Pro-union labor law provisions are anti-liberty

The dimensions of the final budget reconciliation bill, the Build Back Better Act (“BBB”), are still being negotiated among the Democratic members of Congress. Most focus has been on the price tag of the bill. However, tucked away in that bill there are likely to be one or both of two labor law provisions pursued by the Democratic Party for over 70 years.

In a bill this massive, these two items might well pass even though, standing alone, they would not.

The short time frame for consideration also suggests that might happen. The decision by the Republicans in the Senate to approve a temporary increase in the debt ceiling only until December 3, coupled with their declaration that they will force congressional Democrats to carry that burden alone thereafter, signals that the Democrats will include the increase in the debt ceiling in the BBB, which needs only Democratic senators and representatives’ votes to pass. That means December 3 has become the effective deadline for BBB to pass as well.

What is most likely is that provisions will be added to the BBB right up to the last minute, at which point, Democratic members of Congress will be urged to vote for the whole package since, if the bill fails, the U.S. would suffer catastrophic default on our sovereign debt. It is probable, as Speaker Pelosi once said of the Affordable Care Act (“Obamacare”), that Congress will

“have to pass the bill so that you can find out what is in it — away from the fog of the controversy.”

The two labor provisions worth watching as last-minute inclusions would enact a “card majority” rule to compel the certification of a union as the exclusive bargaining agent for employees and a repeal of the “right to work” provision of the 1947 Taft Hartley Act.

The New Deal’s 1935 National Labor Relations Act gave a union the exclusive right to represent all the employees in a particular employment setting if a bare majority of the workers voted for the union in a secret ballot. Unions argued they should be allowed to speak for all employees, even those who did not want the union, comparable to how a member of Congress represents all the persons in the member’s district, even if the member won only 50.1% of the vote. The analogy to a political election required a secret ballot of employees.

The more aggressive stand that was advanced in 1935, but not enacted, and has since recurred in Democratic Party platforms, was that the union should enjoy the right to be the exclusive representative of all the workers if the union presented management with cards favoring the union signed by a majority of the employees.

The threat to worker freedom of choice is obvious. Coercion is not unknown when a union representative puts a card in front of a worker to sign. A union shop steward, joined by union partisans, can be very persuasive when surrounding an individual worker at a plant gate. The secret ballot requirement was designed to protect against such intimidation.

The second provision likely to be included at the last minute has already passed the House, on a nearly perfect party-line vote. The Taft Hartley Act allowed individual states to protect non-union workers from having to pay anything to a union: they have the “right to work” even if they don’t support the union. Union partisans want to repeal that, thereby forcing workers who disfavor the union to contribute anyway up to the cost the union incurs in representing them, often inflating their estimate of that cost.

Both provisions are antithetical to the individual liberty of workers to decide for themselves who will represent them in collective bargaining. Neither provision would stand the light of day, if sunshine were allowed to shine on either. On December 3, at 2 in the morning, however, they might very well become law.

Tom Campbell is a professor of law and of economics at Chapman University. He served five terms in Congress. He left the Republican Party in 2016 upon its nomination of President Trump and is now working to create a new political party in California, the Common Sense Party.