Don't Destroy Union Regulations Because You Don't Understand Them
This week marks 75 years since Congress overrode President Truman’s veto and passed the Taft-Hartley Act, ushering in the modern era of union regulation. Since then, union leaders have fought to escape its confinements, their latest attempt being the “Protecting the Right to Organize” (PRO) Act. But over the last four generations, we’ve lost sight of the fact that Taft-Hartley was more about labor monopolies than anti-union sentiment.
Labor advocates are understandably worried about the future of unions, which have experienced a steady decline in relevance. In 1954, union membership peaked at 28.3 percent of workers. Today, that number is just 10.3 percent. Roughly half of those are government employees, meaning only 1-in-16 private sector workers is a union member.
But unions’ reliance on public sector employment became a liability after the 2018 Supreme Court decision in Janus v. AFSCME, which stopped unions from collecting dues from unwilling public sector employees. At least 340,000 workers quickly reclaimed part of their paychecks, and that number continues to increase despite noncompliance and byzantine opt-out restrictions.
The PRO Act, meanwhile, represents unions’ effort to resurrect private sector membership. Among other changes, it would undo Taft-Hartley’s Janus-style protection of non-union workers by removing states’ authority to restrict “agency shops.” This would allow unions in every state to demand labor contracts requiring that every employee be a member or at least pay agency fees. Under Taft-Hartley, most states chose the right-to-work model, mandating open shops where workers aren’t forced to pay a middleman just to have a job.
The PRO Act would also arbitrarily reclassify millions of independent contractors as employees of whomever they contract with. Unions are eager to sweep in and start unionizing gig economy workers, since Taft-Hartley forbade organizing independent contractors out of fear of creating a nationwide labor cartel.
But we should look before we leap. English philosopher G.K. Chesterton would advise us to understand why Taft-Hartley’s regulations were implemented in the first place. His parable, “Chesterton’s Fence,” recommends that before you remove a fence, you should know why it was built.
The fact that Taft-Hartley was passed over President Truman’s veto provides a clue that the original reason for the legislation was well-understood, even by pro-union Democrats in Congress. Previously, the National Labor Relations Act of 1935 (NLRA) had failed to build a framework for cooperative and mutually beneficial union-business relationships (as exist in some other countries). Rather, the NLRA all but ensured antagonism by granting a union that wins the majority of workers’ approval the privilege of exclusively representing every worker at the business — thereby giving unions monopolistic power over countless business’ and industries’ labor pools. The two parties struck an uneasy truce during World War II for patriotic reasons, but soon after, the gloves came off.
From the autumn of 1945 through 1946, union leaders enthusiastically wielded the disproportionate economic power they’d been granted by coordinating the largest strike wave the United States has ever seen. It created so much social disruption that the 1946 midterm elections saw Democrats lose both the House and the Senate after 16 years of New Deal-era control of the federal government. Public support for Taft-Hartley was so strong that a substantial majority of the remaining congressional Democrats voted in support of overturning Truman’s veto. Evidently, both parties saw unchecked union power as a problem.
One-quarter of states implemented right-to-work laws immediately afterward, and the number has gradually risen to 27 states today. The PRO Act would likely mean that just about every non-union worker at a unionized operation would have to pay up or lose their job.
However, the admonishment of Chesterton’s Fence doesn’t preclude reforming or modernizing Taft-Hartley. After all, workers should have the right to join unions, and unions can provide valuable representation and bargaining power. One compromise could combine eliminating unions’ remaining privilege of exclusive representation with developing a way for independent workers to sensibly organize without cartelizing. But simply attempting to rewind the clock to a previous flawed policy is just what it sounds like — a step backward.
Michael Farren is a senior research fellow with the Mercatus Center at George Mason University.
