The NLRB Is Attacking the Secret Ballot

P resident Biden’s appointees at the National Labor Relations Board are tilting the field in unions’ favor, having now decided unions can request recognition through a majority show of cards without secret-ballot elections. This is clearly unfair. The importance of secret ballots in a unionization vote is the same as in any other election: By keeping preferences secret, it protects against intimidation. Elections also allow workers to hear arguments against unionization, which is another reason support for unionization is rarely as high with a secret vote as with a card check.

The NLRB is shifting the burden to employers to petition the board for an election if it wants one. To make matters worse, the NLRB says if employers commit an “unfair” labor practice ahead of an election (such as promising improved benefits to employees if they reject unionization), then the results of the vote will be thrown out and the union automatically recognized. A reasonable person might conclude the party really practicing unfairness is the NLRB, by trying to impose unionization where workers do not want it and handcuffing employers who want to make a case to their workers about  the deleterious effects of unionization.

Union activists are of course delighted by the unfair advantages bestowed upon them. Unionization is, too often, a racket that, because it is so unproductive and so inefficient, relies on unfair advantages to survive. These include unbalanced labor-relations rules, tariffs or other protection, massive government-spending programs that give preferential treatment to union shops, special subsidies, and other forms of government privilege. That 33 percent of public-sector workers are union members, compared to only 6 percent in the private sector, is well-nigh conclusive evidence that the union model is economically uncompetitive.

As a matter of basic economics, wages, like other prices, are determined by supply and demand. But unionization does not increase employer demand for labor and actually makes workers less productive by protecting the less hard-working and breaking the link between worker output and compensation. The union agenda therefore relies on government actions that either restrict labor supply or manufacture artificial demand for union labor. In both cases, coercion by union organizers of workers who are not part of the union or who do not want to join the union, and of businesses, is necessary.

The coercive streak of unions is why libertarian economists who do not typically tell individual workers and businesses how to arrange their affairs look askance at unionization. Hayek’s chapter on unions in The Constitution of Liberty and Milton and Rose Friedman’s chapter on worker protection in Free to Choose are both strongly anti-union. “Workers can raise wages above the level that would prevail on a free market,” Hayek explained, “only by limiting the supply.” In other words, unions must shut some workers out of jobs they want.

Hayek’s objection to unions was not primarily that they were bad for business, but that they were bad for workers, arguing, “It cannot be stressed enough that the coercion which unions have been permitted to exercise contrary to all principles of freedom under the law is primarily the coercion of fellow workers. Whatever true coercive power unions may be able to wield over employers is a consequence of this primary power of coercing other workers.” Those were strong words when The Constitution of Liberty was first published in 1960; the NLRB in 2023 now strengthens Hayek’s argument.

“A successful union,” the Friedmans similarly wrote in Free to Choose, “reduces the number of jobs available of the kind it controls. As a result, some people who would like to get such jobs at the union wage cannot do so. They are forced to look elsewhere. . . . Higher wages to one group of workers must come primarily from other workers.” The basic source of union power, they concluded, is their “ability to keep down the number of jobs available,” which is done “generally with assistance from government.” In other words, done through coercion. Unfortunately, when some people are given the power to coerce other people, this arrangement rarely benefits the disadvantaged.

This reality of unionization runs contrary to the narratives emanating from union headquarters and progressive politicians, who claim unions have benefited all workers, including those not unionized, because they are responsible for eliminating child labor, establishing weekends, fighting for benefits and minimum wages, and so on. But in reality, it is higher productivity that makes possible increases in non-wage benefits (such as working five days a week instead of seven), and while the AFL-CIO claims that “the minimum wage was designed to create a minimum standard of living to protect the health & well-being of employees,” it may want to examine its role in the creation of the minimum wage in America.

The United States’ first minimum-wage law was the Davis-Bacon Act of 1931, which set minimum wages on federally financed construction projects. William Green, president of the American Federation of Labor at the time, argued in its favor by complaining that “colored labor is being sought to demoralize wage rates.” Politicians who supported the bill also made plain during legislative debate that the intention of the bill was to price black construction workers out of jobs.

Oppression and coercion have long been part of the union playbook, whether they are trying to price disadvantaged workers out of the job market through wage floors to reduce competition, or hoping to impose unionization on workers who do not want it. By rewriting labor law to deny secret-ballot elections, the NLRB further empowers certain privileged members of the labor force looking to coerce their fellow workers.