Labor Unions Less About Workers’ Rights and More About Union Membership

The moderate sensibility is both wistful and irritable about labor unions.  Wistful, because the stories of labor union origins are often so stirring, even heroic, as against the abusive power of industry titans.  Moderates feel instinctive revulsion at concentrations of power in the public or private sector — such is the inevitability of injustice.  And management can certainly be repugnant, typically in the human clueless sense rather than the ideological clueless sense.  Norma Rae (1979) tells a wonderful story of one woman’s determination to unionize a textile mill, against repugnant human clueless management, and still moves audiences three decades later.

Irritable, because the modern reality of labor unions is an assault on fairness, on choice, and on productivity in the public and private sectors.

The thoughtless default about labor unions is that they represent a fair counterpoint to corporate power — corporate management pursues the interest of management and shareholders, and the union pursues the interests of the worker.  The collective power in both cases, so goes the myth, offsets the abuses of both, and the resulting “level playing field” is a good thing.  Nonsense.

For two compelling reasons, modern industries and labor unions do not dwell in such perfect equipoise.  There is no salutary competitive trade-off.

First, the respective interests of companies and unions have radically different effects on the larger economy.  No “level playing field” results from the exertions of labor unions.  Quite the contrary.  Companies pursue profit, productivity, and expansion, and unions pursue higher wages, more benefits, and a more comfortable and heavily regulated workplace — regardless of the impact upon profit, productivity, and the possibility of expansion.  And here is the obvious asymmetry.  In the pursuit of profit and productivity, companies provide jobs.  More profit and productivity, more jobs.  Unions could care less about “jobs” generally.  Their focus is on this job, their jobs, their workers, their benefits, whether or not the job — or the worker — makes economic sense.

Norma Rae succeeded in unionizing the textile mill.  In the real world, the unionization of textile mills did reverse some unacceptable workplace conditions, but the spike in labor costs also triggered the drive to mechanize, and the consequent loss of jobs.

Second, the truly noble purposes that labor unions strove to accomplish at their inception have been massively co-opted by the federal government.  At their inception, labor unions sought to give workers basic protections against predations by the robber barons of yore who could do pretty much whatever they wanted.  Courtesy of vast government regulation in the ensuing decades, corporations cannot do whatever they want, indeed very little they might even vaguely wish.  The federal government has become the ultimate and omnipotent guarantor of labor rights — effectively, a super-union.  That may or may not be a good thing, but it is most certainly a diminution of the moral and logical justification for labor unions.

In Youngstown, Ohio, in August 2008, then presidential-candidate Obama declared:

I believe in unions. I believe in unions, because, if you look — if you look at the history of this country, things we take for granted, 40-hour workweek, minimum wage, overtime, health care benefits, paid leave, paid — child labor laws, those — those were union fights.

And, even today, even if you’re not in a union, you’re still benefiting from the fact that there’s a union out there putting pressure on employers to do the right thing. [Cheering and applause.] …

So, what we have to do is figure out how can we strengthen unions and thereby give workers a little more leverage. So, there are a couple — there are a couple things that I think we can do. Number one, I think that we should pass the Employee Free Choice Act.   [Cheering and applause.]

That will make it easier for unions to organize, make it harder for companies to block unionization.

Virtually every factual statement (no quibble with his “belief in unions”) by candidate Obama is demonstrably false.  I’ll discuss the travesty of the Employee Free Choice Act shortly.  Importantly first, labor unions didn’t secure any of the rights mentioned by candidate Obama; the federal government did.

Labor rights were substantially secured not by collective bargaining, but by Congress, and abundantly amplified, in detailed regulations, by the federal agencies charged with enforcing these rights:  the Clayton Antitrust Act (1914), which prohibited several anti-competitive business practices, but exempted labor unions, and secured the right to strike, picket, and boycott; the Davis-Bacon Act (1931), as amended, which required payment of prevailing wage rates and fringe benefits on federally-financed or assisted construction; the National Labor Relations Act (1935), which guaranteed workers the right to a join a union, engage in collective bargaining, or strike without fear of reprisal from management — and also gave rise to volumes of workplace regulations; the Walsh-Healey Public Contracts Act (1936), which requires payment of minimum wage rates and overtime pay on contracts to provide goods to the Federal Government; the Fair Labor Standards Act (1938), as multiply amended, which established a minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private and public sectors; the Service Contract Act, which requires payment of prevailing wage rates and fringe benefits on contracts to provide services to the Federal Government; the Contract Work Hours and Safety Standards Act, which sets overtime standards for service and construction contracts; the Equal Pay Act (1963), which made it illegal to pay different wages to men and women if they perform equal work in the same workplace and outlawed any form of retaliation; the Civil Rights Act of 1964, as abundantly amended and expanded upon, which created a massive federal framework for workers of all arguable minority status to bring claims against employers; the Age Discrimination in Employment Act of 1967 (ADEA), which outlawed discrimination against people who are 40 or older; the Migrant and Seasonal Agricultural Worker Protection Act, which imposed certain requirements on agricultural employers and required the registration of crew leaders who must also provide the same agricultural worker protections; the Wage Garnishment Law (1970, amended 1979), which limited the amount of an individual’s income that may be legally garnished and prohibits firing an employee whose pay is garnished for payment of a single debt; the Occupational Safety and Health Act of 1970, which created volumes of workplace health and safety regulations; the Employee Retirement Income Security Act (ERISA) of 1974, which federalized employee retirement plans and created a massive set of much-litigated regulations governing those plans; the Pregnancy Discrimination Act of 1978, which amended Title VII to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth; the Employee Polygraph Protection Act, which prohibited most private employers from using any type of lie detector test either for pre-employment screening of job applicants or for testing current employees during the course of employment; the Americans with Disabilities Act (1990), which outlawed discrimination against people with disabilities and triggered massively expensive structural changes and litigation for American business; the Family and Medical Leave Act (1993), which entitles eligible employees of covered employers to take up to 12 weeks of unpaid job-protected leave each year, with maintenance of group health insurance, for the birth and care of a child, for the placement of a child for adoption or foster care, for the care of a child, spouse, or parent with a serious health condition, or for the employee’s serious health condition; Lilly Ledbetter Fair Pay Act of 2009, which amended Title VII, the ADEA, the ADA, and the Rehabilitation Act to make it easier to sue for claims of discrimination, even when the claims originated decades earlier; and the Patient Protection and Affordable Care Act (Mar. 23, 2010, “ObamaCare”).

That’s a short list.  (And on that last one, ObamaCare, labor got a $60 billion give-back for their “Cadillac” health care plans.)  There’s much, much more actual legislation, never mind the tens of thousands of pages of regulations, or the multiple billions of dollars in litigation, triggered by these laws.  Whether the laws are wise is not my concern.  I note simply that the original salutary pursuits of labor unions were abundantly preempted by the federal government, which left labor unions free to pursue naked self-aggrandizement — aided by mandatory dues payments from workers who may or may not have desired union membership.

Workers may well have needed a fair grievance procedure.  Congress provided that and more.  Workers did not need an entity that mandated dues payments, provided nothing of legal consequence that the federal government had not already provided, and in multiple cases of corruption, fraud, and embezzlement, betrayed the trust of those workers.

Freed of the need to pursue “labor rights,” labor unions were free to pursue labor union aggrandizement.  Labor unions became a rich, ensconced, and often corrupt institution (compare Norma Rae and On the Waterfront (1954)), with no need to spend its largesse on anything but itself.  And spending on itself — i.e., its bosses — may be precisely one of the reasons labor union membership declined precipitously.  According to 2009 Labor Department figures, 12.3 percent of American workers belong to a union — down from 20.1 percent in 1983 — and remarkably, most of that current membership is in the smaller public sector.

Employers, at least private-sector employers, in the federal-government-administered elections on whether to unionize, have been able to make a more compelling case to workers against unionization.

And so what do unions do?  Disturbed by declining membership and successful employer campaigns against unionization, unions spend their largesse to target both.  Create a law, the unions conceive, that cripples the employer’s opportunity to make any case against unionization.  That desired law — the one candidate Obama praised — is the misleadingly named Employee Free Choice Act (EFCA).

EFCA would strip workers of a private ballot, currently administered neutrally by the federal government, and substitute a “card check” system that permitted unions to be recognized if they acquired a majority of workers checking a card in favor a union recognition.  Whatever a worker’s conscience, however he or she might actually feel about unionization, if aggressive union organizers succeeded in getting that worker’s public “card check” vote, game over.  A union could be recognized even before an employer had any opportunity to make a case against unionization — or even before the employer had any knowledge that a unionization campaign had begun.

What a clever way to swell union rolls.  And what a foul bill.  This is the consequence of labor unions having nothing left to do, courtesy of the federal government, but spend their millions to swell their rolls.  What would actually happen in such a “card check” system is exemplified by the thousands of unfair labor practice cases that have been filed against unions since 2000, including 1,417 for coercive statements, 416 for violence and assaults, 546 for harassment, and 1,325 for threatening statements. Most abuses presumably go unreported.

In other words, if I’m an aggressive union organizer, I pursue this worker’s “card check,” when he or she knows there will be no secret ballot, and I will say it’s a done deal so don’t buck, or else.  As a federal appellate court understated, “workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back.”  NLRB v. Village IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 1983).

The Employee Free Choice Act should never have even been contemplated by Congress — much less actively considered.  Even former Senator and Democratic presidential candidate George McGovern, a champion of organized labor, publicly condemned EFCA, after he experienced, for the first time late in life, the challenges of actually running a business:

Under EFCA, workers could lose the freedom to express their will in private, the right to make a decision without anyone peering over their shoulder, free from fear of reprisal.

There’s no question that unions have done much good for this country. Their tenacious efforts have benefited millions of workers and helped build a strong middle class. They gave workers a new voice and pushed for laws that protect individuals from unfair treatment. They have been a friend to the Democratic Party, and so I oppose this legislation respectfully and with care.

To my friends supporting EFCA I say this: We cannot be a party that strips working Americans of the right to a secret-ballot election. We are the party that has always defended the rights of the working class. To fail to ensure the right to vote free of intimidation and coercion from all sides would be a betrayal of what we have always championed.

Yet Democrats in the House of Representatives passed the EFCA in 2007 by a vote of 241 to 185, and it remains a pending bill today.  And that is because organized labor has a bundle of money — with no need to spend it on “labor rights” — that it can pour into the focused goal of expanding its membership.  EFCA is a naked union-membership expansion bill.  Democrats supported this egregious bill because unions use their enormous wealth to support Democrats — having nothing else to do.

DOJ v. Arizona. Justice Brennan v. President Obama.

Now let me get this straight.  (1) The federal government abdicates its responsibility with respect to immigration enforcement. (2) Arizona enacts a law narrowly requiring state enforcement of federal immigration law. (3) The federal government sues Arizona for enacting that law?!

Let me be clear: I’m in the George Bush-John McCain-Barack Obama camp favoring comprehensive immigration reform that both strengthens border security and creates a viable route to citizenship without completely trampling on the righteous and often tortured efforts of millions of legal residents to gain legal citizenship.  In other words, it shouldn’t be easier to be an illegal immigrant and gain citizenship than it is to be a legal immigrant and gain citizenship.

But this DOJ lawsuit — now coupled with Eric Holder’s bizarre announcement that DOJ might launch a second lawsuit if the Arizona law results in “racial profiling” — seems so profoundly misdirected that one has to ask what could possibly be motivating President Obama and Attorney General Eric Holder?  Even if the federal government’s legal position were strong — and I don’t believe it is — there were already several lawsuits challenging the law.  Why add the Department of Justice to the legal battle when it is precisely the abject failure of the federal government that gave rise to the Arizona law in the first place?

Moreover, given the majority American support for the Arizona law, and the majority American opposition to the DOJ lawsuit, the only possible political calculation here is the Hispanic vote, which Obama/Holder presumably believe will tilt even more Democratic with their muscular pummeling of the State of Arizona.  That’s a pretty cynical basis for a misdirected lawsuit.

The federal government is saying that no state can enact a law having anything to do with immigration because the federal government is supreme and exclusive with respect to immigration law, whether or not it chooses to enforce immigration laws.

This is a fascinating lawsuit.  We will discover as a nation whether the federal government can both refuse to enforce duly-enacted federal laws and  forbid states to enforce the same laws.  We will learn whether it is possible for Congress to enact laws, the White House to ignore them, and the Justice Department to forbid states to not ignore them.  Much hangs in the balance.

If an already heavily-politicized Justice Department can both pick laws not to enforce and pick states to stop from trying to enforce those same federal laws, then the Executive Branch truly becomes the supreme branch — no longer subject to the delicate regime of checks and balances contemplated by the Founders.

DOJ’s lawsuit is predicated on the doctrine of preemption: federal law trumps, which is true.  There are two types of preemption: conflict preemption and field preemption.  Conflict preemption forbids state or local laws that conflict with federal law.  The Arizona law is clearly not that kind of law, as it essentially codifies some federal immigration law into Arizona law.  Field preemption forbids any state or local law in a particular field because the federal government has declared in unmistakable terms that only the federal government may legislate in the field at issue.  The DOJ lawsuit seeks field preemption of the Arizona law.

Field preemption is a delicate matter.  It says, in arguable derogation of the Tenth Amendment and our federalist respect for state sovereignty, that the federal government can so thoroughly occupy an issue that no state enactment — even one consistent with the federal enactment — can stand.  Because that magnitude of federal aggrandizement is a troubling phenomenon, the Supreme Court has imposed strict limits on any finding of field preemption.  “[F]ederal regulation . . . should not be deemed pre-emptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.”  Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963).

One of the great strengths of our federal system is the ability of states to engage in diverse legislative experimentation.  It is impossible to gauge all of the consequences of legislation before enactment.  Diverse state enactments therefore constitute a kind of political science laboratory for legislation.  We get to see what works, what does not, and why.  Our collective political science as a nation is accordingly more sophisticated.  Wisconsin enacted an income tax before the federal government.  Massachusetts enacted a version of Obamacare before the federal government, and that experiment became a prominent — though obviously not in Congress decisive — part of that national health care debate.  With taxation, labor, and other policies, different states are more or less business-friendly, and we get to see the consequences.  State sovereignty, state legislative latitude, strengthens our nation.

So how do you get to the specter of exclusive federal power?  “Only a demonstration that complete ouster of state power — including state power to promulgate laws not in conflict with federal laws — was ‘the clear and manifest purpose of Congress’ would justify that conclusion.”  Florida Lime & Avocado Growers, at 146.  As Justice Thomas noted by separate opinion in 2005, even if a statute could be interpreted either to find preemption or not find preemption, “we would nevertheless have a duty to accept the reading that disfavors pre-emption… Because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action… unless Congress has made such an intention clear and manifest.”  Bates v. Dow Agrosciences LLC, 544 US. 431 (2005).

Has the federal government preempted Arizona’s carefully-crafted S.B. 1070?  No.  The federal immigration laws are not field-preemptive.  There is no express, or even discernible, congressional intent to ouster state power altogether — much less a “clear and manifest purpose of Congress.”  Indeed, “rather than evidence that Congress ‘has unmistakably . . . ordained’ exclusivity of federal regulation in this field, there is evidence in the form of the 1974 amendments to the Farm Labor Contractor Registration Act, 88 Stat. 1652, 7 U.S.C. 2041 et seq. (1970 ed., Supp. IV), that Congress intends that States may, to the extent consistent with federal law, regulate the employment of illegal aliens.”  De Canas v. Bica, 424 U.S. 351, 357 (1976).

Interestingly, it was the liberal Justice Brennan who authored the unanimous opinion in De Canas v. Bica, the case that is the chief rebuke of DOJ’s current legal theory.  Justice Brennan had this to say about the relationship between illegal immigration and state authority to combat it — and could he have been more prescient?

Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions. These local problems are particularly acute in California in light of the significant influx into that State of illegal aliens from neighboring Mexico. In attempting to protect California’s fiscal interests and lawfully resident labor force from the deleterious effects on its economy resulting from the employment of illegal aliens, [the California law] focuses directly upon these essentially local problems and is tailored to combat effectively the perceived evils.

No less can be said of Arizona and S.B. 1070.  It will be interesting to watch Obama’s Justice Department jousting with Justice Brennan.

[Also published at The Daily Caller.]

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