Union membership in the United States has waned from its heyday, but if recent events have proven anything, it’s that unions still exert tremendous power over the economy writ large. How is this power checked in the United States and, more importantly, how should it be checked? 

At face value, unions, like any form of collective bargaining agreement are not inherently destructive.  In fact, they can be beneficial to both the workers and management. By having collective bargaining agreements, management can economize on the time it takes to settle contractual disputes with their employees – imagine Boeing, for example, having to negotiate with each of the 33,000 union members one-by-one. If each negotiation took a mere fifteen minutes to complete, it would take 8,250 man-hours of work just in negotiations.  Even if you had a team of fifty people doing nothing but negotiating with employees, it would take over a month of negotiations to get through everyone. But by being able to negotiate with a person representing all (or even just most) of the workers, management can save precious negotiating time, where nothing is being produced, and get workers back to work 

Some objectives of labor unions are purely procedural in that they seek to give employees a “voice” in the way employers manage the workplace.  This is especially true when it comes to matters of HR, such as job assignments, the composition of employee benefit packages, and the establishment of labor-management safety committees and work teams. 

But this is not all that unions seek. In a word, labor unions want “more.”  At least, this is what Samuel Gompers, founder of the American Federation of Labor, answered when speaking on this very topic in 1893. It is this constant quest for “more” that leads unions to move beyond the mere procedural demands and into the realm of economic demands.  For example, it is one thing to unionize in the quest for higher pay and greater benefits.  It is quite another for a union to demand a ban on all automation in order to prevent union jobs from being lost due to technological progress. 

The legal history of unions in the United States is complex but the bulk of the legal history of unions is dominated by two pieces of legislation: the National Labor Relations Act in 1935 and the Taft-Hartley Act in 1947. 

First, the National Labor Relations Act.  This law requires employers to bargain with unions that represent the majority of their employees and made it illegal for employers to interfere with their employees’ right to organize collectively. Essentially, the NLRA formally gave unions the power to negotiate with employers on their members’ behalf.  Prior to this, employers were free to simply refuse to negotiate with union leaders. 

After the Second World War, popular support for unions had waned in response to a spate of major union strikes in 1945 and 1946. In fact, in 1946 alone, over five million workers had participated in a strike at some point or another.  The Taft-Hartley Act was passed in response to this as a means of restricting some aspects of union activity and permitted workers to vote to decertify a union from representing them in collective bargaining.  This law also allowed states to pass right-to-work laws, which prohibit membership in a union as a requirement for employment.  In other words, in states which have right-to-work laws on the books, unions can no longer require that an employee join the union as a condition of employment. 

In addition to the above, the Taft-Hartley Act also allows the President to declare an 80 day “cooling off period.”  During this time, union leaders and management officials are required to come back to the table while workers resume their work.  Importantly, this law can only be invoked if the striking workers “imperil national health and safety.” 

It is this cooling off period which has received so much attention in the news as of late.  According to the Congressional Research Service, this law has been invoked 37 times since its passage in 1947.  Of these times, there have only been 9 instances where an agreement between employers and the union was not reached that resulted in a strike.  The other 26 times have led to a resolution (14 times), no injunction being filed (6 times), or no resolution but no strike (6 times). 

For all its bluster about protecting “national health and safety,” this law remains deeply problematic and reflects a collectivist approach to managing the economy. 

First, it violates the basic human right to not work.  In the case of the Longshoremen, their contract expired on September 30^th, meaning that they were not under contract with the United States Maritime Alliance.  Just as President Biden has no authority to force me to work for e.g. Amazon since I am not presently under contract with them, so too should he have no authority to force workers to work without a contract in place. 

However, even if the striking employees were under contract, the Taft-Hartley Act would still be unnecessary and inappropriate.  Courts already exist to adjudicate contract disputes and employers would have the legal standing to seek damages from the striking employees.  Filing an injunction against them not working would be redundant at best. 

Second, even if we set these concerns aside, it is already clear that the workers who are on strike do not want to work under their previous contracts.  Forcing workers to be somewhere they do not want to be for what they deem to be too little pay is a recipe for disaster in the form of shirking, mass sick-days, and other forms of labor slowdowns. 

Finally, it is useful to recognize that being on strike is not fun for either party.  In the case of the Longshoremen strike, the United States Maritime Alliance (USMX) certainly did not enjoying the fact that their workers were on strike. Workers certainly did not enjoy the strike, either.  In addition to potentially not being paid and having to dip into their savings in order to put food on their tables, they were marching outside holding signs and chanting.  Workers in Texas, for example, have been enduring temperatures exceeding 90 degrees.  This cannot be “fun” for them.  Because it is not fun for either side for there to be a strike, and because both parties benefit from cooperating with one another, both sides have a strong incentive to find an agreeable solution that will end this strike. 

In principle, a successful negotiation relies on a simple truism: both parties create surpluses when they work together. The key, as Barry Nalebuff argues in his book, Split the Pie: A Radical New Way to Negotiate, is to recognize the benefits of coming together and splitting the pie 50-50.  This requires an honest accounting of facts on both sides of the negotiation.  Importantly, it does not mean that they meet halfway between what one another are proposing.  

In the case of the ILA and USMX negotiations, an outright ban on automation is not only unreasonable, but not feasible.  Do we really wish to prevent a worker from implementing a new idea that makes them more productive and saves their fellow workers time or effort?  However, requiring workers to be on-call and only paying them if they get called in could be considered unreasonable, too.  Perhaps there is some middle ground here that could be reached whereby every worker who is on-call gets paid a per-diem stipend regardless of whether they get called in or not. This practice is not without precedent: the medical field is increasingly using a per-diem payment structure for their on-call physicians. 

So why did Biden not invoke Taft-Hartley in the Longshoremen case?  Maybe he agrees that doing so is wildly unethical. After all, he has publicly stated that he “[does not] believe in Taft-Hartley.” Surely, he believes that the law exists; perhaps he believes it is a power that presidents should not exercise. This would be troubling as, strictly speaking, it is his job as President to execute the laws as they are written and not to weigh in on the morality of laws. 

Perhaps he understood that both parties had a strong incentive to work together to find an acceptable solution and had faith that it would all work out quickly. In believing this, President Biden could argue that this did not constitute a strike that would imperil the nation’s health or safety and thus invoking the law would not have been warranted. 

More likely, it has to do with the upcoming presidential election.  If the self-described “most pro-union president” were to invoke Taft-Hartley it would be seen as him taking a decidedly anti-labor stance.  Not only would this be inconsistent with his branding, but it could hurt the electability of Kamala Harris at a time when Democrats and many Republicans are trying to present themselves as the advocates of blue-collar Americans, desperately trying to get union members to vote for them. 

By staying out of this, President Biden did the right thing, albeit most likely for the wrong reasons.  For a career politician, I’ll take what I can get.