Private-sector labor unions ought to be subject to First Amendment restrictions on government action. The widely publicized dispute over whether private social media platforms should be subject to First Amendment restrictions regarding viewpoint discrimination suggests similar questions arise in the case of private-sector labor unions under the 1935 National Labor Relations Act (NLRA as amended).
The social media debate concerns the extent to which there is entanglement between social media and government. If there is sufficient entanglement, social media become disguised government agents doing, at the behest of government, what government itself is forbidden to do.
The 2018 Janus decision by the Supreme Court freed all government employees from compulsory union dues on the grounds that such payments amount to compelled speech. The Court majority argued that the First Amendment prohibits the government from restricting or compelling speech, and government employment is direct government action.
However, the First Amendment does not apply to private speech, so private-sector employees do not enjoy the Janus protections. I conclude, on grounds of disguised government action, that Janus protections, and others, ought to extend to private-sector workers.
The NLRA governs all aspects of private sector unionism. Forced association [Section 9(a)], compulsory union dues [Section 8(a)3], and mandatory bargaining [Section 8(a)5], are key to the question of government-union entanglement and the applicability of the First Amendment.
Section 9(a) imposes “exclusive representation” on all private-sector workers in all fifty states. On the basis of a representation election, or even just a collection of signatures, the National Labor Relations Board, whose members are appointed by the president subject to approval of the Senate, certifies a union as the exclusive representative of all the employees of a private firm. The certified union has monopoly representation privileges, over union members and non-members alike. Individual employees are prohibited from choosing to represent themselves or from seeking another third party to represent them on matters concerning wages and other terms and conditions of employment.
The First Amendment prohibits government from abridging freedom of association, so the government cannot directly impose exclusive representation on private citizens. Section 9(a) disguises what the government does by creating the illusion of private-sector workers choosing exclusive representation by vote or signature. In the absence of Section 9(a) no private-sector workers who want to be represented by a union could impose that choice on workers who do not want such representation. Any private-sector employer could choose to operate under exclusive representation, but it is highly unlikely many of them would. And if they did it would be a private choice, not a government imposition. Section 9(a) is a disguised government action forbidden by the First Amendment.
Section 8(a)3 was added to the NLRA because of a problem emerging from exclusive representation. When a union represents workers who do not want such representation they might refuse to pay union dues. If so, such workers would allegedly be “free riders.” They would get the ostensible benefits of union representation without paying the union for it. So Section 8(a)3 allows employers and unions to agree to impose compulsory dues on all workers to pay for union representation whether they want it or not.
Given exclusive representation, some employers are willing to enter such compulsory-dues agreements because Section 8(a)5 compels employers to bargain with certified unions over wages and other conditions of employment. Under mandatory bargaining, employers have to give unions something during bargaining. So they give in expectation of receiving. A union may be willing, for example, to reduce its wage demands in exchange for a compulsory-dues agreement.
Section 8(a) 5 seems to be undisguised government action but unions claim that it is not because mandatory bargaining only involves certified unions, which are “chosen” by workers in representation elections and signature gatherings. As I argued above, these “choices” involve government action because of Section 9(a).
Notice that under Section 8(a)3 employers and unions are permitted to enter such agreements. They are not compelled to do so. So there is no government action here, right? But hold on. There would be no Section 8(a)3 if there were no government imposition of exclusive representation. Individual workers would be free to join any union they want for representation, and those freely chosen unions could charge their voluntary members for that representation. Individual workers could abstain from affiliation with any unions, and they would be free from union dues. It seems reasonable to conclude that all compulsory dues imposed under Section 8(a)3 are disguised government-imposed dues.
In sum it all comes down to exclusive representation – Section 9(a) in private employment and copycat sections of laws regulating government employment. The Janus case saved government workers from compulsory dues, but all government workers are still subject to exclusive representation notwithstanding direct government imposition.
The Supreme Court should directly address exclusive representation in both private and government employment. It may agree to hear such arguments in some appropriate future case.