A One-Sided ‘Right’ to Unionize?!

A guest commentary by Stan Greer, senior research associate for the National Institute for Labor Relations Research

The National Labor Relations Act (NLRA), the principal federal law regulating employee-employer relations in America’s private sector, purports to uphold the right to “form, join or assist labor organizations” and also “the right to refrain from” forming, joining or assisting such organizations.  But the NLRA fails utterly to give equal protection to workers who don’t want a union.

For example, under the NLRA as interpreted by the courts, workers who don’t want a union have only a nominal right not to join.  As nonmembers, they don’t have the right to refuse to pay dues or fees to the union, and still keep their jobs, whenever union officials can obtain “exclusive” bargaining privileges.  On the other hand, the NLRA fully protects the freedom of employees who want a union to join and pay dues; it doesn’t matter at all if their employer and the majority of their fellow employees oppose unionization.  Pro-union employees cannot legally be fired or otherwise discriminated against for joining or financially supporting a union under any circumstances.

Congress’s avowed principal aim in enacting the NLRA in its present form was to “promote the full flow of commerce,” not to safeguard employees’ personal rights.  Supposedly for the sake of facilitating commerce, Congress has for decades, with federal courts’ acquiescence, granted employees’ freedom of association different levels of statutory protection depending upon their views about unions.

But in recent years a growing number of Organized Labor partisans have become dissatisfied with the NLRA.  Forming, joining and assisting a union is no mere “economic” right, they contend.  There is also a “civil right to unionize,” as a just-published book by union-friendly think-tanker Richard Kahlenberg and union lawyer Moshe Marvit puts it.   Kahlenberg and Marvit’s book (entitled Why Labor Organizing Should Be a Civil Right) proposes adoption of a new federal labor law making discrimination against employees for union membership and activities legally equivalent to discrimination on the basis of race, ethnicity or gender.  Their goal is to intimidate employers into passive submission to unionization of their employees by making them potentially subject to massive civil penalties if they resist.

In their eagerness to expand Organized Labor’s power, Kahlenberg, Marvit, and their allies try to evade an obvious point.  Civil rights are two-way streets.  Laws that were passed primarily to bar discrimination against blacks and other racial and ethnic minorities and women also prohibit discrimination against non-Hispanic whites, Protestant Christians and men.  If joining a union and unionizing your fellow employees are civil rights, then refusal to join a union or accept it as your “exclusive” bargaining agent should receive equal protection under the law.

Unfortunately, in the labor-law overhaul envisioned by Kahlenberg and Marvit, Big Labor would retain the privilege to force individual employees who don’t want a union to accept one as their “exclusive” bargaining agent.  Union officials’ power to exact forced fees from union nonmembers would also be perpetuated.  But if there is truly a civil right to unionize, violators of the right to join a union and the right not to join should be equally liable under the law.

Back in 1948, when union lawyers were trying to get all state Right to Work laws prohibiting compulsory union membership and dues declared unconstitutional by the U.S. Supreme Court, Big Labor openly declared that employees opposed to unionization should be second-class citizens.  The union brief in the Lincoln case sneered:  “[T]he right to work as a non-unionist is in no way equivalent to or parallel of the right to work as a union member; . . . there exists no constitutional right to work as a non-unionist on the one hand while the right to maintain employment free from discrimination because of union membership is constitutionally protected.”

The claim that there is a civil right to join a union, but no equivalent right not to join a union was summarily rejected by a unanimous High Court in January 1949.  It was preposterous then, and it remains preposterous now.  Workers’ civil rights shouldn’t hinge on their views about unions.  But if Kahlenberg, Marvit and other proponents of monopolistic unionism as a “civil right” still agree with the union appellants in Lincoln, and disagree with the Supreme Court, that is their prerogative.   In that case, Kahlenberg and Marvit ought to be as forthright about their understanding of the “civil right to unionize” as the Lincoln brief was.

Mr. Greer is senior research associate for the National Institute for Labor Relations Research, a Right to Work-affiliated educational group located in Springfield, Va.

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