The libertarian principle on which the legitimacy of labor unions depends is freedom of association. Any person has a natural right to associate with any other person or group for any purpose that does not trespass against the natural rights of third parties and provided the relationship is voluntary. Conversely, any person has a natural right to refrain from association with any other person or group no matter how fervently the other parties may desire the association. Labor unions that respect each person’s freedom of association are legitimate. American labor unions, formed and operated under the National Labor Relations Act (NLRA), are not. There are several reasons for this fact, but three are especially important.
First, the NLRA forbids workers individually to choose whether a union represents them in bargaining with employers about terms and conditions of employment. Instead, a union is granted monopoly bargaining (“exclusive representation”) privileges over all the employees of an enterprise whenever a majority of those employees votes for monopoly bargaining. A union that wins such a “certification election” represents all the workers who voted for the union, which is legitimate. However, the union also represents workers who voted against the union as well as those who did not vote. Individuals are forbidden to represent themselves. If a union represents you, you are associated with it. If you do not consent to the association, your freedom of association is violated.
Defenders of monopoly bargaining justify it by appeal to democracy. We choose our congressional representatives by majority vote; so, the defenders claim by analogy, it is proper to choose our workplace representatives in the same manner. But this analogy is specious. Forcing a numerical minority to concede to the will of a numerical majority might be an appropriate decision in questions that are inherently governmental such as the election of congressional representatives. Such force, however, is never justified in the private sphere of human action, such as the purchase and sale of one’s labor services. Moreover, the analogy is incomplete. Under the NLRA, a union that wins a certification election never has to stand for reelection.
Second, under the NLRA, a certified union can force all the workers it represents to pay fees for its representation services. These fees are called union security. It is legitimate for a union to charge those members who entered it voluntarily for its services, but it is not legitimate to force those who do not want the union to represent them to pay for its services. When you are forced to accept representation services you do not want, your freedom of association is denied. When you also are forced to pay for these services that you do not want, the trespass against you is compounded.
Defenders of union security justify these forced membership dues by appeal to the free-rider argument. They say that the NLRA forces a certified union to represent all the workers who were eligible to vote in the certification election. Therefore, when a union is successful in bargaining for better terms and conditions of employment, all workers, not just voluntary union members, receive those gains. If the other workers are not forced to pay for the union’s bargaining services, they would receive union-generated benefits for free, and that, the defenders argue, would be unfair. The counterargument is obvious. If unions represented only the members who voluntarily elect to be represented, there would be no free-rider problem. Union-generated benefits would accrue only to the workers they represent. This free-rider problem does not emerge from the inherent nature of employment relationships; it is an artifact of the NLRA.
Moreover, many workers consider themselves to be forced, not free, riders. A forced rider is one who receives net harms from some collective action and is nevertheless forced to pay the perpetrators for their activities. Whether a union bestows net benefits or net harms on a worker can only be revealed by the choices he makes as he exercises his freedom of association.
Third, under the NLRA, employers are forced to bargain in good faith with certified unions. The good-faith requirement means that an employer may not extend any take-it-or-leave-it offers. The only sure defense an employer has against a charge of failure to bargain in good faith is a record of making concessions. Parties to bargaining are associated with each other, thus forced bargaining is forced association. No one should be forced to bargain over any issue, and parties who agree to bargain should not be forced to make concessions during the process.
In summary, libertarians believe that each individual worker must be free to choose whether to be represented by a union prepared to represent him, by some other willing third party, or by representing himself. Each union must be free to choose which workers it agrees to represent, nor may any union, which represents only its voluntary members, force any union-free workers to pay any fees for any alleged services of any kind. Employers and unions representing voluntary members may choose to bargain and come to agreements based on mutual consent, but they may not be forced to bargain with each other. These relationships are the only ones consistent with a society of free individuals entering into free associations.
Baird, Charles W. Liberating Labor: A Christian Economist’s Case for Voluntary Unionism. Grand Rapids, MI: Acton Institute, 2002.
———. “Toward Equality and Justice in Labor Markets.” The Journal of Social, Political and Economic Studies 20 (1995): 163–186.
Dickman, Howard. Industrial Democracy in America. LaSalle, IL: Open Court, 1987.
Epstein, Richard A. “A Common Law for Labor Relations: A Critique of the New Deal Legislation.” 92 Yale L.J. 1357 (1983): 1357–1408.
Machan, Tibor R. “Some Philosophical Aspects of National Labor Policy.” Harvard Journal of Law and Public Policy 4 (1981): 67–160.
Reynolds, Morgan O. Power and Privilege: Labor Unions in America. New York: Universe Books, 1984.
Originally published .