Solidarity and Labor Law Reform in the 1990s
JUNE 01, 1990 by CHARLES W. BAIRD
Dr. Baird is Professor of Economics at California State University at Hayward.
At its 18th biennial convention, held in Washington, D.C., last November, the A.EL.-C.I.O. again called for major reform of U.S. labor law along the lines of the failed labor law reform bill of 1978. That bill would have made it much more difficult for employers to compete with unions during certification election campaigns and would have greatly increased the penalties imposed on employers found to be in violation of the pro-union rules. It would have made it much more difficult for nonunion workers to remain union free.
Lech Walesa, the leader of Poland’s Solidarity union, was the guest of honor at the November convention; He gave a speech in which he thanked the A.F.L.C.I.O. for its assistance in Solidarity’s struggle against Communist oppression in Poland. He even taped a “union yes” television ad for his hosts. Lane Kirkland, the newly re- elected A.F.L.C.I.O. president, also gave a speech. He accused the Bush Administration of hypocrisy in its simultaneous support of Solidarity and its resistance to the political agenda of the A.F.L.C.I.O., and he promised a “renaissance” for the union movement in the 1990s.
With less than 13 percent of the American private sector work force in unions, a number that has been falling each year for 30 years, the A.F.L.C.I.O. has even less political clout than it did in 1978. The prospects for pro- union labor law reform are bleak. However, Mr. Walesa’s participation in the convention and his taping of the commercial are a boon for the A.F.L.C.I.O. Americans appropriately have enormous respect and admiration for Mr. Walesa and Solidarity. His endorsement could make the A.F.L.C.I.O.’s political agenda more salable:
Solidarity and American unionism are very different things. Mr. Kirkland and the A.F.L.C.I.O. are inappropriately attempting to free ride on Mr. Walesa and Solidarity. Solidarity is a union all right, but it is not an American-style union. It is primarily a pro-democracy movement made up of workers who voluntarily came together to resist, and later overthrow, one-party dictatorship in Poland. It stands for pluralistic, multi-party democracy with regularly scheduled elections.
American unionism, in contrast, is structured by existing labor law as one-party monopoly rule. it is anti- democratic insofar as it stands for one-man, one-vote, once.
The National Labor Relations Act is based on the principle of exclusive representation. Once a union wins a certification election, it represents all workers on the job. No other union may represent any Of the workers, even if some workers want it to do so.
Unionists justify exclusive representation by analogy with winner-take-all elections of members of the House of Representatives. Each member is a monopoly representative of his or her district; so, by analogy, it is proper for a winning union to be a monopoly representative of workers for collective bargaining purposes.
The analogy is inapt. First, the sale of one’s own labor services is in the private sphere of human action. Mandatory submission to the will of a majority is necessary in governmental matters, but individual free choice is the usual decision rule in private affairs. Second, a labor union is more like a political party (indeed, that is what Solidarity has become) than like an individual member of Congress. We have more than one party in Congress, and workers ought to have access to more than one union at the workplace.
In most political democracies—e.g., Japan, Britain, and West Germany—unionism also is democratic. That is, unionism is based on proportional representation wherein each union bargains only for its voluntary members. Bargaining committees are made up of multiple unions, each with representation in proportion to its membership. Workers are free, on an individual basis, to decide whether to be represented by a union, and if so, by which one. Moreover, they are free to switch their allegiances among unions. This is pluralistic, voluntary, multi-party unionism. It is the form of unionism President Roosevelt endorsed in his 1934 automobile strike- threat settlement. Since it is common in Western Europe, it is the kind of unionism most likely to emerge in liberated Poland.
In America, once a union is elected as exclusive bargaining agent, it does not have to worry about regularly scheduled re-elections. A certified bargaining agent is presumed to continue to have majority support until the contrary is proven through a cumbersome process that must be initiated by disaffected workers willing to bear the expenses—and risks—of attempting to collect signatures on a petition for a de-certification election. Thus in addition to one-party rule, American unionism has no regular elections to determine which party shall rule.
We need reform of American labor law in the 1990s all right, but not the sort Mr. Kirkland has in mind. We ought to substitute proportional representation for the one-party rule of exclusive representation. Failing that, we ought at least to amend the National Labor Relations Act to provide for regularly scheduled re-certification elections. The President and members of the House and Senate must face regularly scheduled re-elections. Why should exclusive bargaining agents be immune from the same democratic requirement?
If unionists defend winner-take-all exclusive representation over proportional representation by analogy with winner-take-all elections of members of Congress, consistency demands that they continue with it to its logical end—regularly scheduled re-certification elections.
The most common objection that American unionists voice against proportional representation is that it is too difficult for employers and unions to handle. With exclusive representation, things are much more orderly. Employers have to deal with only one union rather than many. I suspect that unionists will voice a similar objection to a requirement of regularly scheduled re-certification elections. It is just messy to have to go through another election every two or four years. It is more efficient to assume continued majority support.
This argument from efficiency and order is also used by Communist hard-liners in Eastern Europe and the Soviet Union against multi-party democracy. Mr. Walesa didn’t buy it in Poland. Notwithstanding his “union yes” ad, I doubt he would buy it here.