how employers may respond to unionization drives.

With the NLRA, the federal government granted unions effective monopolies on labor. But the agriculture sector was excluded (for a variety of reasons, including, some speculate, to placate Southern politicians dependent on the support of cotton and tobacco manufacturers). The exclusion of the agriculture sector created a vacuum in labor law. Into this vacuum stepped Cesar Chavez.

Chavez, born in Yuma, Arizona, in 1927, began his career as a “community organizer” when he was hired to work for the Community Service Organization (CSO), a group formed by prominent activist Fred Ross. Ross had run labor camps for migrants, including one that, prior to his tenure, had served as an inspiration for The Grapes of Wrath.
Ross was a disciple of Saul Alinsky, the father of left-wing “community organizing.” In 1947, he was hired by Alinsky to organize Mexican-Americans in Los Angeles. Ross formed the CSO to help Latino immigrants navigate the ins and outs of daily life in 1950s California.

Chavez was hired by CSO in 1952. In the early 1960s, he and a small band formed the National Farm Workers Association (NFWA)—part community organizing network, part (unofficial) labor union aimed at mobilizing California’s large fieldworker population, the vast majority of whom, then as now, originate from areas south of the U.S-Mexican border.

In 1965, a rival group of largely Filipino laborers, the Agricultural Workers Organizing Committee (AWOC), walked off the job in grape fields in Delano, California. The NFWA, led by Chavez, Dolores Huerta, and Gilbert Padilla, voted to join the strike, which gained national attention as “The Cause” (la causa!). In 1966 Chavez made a renowned trek from Delano to the state capital, Sacramento, and the NFWA and AWOC merged and became the United Farm Workers Organizing Committee (UFWOC).

In 1968, Chavez began a hunger strike at the union headquarters in Delano to bring attention to la causa. The move generated support from Robert F. Kennedy, who was running for president. In return for his support, Chavez’s union formally endorsed Kennedy and provided his campaign with crucial support in the run-up to the critical California primary, which Kennedy won. (Kennedy was assassinated just after his victory speech.)

In a multi-year strike against the grape growers, Chavez proved a master at using public-relations tactics to build support for a union effort. An estimated 14 million Americans supported a boycott in sympathy with Chavez and his union, refraining from purchasing California grapes. It worked: In 1969, Delano grape growers caved and signed contracts with UFOC. In 1972, UFOC was subsumed into the AFL-CIO to become the United Farm Workers (UFW) Union.

By 1972, the boycott tactic was Standard Operating Procedure. Time magazine noted that year:

“At the Democratic National Convention in July, the phrase “boycott lettuce” became almost a password. It fell fervently from the lips of any number of heads of delegations, and it was finally consummated as a cause when Ted Kennedy, at the peak of convention excitement, began his speech: “Greetings, fellow lettuce boycotters!”
The idea was to spark a boycott of iceberg lettuce . . . in support of Cesar Chavez’s two-year-old strike against growers in California.”

The UFW faced violent competition from the Teamsters Union, which was organizing workers from the lettuce fields of Salinas. A history of the UFW at PBS.org describes the ugly inter-union conflict:

“The AFL-CIO pledged full support and sent millions of dollars in aid. The Teamsters responded with crews of bikers and toughs hired in Los Angeles to intimidate and attack strikers. Thousands of farmworkers and supporters were jailed, and finally, two UFW strikers were killed on the picket line.”

The UFW faced other hurdles in its struggle to dominate California labor. Though the union won many elections in the 1970s and 1980s, union leaders were unable to capitalize on those victories to produce a sufficient numbers of contracts. The California Agricultural Labor Relations Act, passed in 1975, diminished the union’s ability to use boycotts in its organizing drives, the very tool that proved so potent against the Delano grape growers.

In addition, throughout the 1980s and into the 1990s, the UFW was continually plagued with intra-union power struggles as Chavez and other leaders vied for control and debated the future and focus of their organization.

Sometime during the night of April 22-23, 1993, Cesar Chavez died, apparently in his sleep, near Yuma, Arizona, not far from where he had been born 66 years earlier. Union legend has it that the many pressures of forming and running the UFW, including many hunger strikes, contributed to his death.

Upon Chavez’s death, Arturo S. Rodriguez became the UFW’s second president. He remains UFW president to this day.

The Chavez legacy

In California, Chavez has taken on the halo of a sanctified hero, like his idol Gandhi, with countless streets, public places, and charitable organizations bearing his name. The union eagerly exploits and promotes his reputation for tireless and selfless work on behalf of California’s migrant farm community.

But in the years since his death, numerous researchers have peeked behind the UFW curtain and uncovered a different view of Cesar Chavez. The profile of Chavez that emerges from these alternate narratives is that of a power-hungry narcissist who painstakingly built a cult of personality around himself and called it a union.

Chavez’s often-open contempt for the rank-and-file farmworkers has proven especially shocking to many former supporters and sympathizers.

Michael D. Yates, who worked for the UFW in 1977, wrote in the Marxist publication Monthly Review:

“Chavez used every dirty trick in the book to defeat the worker leaders. He slandered them. He sent goons, including his criminal cousin, Manuel Chavez, to threaten and beat them. The union may even have engineered the automobile accident of farm worker leader Cleofas Guzman that left him paralyzed.”

In his often despairing review of Miriam Pawel’s book The Union of Their Dreams: Power, Hope, and Struggle in Cesar Chavez’s Farm Worker Movement, Yates admits that Pawel had uncovered

“plenty of evidence of Chavez’s disdain, distrust, even dislike of the rank-and-file for whom he had presumably built his movement. In many unions, talented workers get elected to local union office, and from there, they can actively participate in national union affairs, and sometimes get elected or appointed to higher union office.”

But, Yates notes,

“This was impossible in the UFW, because there were never any local unions. Chavez made all appointments to the staff and tightly controlled those who sat on the UFW board . . . It prevented the formation of power bases that might challenge Chavez.”

Whatever the quirks of Chavez’s personality, this is the question that ultimately matters, especially to farm workers in the fields today who are considering UFW membership: Does the UFW really represent California field labor?
The answer is no.

Shrinking membership

Hundreds of thousands of laborers toil in the Golden State’s abundant fields—450,000 workers, according to a 2006 estimate. The union counts a paltry 10,000 as members, just over two percent.

This low percentage is surprising given the UFW’s decades-long history of intense organizing and its often-outsized political influence. It is especially surprising given the relatively light competition the UFW has faced in targeting California’s vast agriculture sector. In 2012, Golden State farms took in $42.6 billion, accounting for 11.3 percent of America’s total cash farm receipts, according to the California Department of Food and Agriculture. In fact, more than half of the fruits, vegetables, and nuts grown in the U.S. come from California.

But the vast majority of the state’s 8,500 farms and ranches do not have collective bargaining agreements with the UFW. In fact, as of 2006, only an estimated 20-30 farms had contracts with the union, with some of those farms outside California.

UFW membership has plummeted. It was an estimated 50,000-80,000 in the 1970s (according to PBS; the union is notoriously tight-lipped in these matters). It is roughly 10,000 today. To stanch the bleeding, union officials have turned to gimmicks for raising money, such as offering annual “memberships” for a fee of $40 and providing workers with laminated membership cards that handily double as ID cards.

The union has also openly and actively pursued a variety of non-representational activities, such as instituting charitable organizations for housing and other basic needs. For example, over the course of 15 years, the National Farm Workers Service Center (NFSC) raised $230 million for low-income housing across three states. According to a Los Angeles Times report, though, few actual farmworkers were beneficiaries of that housing, which ironically (and infuriatingly, to many union supporters) was built largely with non-union labor. Paul Chavez, son of Cesar and president of the Cesar Chavez Foundation, is described as giving a half-hearted defense of this use of non-union labor:

“Chavez said that only by paying lower, nonunion wages can he hope to meet the Service Center’s ambitious goal of housing 100,000 people in the next decade.”

It’s a case of a union leaders admitting that union labor is unaffordable.

UFW’s tangled web of finances

Union president Arturo Rodriguez received $94,129 in pay and benefits in 2013, while UFW regional director Armando Elenes made $107,994. The union claims to have paid out some significant sums in 2013 to certain individuals as “cash donations,” including a $75,232 gift to one Maria Thaddeus of Fort Collins, Colorado, whose address is listed as “missing.” Who Ms. Thaddeus is, and what she did to deserve such a large donation from the United Farm Workers, is unclear. (An e-mail to the union’s executive office requesting information about these donations was unanswered at press time.)

Like most unions, the UFW has been heavily engaged in political activity. But the nature of the UFW’s political activity is the reverse of most unions. The Los Angeles Times noted:

“Most unions contribute money to candidates; the UFW collects it instead. Most unions give money to their political action committees; the United Farm Workers PAC pays the union.”

According to its most recent filing with the U.S. Department of Labor, the UFW possessed net assets of approximately $2.62 million in 2013. That year, the union took in roughly $7.12 million, including $3.74 million in agency fees and dues (though how that amount is split between the two categories is unclear).
UFW membership saw a steady decline from the 1980 until the first decade of the 21st century. Then the union’s ranks held steady at around 5,000 members from 2002 to 2012.

Yet the union’s most recent LM-2 form—a form that is filed each year with the U.S. Department of Labor—claims 10,278 members and 339 “agency fee payers” for a total of 10,617 “members/fee payers.” From 2012 to 2103, therefore, the union claims its membership shot up from 4,443 to over 10,000.

The UFW v. Silvia Lopez

What explains this sudden spike in membership in one year? It’s possible that the union decided to count workers from Fresno-based Gerawan Farming, Inc. on its rolls. If so, that would be highly controversial, because those workers are currently engaged in a fierce and protracted legal effort to extricate themselves from association with the union.

The UFW won a representation election at Gerawan in 1990. Gerawan is a family-owned operation that has been harvesting in California’s Central Valley for more than six decades. One of the nation’s largest tree fruit producers, it employs up to 5,000 workers each year (not necessarily all at once; the daily workforce varies depending on the season).

Management contested that election, and it wasn’t until 1992 that state labor authorities certified the results. Union bosses and Gerawan had one bargaining session, but agreed on no contract.

And then the UFW vanished. As CNBC reported, “The UFW never came back, there was never any contract, and Gerawan Farming went back to business.” For almost 20 years nothing was heard from the union, and no dues were collected from Gerawan’s employees. Meanwhile, older workers retired or moved on, replaced by waves of younger workers, many of whom return season after season with their family members, multiple generations working alongside one another.

Then suddenly, in October 2012, owner Dan Gerawan received a letter from the UFW, saying it was ready to negotiate a new contract. According to CNBC’s Jane Wells:

“Unlike the early ’90s, the UFW is now able to take advantage of newer laws in California that force both sides to accept a contract through mandated arbitration by the California Agricultural Labor Relations Board [ALRB]. Gerawan said once arbitration began, the union ‘proposed wage increases that were ridiculous.’”

Silvia Lopez, a single mother and 15-year veteran of the Gerawan fields, was shocked when she was told that she had been working at a unionized company, and appalled that she would be forced to pay three percent of her wages in union dues. Lopez was adamant that she did not want the UFW at Gerawan. “The company has always been very fair,” she said. “They have never robbed the sweat of their workers, they’ve never robbed even a minute of our time. Our checks always have been paid.”

In fact, Gerawan was already paying wages well above the industry average. With the imposition of three percent union dues, what UFW leaders were actually demanding was that the workers labor for less money. That was a position that won them no favors among the Gerawan crew.

Still, since the UFW had previously won a representation election, and since California is not a Right to Work state (a state in which the law allows workers to opt out of union dues and/or membership), the only way for Lopez to get out from under the thumb of the union was decertification. So that’s what she set out to achieve.

In October 2013, Lopez gathered and turned in between 2,700 and 2,800 signatures from co-workers in a petition to decertify to the state labor board, the ALRB. The board, however, refused the signatures, claiming too many were of questionable legitimacy. ALRB regional director Silas Shawver claimed, “There were some serious problems with signatures submitted that appeared to be fraudulent.”

Lopez went to work again collecting signatures and returned within days with a new petition bearing 3,000 names. The board, notorious for its pro-union sympathies, balked. Sources have told the Center for Worker Freedom that Gov. Jerry Brown intervened personally and pressured the board into allowing the Gerawan workers a decertification election. (Brown created the ALRB in the 1970s during his first stint as governor.)

Waiting… waiting…

Voting took place on November 5, 2013. Those ballots have never been counted and, today, are locked up in an ALRB safe, likely at the board’s regional headquarters in Visalia.

The board claims the votes cannot be counted until the various unfair labor practice charges lobbed at Gerawan by the UFW can be investigated. Conveniently for the union, the board also claims to have run out of funds to investigate. In the meantime, the board and the union want to force a contract on the Gerawan workers through the states’ mandatory arbitration process.

The workers are challenging the ALRB’s decision not to count their votes. Last February, they filed suit against the ALRB (specifically, against its board members and regional appointees) for violating their civil liberties. In July, a federal judge assessing the merits of the case ruled the suit could move forward. Lopez celebrated the decision in a statement released through her attorney:

“I am happy that I will get to face the members of the ALRB and regional director at a trial. My co-workers’ and my rights have been denied for more than 280 days. It’s not right. I’m glad that the judge saw that I have a real case and will let part of my lawsuit move forward. All the farmworkers want is to have our votes counted. We will not stop fighting to have our voices heard and our rights protected.”

Certainly the actions of the board constitute a gross violation of any number of Constitutional protections. The 14th Amendment promises that no state shall “deprive any person of life, liberty, or property.” By forcing workers into a union contract that will extract three percent of their wages against their will, the state of California is undeniably depriving these workers of their property.

Then there is the First Amendment, which prohibits abridgements of freedom of speech and freedom of assembly. The idea that government could simply refuse to count the votes from an election, and force people to be members of an organization against their will, would doubtless have horrified the Framers of the U.S. Constitution.

The ALRB has continued to slander the workers and Gerawan management with charges that the company is forcing/intimidating its workers into resisting the union. Those charges infuriate Silvia Lopez. On August 26, she and about a thousand of her co-workers loaded onto buses after working a full day in the fields and descended en masse on the ALRB regional office in Visalia. They held signs reading “Count our Votes!” and they sported shirts emblazoned with the text of the First Amendment and the image of Lady Liberty.

The workers chanted “Don’t take our money!” They gave speeches, and waved an American flag for more than three hours. (The Center for Worker Freedom provided logistical support, including coordinating with local authorities to ensure a safe and peaceful demonstration.) Ms. Lopez presented an ALRB official with a petition bearing nearly 1,000 signatures from Gerawan workers stating that they had not been intimidated or coerced into anti-union activity. The protest drew local, state, and international media coverage, bringing the ALRB and its abuses to the attention of the public.

The protests reverberated in the state capital, thanks in part to a Center for Worker Freedom advertising campaign in Sacramento. Throughout September, CFW ran a series of more than a dozen digital and print billboards addressed to Gov. Jerry Brown, urging him to rein in the agency that he created.

One message that loomed over Sacramento freeways showed an infant and read “Dear Governor Brown: Take Responsibility for Your Baby, Make the ALRB Count the Votes at Gerawan.” Another showed a picture of Lopez with red tape over her mouth labeled “ALRB” and read: “Freedom of Speech Includes Fresno Farm Workers.”

On September 28, Jerry Brown quietly vetoed the union-backed Senate Bill 25, which would essentially have done to every farmworker in the state what is being done to the Gerawan workers in Fresno. It was widely believed that Brown would sign the bill. The fact that he did not, and that he issued a brief statement that night saying that labor election disputes “should be dealt with so the process is balanced and fair,” is perhaps an encouraging sign that the Governor is becoming increasingly troubled by the rogue agency he created four decades ago.

On the ALRB payroll

On September 29, the two parties in the dispute, the UFW/ALRB on one side and the workers/Gerawan on the other, met before an administrative judge in Fresno to plead their respective cases. The hearing was scheduled to continue for quite some time, possibly through January, and was expected to bring forth dozens of witnesses, including Lopez.

A major problem arose: The judge charged with mediating this dispute, Mark Soble, is on the payroll of one of the parties of the dispute. The Center for Worker Freedom reported data gathered and published by Transparent California showing that Soble received over $142,000 in pay and benefits from the ALRB in 2013. Since 2011, he has been paid over $357,000 by the agency, calling into doubt his ability to act as a fair and impartial arbiter in the matter.

In fact, Soble’s sympathies were made apparent on the opening day of the hearing, as he angrily waved a press release from the Center for Worker Freedom advertising a press conference. The press conference had been scheduled for the following Wednesday, across the hall from the hearings at the Radisson Hotel in Fresno. Numerous public officials were invited, including Assemblyman Jim Patterson and Fresno city council members, as well as workers, including Ms. Lopez. The aim was to help give the workers and their supporters a platform on which to present their plight to the public.

In the hearing’s opening moments that Monday, Soble demanded to know if Lopez was behind the planned press conference. Farmworkers present at the hearing said later that they felt intimidated by the Judge’s comments, and feared they would face legal reprisal were they to speak at the press conference. Nevertheless, the press conference took place without incident on October 1, when Ms. Lopez excused herself from the hearing and addressed more than 200 workers, reporters, and elected officials. (The entire press conference can be viewed at http://workerfreedom.org/ca-farmworkers-motivate-and-inspire-elected-officials.)

The judge, like the union and the board before him, underestimated Ms. Lopez, who refuses to surrender the rights granted her by the United States Constitution.

Conclusion

For the UFW, the attempt to take Gerawan by force has been a PR disaster. But the union has had little choice. The organization began and run by Cesar Chavez, and run into the ground by his successors and family members, is facing an existential crisis. Bleeding cash and members, the union needs Gerawan, regardless of the rights or principles that must be destroyed in the process.

Today, the union is desperate for help from other unions, but sources have told CWF that the UFW is being shut out. It has long had a reputation in organized labor as a group that is quick to ask for help, but slow to give it. “They always have their hand out,” noted an insider. Yates, the former UFW staffer who wrote about this union for the Monthly Review, noted, “In a labor movement notorious for corruption and shortchanging the membership, the United Farm Workers has secured a place on the union wall of infamy.”

The irony is that many of the Gerawan workers came to America for more freedom, not less, and for more economic opportunity, not less. In many regions of Mexico and Central and South America, powerful cartels carve up economies with the aid of public officials at the expense of workers and businesses, who get shaken down and shut out. Many of these workers believed it would be different—better—in America. They were wrong.

Still, the Gerawan workers, and others across the country who resist forced unionization, have a tremendous opportunity to advance the cause of civil liberty. The right to work—that is, to work without being forced to pay dues to an unnecessary, predatory third party—is the new civil rights struggle.

California Assemblyman Jim Patterson, who has been championing Ms. Lopez’s cause for more than a year, told CWF: “Silvia and the hundreds of farm workers who are fighting this battle to have their votes counted are the civil rights leaders of our time…. They will not be stopped or silenced by the ALRB or anyone and soon 3,000 voices will become 30,000 voices all with the same message, ‘the UFW doesn’t represent us.’”

For Democratic Party politicians and left-wing activists, there is a tremendous opportunity in the Gerawan mess—a chance to prove that they have the courage of their convictions. Liberals would howl in outrage if workers were forced by Republican officials into dues-paying membership in the National Rifle Association, and rightly so. If liberals really want to take the side of workers, they will be consistent, and demand, in this case, that the workers’ votes be counted.

Unions, like any other organization, should attract members willingly, by persuasion, by demonstrating the value of their services. When they force people into associating with them, it exposes the hollowness of their promises and the fact that opposition to freedom is at the core of their ideology. It exposes just how little respect they have for their members and for those they would have as members.

About the Author:  Matt Patterson is executive director of the Center for Worker Freedom, a special project of Americans for Tax Reform. CWF is “dedicated to educating the public about the cost and consequences of unionization.” This article originally appeared in the November 2014 issue of Labor Watch and is republished here with permission.

Union Power in the States: Lost Pay, More Taxpayer Debt

Summary: New studies on the harms of American labor laws paint a grim picture. The laws drag down economic growth, suppress workers’ wages, and cause government debts to soar.

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Could your family use an additional $13,100 a year? If you live in a forced-unionism state, that’s what the lack of a Right to Work law may be costing you.

At the same time, you’re harmed by the federal mandate that gives unions the power of monopoly (a.k.a. “collective”) bargaining. That federal mandate, it’s estimated, costs workers about 15 percent in forgone income.

In addition, unionization of government employees has helped add many billions of dollars to the unfunded liabilities of public employees’ pensions—a debt for which taxpayers will be held responsible.

Three new studies from the Competitive Enterprise Institute (CEI), the Washington, D.C. think tank where I am a senior fellow, examine these harmful consequences of unionization and of laws that push unionization. The purpose of the studies is to identify the problems caused by union power in states across America; express the problems in numbers; rank the states based on the problems’ severity; and point the way toward solutions by comparing states to see what policies work.

1. Monopoly (“collective”) bargaining

Labor law history makes clear that a key factor in union power is monopoly bargaining, also known as collective bargaining. Monopoly bargaining is an element in the National Labor Relations Act (NLRA), also known as the Wagner Act after its lead sponsor in 1935, U.S. Sen. Robert F. Wagner (D-N.Y.). The Wagner Act’s Section 7 provides:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining…”

Collective bargaining becomes monopoly bargaining when a union acts as the exclusive collective bargaining representative for all members of a bargaining unit (a group of workers who are said to share an economic interest, such as all the assembly-line workers at a factory). If one is not a member of the union or disagrees with the union’s bargaining position, one is left without a voice in bargaining. Workers who disagree with the union have no recourse, as they have no way to bargain individually with the employer regarding their own employment conditions and wages.

The intellectual groundwork for the NLRA, set during the first half of the 20th Century, was known as the High-Wage Doctrine. According to this doctrine, higher wage rates translate into greater purchasing power and a more prosperous economy, and a business downturn cannot be reversed by lowering wage rates.

The High-Wage Doctrine enjoyed wide support. Several prominent business leaders, including Henry Ford, Thomas Edison, Edward Filene, and Gerald Swope supported the idea, as did major political figures, including Herbert Hoover when he served as President Harding’s Secretary of Commerce.

When the stock market crashed in October 1929, then-President Hoover convened a series of conferences at the White House with prominent business leaders. He sought to persuade them to set an example for the nation by refraining from reducing wage rates. In late November 1929, following one of Hoover’s high-wage conferences, the New York Times cited a White House press release:

“The President was authorized by the employers present at this morning’s conference to state on their individual behalf that they will not initiate any movement for wage reductions, and it was their strong recommendation that this attitude should be pursued by the society as a whole.”

Hoover’s employment conferences appeared to succeed—at first. Between the fourth quarters of 1929 and 1930, real wage rates in the United States rose by more than 5 percent (despite an average labor productivity decline of over 5 percent during that period). Rising real wages largely resulted from stable money wage levels and falling prices. But Hoover’s apparent success was short lived, as this inflation-adjusted increase in the cost of labor led to a near-doubling of the unemployment rate over that period, from 5.7 to 10.7 percent.

If the High-Wage Doctrine were valid, the United States would have been enjoying a roaring prosperity. The reality was quite different, as the unemployment rate climbed above 18 percent in 1931.

High wages are good, if driven by higher productivity. But raising demand does not create supply all by itself. One cannot improve aggregate living standards via high wages unless sufficient productivity exists to support the increased demand. Otherwise, the result is either inflation or unemployment.

Origins of monopoly bargaining

The National Labor Relations Act’s monopoly bargaining provision saw its origins in a predecessor law, the National Industrial Recovery Act (NIRA), whose Section 7 was essentially revived in Section 7 of the NLRA.

The NIRA was enacted during the first session of the 73rd Congress on June 16, 1933. What a bill it was! Its very first sentence declared a national emergency:

A national emergency productive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people, is hereby declared to exist.

A declaration of national emergency is often a prelude to the curtailment of individual rights. The NIRA was no exception. It included a long litany of measures “to provide for the general welfare by promoting the organization of industry” (“organization” meaning “unionization”), “to induce the united action of labor and management under adequate governmental sanctions and supervision,” and “to improve standards of labor.”

The NIRA gave the President the authority to establish whatever agencies he wanted, staffed by whomever he wanted, to achieve the broadly stated purposes of the Act. It gave the President power to establish industrial codes (regulations for all transactions). And it allowed the President to investigate businesses at will and to require whatever paperwork he wanted from businesses.

The NIRA’s Section 7 imposed collective bargaining. It also capped work hours, instituted a “minimum wage,” and set conditions for employment, all approved or prescribed by the President. All of these concepts were radical at the time.

The two-year authorization of the act was due to expire in June of 1935, but just before expiration, on May 27, 1935, the United States Supreme Court ruled the act unconstitutional in Schechter Poultry Corp v. United States. By July 1935, however, a replacement for the NIRA was sent to President Roosevelt. Echoing Section 7 of the NIRA, it established a formal mechanism for certifying specific labor unions as monopoly bargaining agents for certain groups of workers and for requiring employers to negotiate with those unions. Monopoly bargaining was thus resurrected in another Section 7 which operates today.

To protect his New Deal policies, FDR went after the Supreme Court itself. On February 5, 1937, Roosevelt unveiled his plan to pack the United States Supreme Court with additional justices of his own appointment. The President spoke about his court-packing plan in his Fireside Chat of March 9, 1937, in which he explained how court-packing would give the President the additional power he desired:

“In 1933 you and I knew that we must never let our economic system get completely out of joint again-that we could not afford to take the risk of another Great Depression. We also became convinced that the only way to avoid a repetition of those dark days was to have a government with power to prevent and to cure the abuses and the inequalities which had thrown that system out of joint.”

Three weeks later, the U.S. Supreme Court ended its 40 years of strong support for the liberty of contract (a period known to Constitutionalists as the Lochner Era). West Coast Hotel Co. v. Parrish was the first case upholding a state minimum wage law. Immediately thereafter, in April 1937, the Supreme Court, in National Labor Relations Board v. Jones & Laughlin Steel Co., held the National Labor Relations Act (Wagner Act) to be constitutional.

With that decision, labor policy in the United States shifted toward active federal encouragement of unionization and toward the legal certification of unions’ status as monopoly bargaining agents.

Monopoly bargaining hurts a state’s economy

In the CEI study “The Unintended Consequences of Collective Bargaining,” authors Lowell Gallaway and Jonathan Robe analyze and rank the effect of unionization on economic growth on a state-by-state basis, and calculate the “deadweight loss” resulting from unionization.

By raising the cost of labor, unions decrease the number of job opportunities in unionized industries. That, in turn, increases the supply of labor in the nonunion sector, driving down wages in those industries. The effect of this situation is to increase the natural rate of unemployment, thus imposing a deadweight loss of economic output on the economy. Deadweight loss in this context means that unionization artificially increases the price of a factor of production—labor—above the price that would be established in a free and competitive marketplace. The artificially high cost of labor then lowers economic output, known as GDP (Gross Domestic Product).

The presence of deadweight losses that arises from labor union activity can be shown by a formulation devised by labor economist Albert Rees. Rees demonstrated the consequences of union wage-raising initiatives on employment in both the union and nonunion sectors of the labor force.

The Rees formulation can be used to calculate the value of these deadweight losses from unionization if three factors are known: (1) union density (the percentage of employees who are unionized), (2) the wage premiums associated with the presence of unions, and (3) the general elasticity of demand for labor (how much the quantity of labor demanded by employers changes because of a change in the price of labor). Using this and other estimates, the CEI study calculates the deadweight losses for six different years during the period 1967 through 2000.

Over 50 years, the cumulative reduction in worker wages would be about 15 percent. Because wages are only a fraction, though a large one, of total output or GDP, the deadweight losses from unionization in GDP are smaller, but over a long period of time those small annual effects add up to produce a substantial cumulative loss of GDP—as much as 10 to 12 percentage points over a half century. (And the real number may be much worse. The Rees analysis understates the harm because it doesn’t consider the way that lower wages shrink the labor force.)

Different effect in different states

Deadweight loss contributes to significant differences in income among residents of various states. To explore the extent of this phenomenon, Gallaway and Robe’s analysis uses a statistical model to explain the differences in real per capita personal income among states. The unionization rates and five other independent variables are included in the model to account for additional factors that are likely to affect the growth in income: manufacturing, income tax rates, real per capita income in 1964, politics, and college education.

Table 1.  The Effect of Unionization on Per Capital Income by State20140919_CRC-1

The study indicates that every additional percentage point of average unionization from 1967 to 2000 reduced the growth in real per capita personal income by 1.73 percentage points. Knowing this relationship makes it possible to estimate the effect of union-related deadweight losses on the growth in real per capita income in the various states. The above chart, based on that analysis, shows the different effects of collective bargaining on the several states.
Two broad conclusions emerge from this study. First, the presence of labor unions that operate as collective bargaining agents has the potential to seriously inhibit economic growth in the several states and the District of Columbia. This conclusion suggests that the National Labor Relations Act’s provision mandating collective bargaining was rife with (presumably unintended) bad consequences.

Second, the disparity in the relative incidence of unionization of the workforce across the United States leads to widely disparate impacts on the states. Some states, such as Michigan (which only recently enacted a Right to Work law), have suffered large amounts of foregone economic growth, while others, such as South Carolina (which has had a Right to Work law for decades), have been far less affected.

2. Right to Work laws

In December 2012, President Obama made an ultimately futile attempt to thwart Michigan’s proposed Right to Work (RTW) law. Speaking at the Daimler Detroit Diesel plant, the President declared, “These so-called Right to Work laws, they don’t have anything to do with economics. . . . What they’re really talking about is giving you the right to work for less money.”

Contrary to the President’s claim, Right to Work laws have a lot to do with economics. Contrary to the President’s suggestion, Right to Work laws mean better pay for most people. The evidence is compelling that Right to Work laws are good for both the American worker and the financial health of states across the country. Economic growth in a state is significantly related to the presence of a Right to Work law.

Short of repealing the monopoly bargaining contained in the federal Wagner Act, the best way to repeal forced unionism is to enact Right to Work laws in individual states. Here, history provides a guide.

The onerous effects of the 1935 National Labor Relations Act continued unabated for over a decade. Then, in 1947, the Taft-Hartley Act became law, providing a modicum of relief by amending the National Labor Relations Act to read:
Nothing in this … shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

From that point forward, states, if they chose, could pass Right to Work laws. Currently, 24 states have such laws, which give workers the right not to join unions as a condition of employment and which prohibit the coercive collection of dues from workers who choose not to join. In the CEI study “An Interstate Analysis of Right-to-Work Laws,” authors Richard Vedder and Jonathan Robe analyze the effect of Right to Work laws on state economies, and rank states’ loss of per capita income from not having such a law.

Table 2. Estimated Per Capita Income Loss Associated with NOT
Having a Right to Work Law, 30 non-RTW States

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The top 10 states most harmed by their failure to adopt Right to Work laws are Alaska,
Connecticut, California, New Jersey, Illinois, Hawaii, Maryland, Wisconsin, New York,
and Michigan. The study analyzes the period 1977-2012. Idaho, Oklahoma, Michigan, and
Indiana enacted their Right to Work laws in 1985-86, 2001, 2012, and 
2012, respectively.
Over the study period, these states faced full or partial 
economic losses associated with
the absence of RTW. 
Indiana’s law is currently making its way through the courts.

People have been migrating in large numbers from non-RTW states to RTW ones. The evidence suggests that economic growth is greater in RTW states, as indicated by some key factors:

►Attracting investment. Right to Work laws tend to lower the presence of unions, reduce the adversarial relationship between workers and employers, and make investment more attractive. As one would expect, these factors have a positive impact on measures of economic performance including job creation and, ultimately, on the general standard of living. Over the study period, employment grew 71 percent nationwide, with a big difference between RTW and non-RTW states: Employment grew by only 50 percent in non-RTW states, compared to 105 percent in RTW states.

► Causing the migration of labor. Conversely, lack of a RTW law may be a factor in the out-migration of labor from a state. From 2000 to 2009, 4.95 million people migrated from non-RTW states to RTW states. Legislation favoring unionization raises labor costs and makes employers less likely to invest. This, in turn, reduces the capital resources available to support workers, lowers both productivity growth and wealth creation, and makes people less well off than they would be in a fully free labor market.

► Pushing incomes higher. Incomes rise following the passage of RTW laws, even after adjusting for the substantial population growth encouraged by those laws. The evidence suggests that if non-RTW states had adopted RTW laws 35 years ago or so, income levels in those states would be on the order of $3,000 per person higher today, with the impact varying somewhat from state to state.

The bottom line:

The median loss of income is $3,278 per capita, which translates to over $13,100 for a family of four. The total estimated loss of income in 2012 from the lack of RTW laws in a majority of U.S. states was an extraordinary $647.8 billion.

Thus, when a state refuses to enact a Right to Work law, that choice doesn’t just hurt workers who are forced to join unions or make payments to unions against their will. That choice hurts everyone.

*   *   *

Aloysius Hogan is a senior fellow at the Competitive Enterprise Institute, a free-market think tank in Washington, D.C. This article originally appeared in the September 2014 issue of “Labor Watch,” published by the Capital Research Center, and appears here with permission.

12 Things You Need To Know About Government Unions

1. Even pro-union politicians used to think public sector unionism was too radical.

Long after the pro-union monopoly National Labor Relations Act (NLRA) was adopted in 1935, even strong supporters of this statute rejected the appropriateness of attempting anything analogous in federal, state, or local government.

For example, in 1937, President Franklin D. Roosevelt, who just two years earlier had publicly endorsed and signed the NLRA, wrote a letter to a government union official explaining it is “impossible for administrative officials to represent fully or bind the employer” in dealings with “Government employee organizations” because “the employer is the whole people . . . .”

2. Politicians later empowered private groups to tax government employees.

In the late 1950s and early 1960s, politicians like Robert F. Wagner Jr (New York City mayor and son of the Senate sponsor of the NLRA), Gaylord Nelson (Wisconsin governor), and finally President John F. Kennedy opted to bring monopoly unionism to the public sector.

Wagner, Nelson, and Kennedy all sought to strike a balance by resisting the wholesale imposition of NLRA-style unionism on the public sector. Case in point: Neither the executive order Wagner finally got around to issuing in 1958, nor the statute signed by Nelson in 1959, nor Kennedy’s 1963 federal executive order authorized Big Labor to extract any forced union dues from public servants who chose not to join.

However, today more than 20 states have laws explicitly authorizing forced financial support for unions for some or all categories of public-sector employees. And the vast majority of unionized government workers in the United States reside in these Big Labor-dominated states.

3. Government union bosses’ forced dues powers largely based on a false premise.

It was in 1977’s Abood v. Detroit Board of Ed that the high court originally sanctioned the “undeniably unusual” privilege for government union officials to force public employees, including nonmembers, into paying union dues and fees in jurisdictions where union officials are legally empowered to represent all front-line employees in a workplace.

Justice Potter Stewart, while writing for a six-justice majority, theorized that if union officials claim to be the exclusive representative of all employees in a bargaining unit, they must also have the option to force unwilling workers to pay union dues or fees. Otherwise, he said, such workers would get a so-called “free ride” on the “benefits” of the union’s bargaining and contract administration.

4. Federal courts have long admitted forced dues for government employees is constitutionally problematic.

Federal courts have repeatedly admitted that, to a greater extent even than government-authorized forced union dues in the private sector, compulsory union dues or fee payments to government unions (often euphemistically referred to as the “agency shop”) are constitutionally problematic.

Justice Antonin Scalia was particularly blunt in his opinion for a unanimous Supreme Court seven years ago in Davenport v. Washington Education Association. Scalia observed that, while the judiciary has tolerated government forced unionism in a series of cases, it has always done so reservedly:

[I]t is undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees. . . . [A]gency-fee cases [do] not balance constitutional rights . . . because unions have no constitutional entitlement to nonmember-employees’ fees.

5. In recent developments, mothers took on a governor and politically-connected union.

In early fall 2009, Pam Harris, a resident of suburban Chicago and mother of a young adult son with severe developmental disabilities, received a form letter from agents of Illinois Gov. Pat Quinn informing her that, as a care provider for her son in Illinois’ Disabilities Program, she now could cast a mail-ballot vote regarding which of two unions would be installed as her monopoly-bargaining agent in her dealings with the state.

On June 29, 2009, Quinn had signed an executive order designating 4,500 individuals who offer in-home care to disabled persons as “public employees,” thus rendering them vulnerable to unwanted union organizing. However, the scheme only designated providers as public employees for the purposes of unionization, leaving the homecare recipients as the employers for all other aspects of the providers’ work.

If the Supreme Court had found the scheme to be constitutionally permissible, the implications would have been enormous. Doctors who accepted Medicare or Medicaid could have been forced by gubernatorial executive order or state legislation to accept a particular private organization as their lobbying agent. Moreover, doctors could have been forced to pay mandatory dues and fees to such an organization.

Similarly, impoverished parents who participate in food stamps could have been forced to join or pay fees to a government designated lobbying agent.

6. Harris and other providers blocked an expanded shakedown.

Over the course of the rigged unionization “election” in late 2009, Harris and other parents pooled their money to print and distribute a flyer countering the Quinn team’s propaganda. The independent-minded providers’ shoestring effort succeeded. Providers ultimately voted two-to-one for “no union.” Nevertheless, Service Employees International Union (SEIU) and American Federation of State, County, and Municipal Employees (AFSCME) union officers continued to press ahead with their efforts to gain monopoly-bargaining privileges over the caregivers in the program.

Meanwhile, an estimated 25,000 Illinois at-home caregivers in a similar, but much larger, Medicaid waiver program were already being forced to pay union dues as a condition of receiving state assistance under a scheme launched by then-Gov. Rod Blagojevich (now imprisoned) and subsequently codified by state legislators in 2003.

In 2010, Harris and seven other home care providers filed suit. In written briefs and oral arguments presented to federal district and appellate courts and, finally, the Supreme Court, National Right to Work Foundation attorneys contended on the plaintiffs’ behalf that, because the state of Illinois was not their common-law employer or their sole employer, the Abood excuse for compelling employee financial support for unions did not apply to them.

7. The Court’s Abood majority acknowledged that forced union dues violate workers’ freedom to associate.

Concerns about the potential inequities resulting from “exclusive” union representation are one plausible reason for abolishing it in public-sector workplaces. But they are no justification for forcing nonmembers to financially support a monopolistic union. And the oral arguments in Harris v. Quinn, the first direct challenge to the constitutionality of government-sector forced union dues since Abood, highlighted one key reason why not.

The Abood majority opinion conceded up front:

To be required to help finance the union as collective-bargaining agent might well be thought . . . to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.
The opinion proceeded to try to square this admission with support for the permissibility of forced financial support for a government union under the First Amendment by simply assuming that all public employees, including union nonmembers, who are subject to union monopoly bargaining benefit thereby.

8. Union lawyers admit public workers may be forced to pay a union to ‘make an argument’ with which they disagree.

During the Harris oral arguments this January 21, SEIU lawyer Paul Smith (who also represented Quinn) could not help but tacitly acknowledge, first of all, that significant numbers of nonmembers are made economically worse off by “exclusive” union representation.

At one point in the oral arguments, Justice Samuel Alito cited the example of a “young employee” who is “not very much concerned at this point about pensions,” but “realizes there’s a certain pot of money, and it’s either going to go for pensions or it’s going to go for salary at the present time.” Alito went on to ask Smith:

So that employee who’s not a member of the union has to pay for the union to bargain with the–the State to achieve something that’s contrary to that person’s interest. But you say that person is a free rider.
Smith’s response: “Yes, your Honor. . . .”

9. A Court majority struck down the scheme, but left government union bosses’ forced dues powers intact.

In his 39-page opinion of the Court, Alito basically concurred with the plaintiffs that Abood should be overruled. But rather than actually overrule it, Alito and the four other justices who joined in his opinion merely refused to allow it “to be extended to those who are not full-fledged public employees . . . .”

In opting not to overturn Abood, the Harris majority may merely have been abiding by the widely (albeit far from universally) accepted rule that “courts should not decide more than the occasion demands.”

However, the Harris opinion strongly suggests that Abood was wrongly decided, calling its “analysis questionable on several grounds.”

10. The Harris dissent matters, too.

Judging by the strenuous effort to shore up Abood in Justice Elena Kagan’s Harris v. Quinn minority opinion, she and her fellow dissenters do not believe it is too late to save the precedent that has protected forced union dues in the government workplace for nearly 40 years.

Kagan’s dissent did not completely ignore the specific issue of forced unionism in Illinois’s Rehabilitation Program that was being challenged in Harris. For example, she insinuated the plaintiffs ought to be grateful for SEIU-boss bargaining, which, she insisted, was responsible for the fact that the “wages” of home-care assistants “have nearly doubled . . . in less than 10 years . . . .”

Not surprisingly, Kagan’s uncritical rehashing of SEIU propaganda left out key facts, including the most important of all: The higher “pay rates” for home caregivers for which union bosses purport to fight may, if achieved, leave patients with less money to cover the other expenses they incur while being treated at home.

In the full-throated defense of Abood to which she devoted the bulk of her dissent, Kagan also insisted that government-imposed restrictions on public employees’ freedom to disassociate from a union should not be subject to “strict scrutiny,” the technical name for a type of judicial review in which a law is upheld only if it advances a “compelling governmental interest” and is “narrowly tailored” for that purpose.

11. The dissent runs contrary to years of federal court precedent.

What Kagan and the other dissenters apparently forgot is that federal courts have already repeatedly ruled that the government as employer does not have wide “constitutional latitude” to limit the First Amendment freedom of public employees to join a labor union. Forty-five years ago this February, a federal court overturned North Carolina’s statutory provisions restricting municipal employees’ right to join aid and assist labor organizations, finding them to be “an abridgment of the freedom of association protected by the First and Fourteenth Amendments of the U.S. Constitution.”

This conclusion by a three-judge panel on the U.S. District Court for the Western District Court of North Carolina quickly gained wide acceptance in federal courts across the country. Several courts in other circuits also explicitly affirmed that the First and Fourteenth Amendments prohibit laws and policies curtailing front-line employees’ personal right to join and form a union.

Moreover, other established court precedents make it clear that, if an employee’s choice to associate with a labor union is constitutionally protected, his or her choice not to associate must be similarly protected, since the government has no legitimate authority to “prescribe what shall be orthodox” in the realm of politics, conscience and ideas. Consequently, since government restrictions on the individual public employee’s freedom to join a union have been subject to the judiciary’s “strict scrutiny” test for nearly half a century, restrictions on the freedom not to join a union should have to pass this test.

12. Millions of public servants remain subject to compulsory unionism.

Thanks to the Harris decision, an estimated 500,000 home-care providers nationwide who are currently being forced to pay dues to a union may have a free choice in the near future as the 14 states that currently have home-care compulsory-dues schemes like Illinois come into compliance with the ruling.

In Illinois alone, where roughly 25,000 home caregivers were annually forced to pay union dues or fees, Big Labor could lose as much as $11 million a year. Nationwide, government union chiefs could be out as much as $80 million annually.

Of course, this is but a pittance compared to the billions of dollars in annual losses the union hierarchy would have faced if all of the roughly 5.8 million unionized public employees in non-Right-to-Work states were suddenly free from the threat of termination for refusing to bankroll an unwanted union. Encouragingly, the High Court in Harris did cast into grave doubt whether state laws and policies authorizing forced union dues from public servants are permissible under the First Amendment.

However, at least for the near future, the task of actually eliminating these constitutionally dubious statutes and policies has been left to state legislative and executive officials.

About the Author:  Stan Greer is the National Institute for Labor Relations Research’s senior research associate. This article originally appeared in The Federalist, and is republished here with permission from the author.

Turning Points in the Fight Against Forced Unionism?

Summary:  Two current cases offer the U.S. Supreme Court opportunities to stop abuse. The National Labor Relations Act declares that “encouraging the practice and procedure of [monopolistic] collective bargaining” is “the policy of the United States.” Federal courts have often treated that declaration as if it authorized union officials to do whatever they deem necessary to bring employees into unions. Fortunately, in one case heard in November and another set to be heard this month, the U.S. Supreme Court may identify some important limits on union officers’ special legal privileges.

The National Right to Work Legal Defense Foundation provides legal representation to Americans who are fighting compulsory membership in labor unions, or compulsory payments by workers to those unions. Currently, the Foundation has two cases before the United States Supreme Court, the Mulhall case and the Harris case. Depending on the outcomes, these cases could have significant impacts on people’s right to choose whether to join labor unions.
First, let’s look at the case of UNITE HERE Local 355 v. Mulhall, which was heard recently by the U.S. Supreme Court. The case stems from a so-called “neutrality” deal forged in 2004 between hotel workers’ union bosses in UNITE HERE and an employer, Mardi Gras Gaming. Mardi Gras is the operator of a dog racetrack and a casino located in Hollywood, Florida. UNITE HERE is a union that represents mostly hotel workers and those in related fields such as food and laundry services.

Under the terms of the neutrality deal, Mardi Gras agreed to help officials of Local 355 of UNITE HERE secure monopoly-bargaining power over the company’s front-line employees. In exchange, the union brass agreed to divert a substantial sum of money from their treasuries, laden with workers’ dues, to back a casino gambling ballot initiative that the company wanted passed. Union bosses also promised not to picket or strike Mardi Gras as they sought to unionize its employees.

After the deal was reached, without employees’ input, it became clear that many of them did not want to be unionized by UNITE HERE. One employee, groundskeeper Martin Mulhall, was especially determined to prevent UNITE HERE from being imposed on him and his fellow workers. Mulhall was confident that, provided that employees had the opportunity to make their choice in the privacy of a voting booth, Mardi Gras’ front-line employees would never vote to make UNITE HERE Local 355 their monopoly-bargaining agent. He was chagrined to learn that, under the terms of the “neutrality” deal, UNITE HERE could unionize the workplace without having to face a secret-ballot election first.

Mardi Gras had acquiesced to “card check” recognition of Local 355. That is the sort of thing many businesses have done in recent years in order to avoid Big Labor harassment and negative public relations, or to get something in return from the union. The “card check” process essentially eliminates the secret ballot. Under the longstanding federal court interpretation of NLRA Section 9(a), union organizers may acquire monopoly-bargaining power by collecting signed “union authorization cards,” if the employer acquiesces. Consequently, under the peering eyes of union organizers individual workers may be intimidated into unionizing—signing not just themselves, but all of their nonunion fellow employees, over to union officials’ control.

Mulhall believed that UNITE HERE organizers would never be able to win over a majority of employees without coercion, but that absent the protection of a secret ballot, the union could prevail if given a “card check” process and the opportunities for intimidation it would provide.

That’s especially true because there’s little chance that union professionals would share a critical fact with hesitant employees: that the cards, if signed by a majority, bring the union in automatically, with no secret-ballot vote ever required. Under pressure from union organizers, employees often sign such cards because they incorrectly assume—or are dishonestly told by the union—that by signing they are just calling for an election in which they will later have a chance to vote against the union.

Mulhall was determined to stop the “card check” scheme, but he didn’t know how. He reached out to the National Right to Work Legal Defense Foundation, and in 2008 foundation attorney Bill Messenger filed, on Mulhall’s behalf, a federal suit alleging that key provisions of the “neutrality” deal between Mardi Gras and Local 355 violate the law. The deal has not (as yet) led to unionization of Mardi Gras employees; the company eventually concluded the deal was illegal and repudiated it. I say “as yet” because Local 355 has attempted to enforce the “neutrality” deal in court. Thus, the Mulhall case remains active and in need of resolution.

The case was heard by the U.S. Supreme Court on November 13. Lawyers for Martin Mulhall do not contend that “card check” deals per se are illegal. However, as a practical matter, Mulhall represents a grave threat to “card check” organizing. That makes the case critically important because, according to the best available evidence, “card check” has become private-sector unions’ most important method of organizing.

No wonder Benjamin Sachs of Harvard Law School has referred to Mulhall as, potentially, “the most significant labor case in a generation.” Sachs’ assessment has been quoted in dozens of mainstream and specialized legal media reports on the case.

Gag clause a ‘thing of value’

The major issue in the Mulhall case relates to whether key elements of the agreement between UNITE HERE and Mardi Gras constitute a “thing of value.” The NLRA law’s Section 302(a)(2) makes it  unlawful for any employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization . . . which represents, seeks to represent, or would admit to membership, any of the employees, of such employer.

And Section 302(b)(1) makes it unlawful for any union or union officer “to request, receive, or accept, or agree to accept” any such “thing of value.”

As Bill Messenger, attorney for the National Right to Work Legal Defense Foundation, explained in a brief to the Supreme Court, Congress adopted Section 302 largely in recognition of the fact that union monopoly bargaining as authorized and encouraged by the statute “creates a fiduciary relationship.” A fiduciary relationship is one of trust, such as between a trustee and a beneficiary; a trustee must act in the interests of the beneficiary. For example, an attorney must operate in the interests of his or her client. The NLRA-promoted fiduciary relationship between union officers and unionized employees is another example.

Messenger argued that Congress had adopted Section 302 largely to forestall “conflicts of interest in labor relations.” In support of this view, he quoted a U.S. Senate report on the 1959 NLRA amendments that extended the section to cover any union seeking to organize an employer’s employees:

For centuries, the law has forbidden any person in a position of trust to hold interests or enter into transactions in which self-interest may conflict with complete loyalty to those whom they serve.

Agreements to “pay, lend, or deliver” things of value to employees themselves, rather than to union officials, are indisputably permissible. The only “things of value” prohibited are those rendered by employers to union officials (except for some explicit exceptions in the law).

In the case now before the Supreme Court, Mulhall contends that three types of organizing assistance promised by Mardi Gras to Local 355 as part of their “neutrality” deal constitute “things of value” prohibited by Section 302:
(1) lists of confidential information about Mardi Gras’ nonunion employees, including their “job classifications, departments, and addresses”; (2) use of Mardi Gras’ private property for organizing; and (3) control over Mardi Gras’ communications to nonunion employees regarding unionization . . . . The last provision [of the deal] stated that “[t]he Employer will not do any action nor make any statement that will directly or indirectly state or imply any opposition by the Employer” to unionization or any particular union.

The Obama administration involved itself directly in the case, filing a “friend of the court” brief. While urging the Supreme Court to find that Local 355 had not violated Section 302, Solicitor General Donald Verrilli conceded that “courts generally construe” the term “thing of value” to include “both tangibles and intangibles.” He noted:
Courts have found a wide variety of goods, services, and benefits to be “things of value” within the meaning of the criminal laws.

Mulhall’s brief added that to be a “thing of value” under Section 302, a service or benefit need only be of value to the union officials receiving it. Moreover, each of the neutrality pact provisions at issue has a market value, albeit one it is difficult to assess with any precision, and can be “delivered” to union representatives.

For example, the gag rule provision is legally comparable to one business agreeing with another (assuming the agreement is permissible under antitrust law) not to fight for customers in a particular market, in exchange for some other consideration:

. . . Coca-Cola certainly delivers something of great value to Pepsi if it enters into a noncompetition agreement that bars it from advertising or competing against Pepsi in a particular market.

No ‘successful union organizing’ without employer collusion?

Questioned during November’s Supreme Court hearing on the Mulhall case, UNITE HERE lawyer Richard McCracken had a tough time defending his claim that gag rules, lists of employee names and addresses, and use at no cost of an employer’s facilities are not “things of value” under Section 302. Even Deputy Solicitor General Michael Dreeben, who also appeared before the Court to argue that UNITE HERE bosses had not violated the law, undercut McCracken on this key point when he admitted:

Certainly, read in isolation, the words “thing of value” are very broad. In other statutes, they cover intangibles. We would have no problem treating the things here as things of value under . . . 302 if that’s the only thing that existed.
But Dreeben contended all this shouldn’t matter, because union organizers have a right to seek recognition from an employer as employees’ monopoly-bargaining agent based on signed cards alone, without a secret-ballot election. That’s under NLRA Section 9(a), as interpreted by the Supreme Court in National Labor Relations Board v. Gissel Packing (1969). If the employer acquiesces, union bosses have a right to unionize employees through such “card checks” without a vote.

“Card check” recognition is obviously a thing of value to organized labor, Dreeben noted. Because it is permissible for employers to deliver such recognition to union officials, he claimed, it should also be permissible for employers to deliver to union officials virtually any other kind of organizing assistance, regardless of what Section 302 says.
The administration’s Dreeben and UNITE HERE’s McCracken evidently did not think it prudent to baldly claim, as Sachs of Harvard Law School had in a blog post the day before, that “effective union organizing” in the private-sector today relies on employer collusion in the form of gag rules, lists of information, and use of property. Yet Dreeben made the same point more circumspectly. He suggested the Justices should rule against Mulhall because employers’ “voluntary” recognition of unions through “card checks” is not merely a “permissible” element but a “favored” element of national labor policy.

But that’s wrong. In reality, the Supreme Court in the 1969 Gissel case acknowledged that “secret elections,” not “card checks,” are the “preferred” method “of ascertaining whether a union has majority support.” Therefore, there is no plausible reason to ignore the literal meaning of Section 302 in order to avoid hindering Big Labor from securing monopoly-bargaining privileges through “card checks,” even though “card checks,” with organizing assistance from employers, have become unions’ favored modus operandi.

As the attorney Bill Messenger observed in response to question from Justice Sonia Sotomayor, “nothing gives [UNITE HERE] any right to the three things it demands from Mardi Gras. So enforcing 302 in this case cannot conflict with the NLRA.”

Case #2: Forcing caregivers to join unions

If it comes out wrong, the Supreme Court case of Harris v. Quinn, set to be argued this month, could take the country much further down the road of Big Labor coercion. Or it could go in the other direction, revoking forced-dues privileges that government unions have exercised in many jurisdictions for more than four decades.

The lead plaintiff in Harris lives in a Chicago suburb and is the mother of a young adult son with severe developmental disabilities. In fall 2009, Pam Harris received a form letter from agents of Gov. Pat Quinn (D-Ill.). It informed her that, as a care-provider for her son in the state Disabilities Program, she now could cast a mail-ballot vote on which of two unions would be installed as her monopoly-bargaining agent in her dealings with the state. The letter Harris and several thousand other Disabilities Program providers received did not clearly state that they could opt for no union representation at all.

How did top bosses of the Service Employees International Union (SEIU) and the American Federation of State, County and Municipal Employees (AFSCME) get the opportunity to compete for control of Disabilities Program providers? They owed it all to Executive Order 2009-15, issued by Quinn on June 29, 2009.

Participants in the Illinois Home Based Support Services Program for Mentally Disabled Adults receive taxpayer-funded subsidies from the state to help cover the cost of care. Adults, or their legal guardians, may use their subsidies to compensate care-providers. Executive Order 2009-15 was crafted to enable one union to secure recognition from the state as these providers’ exclusive representative in their dealings with the state, and then to extract forced dues or fees from the providers.

For many years before, Big Labor had wanted to corral taxpayer-subsidized home care providers across Illinois into government unions, but had not been legally able to do so. The courts had held the providers were not public employees, because they are not supervised, hired, or fired by the state.

Quinn’s edict did nothing to change the underlying facts, of course. It simply declared that, even though citizens like Pam Harris aren’t supervised, hired, or fired by the state of Illinois or any of its subdivisions, the fact that they are paid and regulated by the state suffices to justify classifying them as public employees solely for purposes of unionization.

If the schemes concocted by Pat Quinn and other opportunistic Big Labor politicians in multiple states over the past few years—schemes to expand the reach of public-sector monopoly unionism—are constitutionally permissible, the implications are enormous. Doctors who accept patients under Medicare and/or Medicaid could be forced by gubernatorial executive order or state legislation to accept a particular private organization as their lobbying agent. Moreover, doctors could be forced to pay mandatory dues and fees to such an organization. Similarly, impoverished parents who participate in the “food stamp” program could be forced to join or pay fees to a government-designated lobbying agent.

Pam Harris and other care-providers cry halt

Over the course of the rigged Disabilities Program provider “election” in fall 2009, Harris and other parents pooled their money to print and distribute a flyer countering the Quinn team’s propaganda. The independent-minded providers’ shoestring effort succeeded. Providers ultimately voted two to one for “no union.” Nevertheless, SEIU and AFSCME union officers continued to press ahead with their efforts to gain forced-dues privileges over caregivers.

In Harris v. Quinn, Pam Harris and other Disabilities Program providers are seeking relief from these unionization efforts (continued under a program established by Quinn’s predecessor, the now-jailed Gov. Rod Blagojevich). They have been joined by several at-home caregivers who are being forced to pay union dues as a condition of receiving state assistance. Like Martin Mulhall in his case, the plaintiffs in the Harris case are represented before the Supreme Court by Bill Messenger of the Right to Work Foundation.

During oral arguments on January 21, Messenger will ask the Supreme Court to protect his clients from compulsory payments to unions by overturning Abood v. Detroit Board of Education, a 36-year-old case that invoked the “free rider” excuse to force workers into unions. Under this theory, workers who don’t pay forced union dues would get a “free ride” with regard to the benefits of the union’s bargaining and contract administration (benefits unsolicited by the workers, of course). Messenger will respond by citing a recent Foundation-won Supreme Court case, Knox v. SEIU Local 1000, in which Justice Samuel Alito observed in his majority opinion that “free-rider arguments . . . are generally insufficient to overcome First Amendment objections.” Alito added that perhaps Abood had crossed “the limit of what the First Amendment can tolerate.” (For more on Knox v. SEIU, see Labor Watch, Oct. 2012.)

Messenger will also argue that, even should the Court balk at reversing Abood, his clients must not be forced to pay union dues or face the imminent threat of forced-dues payments, because they are not employed in any government workplace. Therefore, there exists not even a theoretical possibility of “labor peace” in the workplace being disrupted by so-called “free riding,” as the Abood opinion had envisioned.

‘First Amendment values are at serious risk’

A Harris ruling that neither revokes Abood’s constitutional waiver for public-sector forced union dues nor finds the plaintiffs outside of Abood’s reach would have very dark implications for personal liberty and the democratic process.

In a November 2011 petition asking the Supreme Court to accept the case, Messenger reminded the Court that, outside the realm of labor-management relations, it has up to now been very reluctant to uphold statutes or executive orders that impose “compulsory advocates” on individual citizens. He quoted the Court’s 2001 ruling in U.S. v. United Foods:

First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors.

In short, Abood blew a hole in the First Amendment, but a victory for the Quinn Administration and Big Labor in Harris would greatly expand that hole and jeopardize the free speech rights of millions of citizens who have been protected up to now.

That’s why, as high as the stakes are in Mulhall, the stakes in Harris appear to be even higher.

Stan Greer is senior research associate for the National Institute for Labor Relations Research, a think tank located in Springfield, Virginia, that is affiliated with the National Right to Work Committee. The opinions presented here are his own. This article originally appeared in Labor Watch, a publication of the Capitol Research Center, and appears here with permission.

If Unions Do So Much For Members, Why Bully?

The Michigan Education Association had its apple cart turned upside down when the Wolverine State went “right-to-work” in December. This means that, unlike California and 25 other states, a worker doesn’t have to pay union dues as a condition of employment.

My introduction to union coercion came in 2005, when, as a middle school teacher in Los Angeles, I joined the Prop. 75 campaign. That initiative would have prohibited public employee labor organizations from collecting the part of union dues which goes for politics without prior consent of the employee. Sensing a disruption in their forced dues gravy train, the California Teachers Association went into overdrive. It raised union dues on its members for a three-year period and mortgaged their offices in Sacramento, then used the millions they accumulated to scare teachers and the public – ominously warning them of imaginary horrors that would be visited on them if the proposition passed.

Teachers unions are forever telling its members how much the union does for them in the way of wages, job benefits, etc. You would think that an organization that does so much for its members wouldn’t have to resort to bullying to keep them in the fold. But the unions know that without forcing the issue, many teachers would just say, “No.” For instance, in Wisconsin, after Act 10 came into law allowing teachers to quit their union, about 30 percent have already quit with more to follow this June when their contracts expire.

Also, typically unspoken in the unions’ talking points is the fact that while union members in forced union states may make more than their counterparts in RTW states, the costs of goods and services are far lower in these states, the result being a net gain for the employee. The unions also don’t tell you that workers are flocking to RTW states, which have a lower unemployment rate than in states that are dominated by unions.

In Michigan, a skittish MEA is doing what it can to intimidate teachers. First, they are scrambling to get new contracts for teachers all over the state before March when the new RTW law takes effect. Also, MEA boss Steve Cook issued a threat that any teacher who decides to bail in March will be sued. According to a Wall Street Journal editorial,

“Members who indicate they wish to resign membership in March, or whenever, will be told they can only do so in August,” Mr. Cook writes in the three-page memo obtained by the West Michigan Policy Forum. “We will use any legal means at our disposal to collect the dues owed under signed membership forms from any members who withhold dues prior to terminating their membership in August for the following fiscal year.”

Got that, comrade?

If nothing else, recent events have shown without a shred of doubt, the union is about maintaining its power and collecting every last penny they claim is owed to them. All the lofty talk about the children is just so much camouflage for their real agenda – accumulating money and power.

Another expression bandied about by the unions is the term “free rider.” They try to gain sympathy by suggesting that those in RTW states who don’t voluntarily join are getting something valuable for free. This specious argument really needs to be countered. Many teachers would happily say, “I don’t want any part of the union and the perks it may get me. I think I have a valuable service to offer and want to negotiate my own contract.” Seems reasonable, right? Well, that decision is not up to the teacher. As Heritage Foundation’s James Sherk points out,

Unions object that right-to-work is actually “right-to-freeload.” The AFL-CIO argues “unions are forced by law to protect all workers, even those who don’t contribute financially toward the expenses incurred by providing those protections.” They contend they should not have to represent workers who do not pay their “fair share.”

It is a compelling argument, but untrue. The National Labor Relations Act does not mandate unions exclusively represent all employees, but permits them to electively do so. Under the Act, unions can also negotiate “members-only” contracts that only cover dues-paying members. They do not have to represent other employees.

Teacher union watchdog Mike Antonucci adds,

The very first thing any new union wants is exclusivity. No other unions are allowed to negotiate on behalf of people in the bargaining unit. Unit members cannot hire their own agent, nor can they represent themselves.

So those deemed free riders by the unions are really forced riders.

Having seen the union’s lies and intimidating ways up close and personal, I am hardly surprised at MEA’s hardball tactics. But it seems that the voters in states like Michigan and Wisconsin have awakened, perhaps signaling that worker freedom just may be the wave of the future.

Larry Sand, a retired teacher who taught in Los Angeles and NYC public schools for 28 years, is the president of the California Teachers Empowerment Network. This post originally appeared as a guest column in the Orange County Register and is republished here with permission from the author.