Protesters advocate $15-an-hour fast-food wages. Photo: AP
As we learned from the AFL-CIO's recent conference, organized labor has been rethinking its methods lately.
Unions have been in decline for years in the private sector, and now they're losing major political battles in the public sector, too. So, labor groups are trying a new strategy: Instead of going through the normal channels to win workplace elections and represent laborers officially, they are cobbling together as many participants as they can to stage strikes, hold protests, wage public-pressure campaigns, organize boycotts, and file lawsuits against employers. We saw this, for example, in the recent "$15 an hour" fast-food strikes, and in last year's Black Friday protests at Walmart.
It's called "alt-labor," and it has some union critics up in arms. In theory I ought to be joining them -- I'm the author of a long National Review story saying we should repeal the National Labor Relations Act, the cornerstone of private-sector unionization.
But I'm not. This is a terrific development for the freedom of contract. While one can reasonably criticize specific alt-labor groups in any number of ways, there's very little that's wrong with the idea of alt-labor itself. It's merely an example of people exercising their rights to promote their interests.
To begin with, it helps to understand what drives conservatives and libertarians crazy about traditional unionization in this country. The particulars vary from state to state, from public sector to private sector, and from industry to industry, but the most important factor is usually what's referred to as "collective bargaining": When a majority of workers vote to unionize, the union wins the legal right to represent all the workers. Once workers unionize, it's illegal for employers to negotiate directly with individual workers, even if neither the employer nor the worker in question has voluntarily agreed to this restriction. Employers are required to negotiate with unions in good faith. And once a contract is in place, unions are often entitled to dues or fees from all workers, including those who choose not to join. The entire system is rife with coercion.
Alt-labor groups, despite all they do to put pressure on employers, are different. They do not seek to represent workers by government force. There are still problems -- for example, labor law still grants the movement's protesters a right to strike without being fired -- but that in itself a huge improvement.
This is why Richard Berman of the Center for Union Facts has it backwards when he laments that, by operating as nonprofits rather than traditional unions, alt-labor organizations avoid having to comply with various regulations designed to protect workers from union abuse. These regulations exist in the first place as a way of balancing out the advantages that federal law gives to traditional unions. Since alt-labor groups do not benefit from these advantages -- they have no legal authority to represent nonconsenting workers or take their money -- workers (and for that matter employers) do not need special protection from them.
Other critics concede the potential benefits of alt-labor but claim that, underneath the facade, nothing has really changed. For example, the Mackinac Center's F. Vincent Vernuccio writes:
If the new labor organizations actually focused on the original intent of unions, namely, to serve their members -- if they acted as professional organizations offering à la carte services such as insurance, representation in contract negotiations, and the like, only to those workers who want those services, without using intimidation and political influence to achieve their goals -- that would be a good development for labor in America. But that’s not what is happening.
Instead, these worker centers are doubling down on the failed models of the past. As practiced so far, the alt-labor concept is focused not on beneficial workplace representation but on gaining more money for politics and on forming organizations that can strong-arm employers while [pressuring employers to recognize traditional unions through "card check" instead of a secret-ballot election]. The new groups are less about what is best for the worker and more about political power and cold, hard cash.
Well, sure: We free-market types wish that unions were going with the alt-labor approach out of a dedication to libertarian principle and genuine concern for their fellow man. Instead, they are choosing alt-labor because their other options are failing, and they are trying to preserve the power that they have.
But what does that mean, ultimately? Like it or not, unions and their supporters have a constitutional right to criticize employers publicly and to advocate anything they want in the political arena. They also have a right to pressure employers to recognize unions through card check. None of this can change so long as (A) there are people who share the beliefs of organized labor and (B) America remains a free country. We should be pushing to make unions play by a fair set of rules, and explaining why they're wrong when they say the minimum wage should be $15 an hour. It's pointless to wish, in effect, that labor agitation would disappear.
Another common thread of alt-labor criticism is that these groups often behave unacceptably during their protests. Vernuccio writes of a restraining order that Walmart won against two labor organizations (the alt-labor group OUR Walmart and the traditional UFCW union) to stop "activities such as picketing, patrolling, parading, demonstrations, 'flash mobs,' handbilling, solicitation, and manager confrontations."
It's true that in this case some picketers overstepped their legal boundaries. But the solution is quite simple: Make sure this kind of trespassing and harassment is illegal, and then enforce the law. It doesn't really have anything to do with alt-labor in particular.
The main problem with unions is not that they agitate for better wages and conditions and say bad things about corporations. It's not even that they sometimes break the law and need to be sanctioned for it. The problem is that for decades the government has been giving these organizations special legal privileges, severely limiting freedom of contract both for businesses and for workers who don't support unions.
The newest element of the labor movement is one that eschews most of these privileges, instead relying on basic constitutional freedoms to achieve its goals. Union critics should see that as a victory.
Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen