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The union-management duopoly holds the American worker captive. Google Gemini image CC0 |
The case involved a school employees' union in Andover, Massachusetts (different school, same Andover, which has curious recent resonance, but that's another story). According to the court's recounting, the education union and Andover school committee discussed a one-time $800 payment to instructional assistants in negotiation, but the payment did not make into the contract.
After the contract was concluded, the union went to the Andover town meeting with a warrant article, a way for citizens to put items on the meeting agenda, and asked for the town's endorsement of the $800 payment. The town approved the measure, and the union then sought to enforce it with the school committee.
The school committee accused the union of bargaining in bad faith by, from the committee's perspective, going behind their backs to the town meeting to secure a term that had failed to make it through the negotiation. The union defended on the merits under state law requiring employers and unions to negotiate in good faith, and also defended on First Amendment grounds for its right to petition the town meeting.
The court ruled for the committee on both issues. The union had conducted itself in bad faith, and the First Amendment did not preclude application of the good faith requirement in state law.
I think both conclusions are wrong. And if they're not wrong as a matter of regulatory requirement and constitutional constraints, then, at minimum, the outcome is bad policy.
First, the court concluded, in agreement with the Commonwealth Employment Relations Board, that the union acted in bad faith. The court relied on prior examples in case law of "double crosses," accepting the premise that the union went behind the back of the school committee. The court used the word "bypass" three times, describing the union conduct as having "bypassed" negotiation with the committee. That's one way to look at it.
Another way to look at it is that the union "bypassed" nothing. The union negotiated in good faith and the bargain was concluded. Thereafter, the union used a different means to reach a desired end.
The warrant article was an extant feature of local government. Bargaining never took the warrant article off the table. If the school committee wanted to extract from the union a pledge not to seek the $800 payment through any alternative channel, or not to pursue warrant articles at all, then the committee could have put that ask on the table. Maybe the two would have settled on $400 instead of $800. We'll never know.
The union engaged in no deception. The union violated no term of the agreed upon contract. The union availed itself of a lawful process. Town voters were free to say to the union, "If you wanted that $800, you should have bargained for it in the contract." The town meeting was free to say no. Apparently, meeting voters rather agreed with the union that the negotiated contract needed an $800 enhancement. The school committee might ought search its soul to determine why the town meeting, another and more democratic part of the same local government, thought ill of the concluded terms.
Second, the court concluded that the "good faith" argument survived First Amendment strict scrutiny as applied. Following the example of the U.S. Supreme Court, the Appeals Court applied strict scrutiny prophylactically, as the former Court has not made clear whether the appropriate standard is strict scrutiny or something less.
The Appeals Court reasoned that labor peace is a compelling governmental interest under strict scrutiny, and that the good faith requirement, applied in this context, narrowly furthers the governmental interest in labor speaking with one voice in furtherance of an exclusive bargaining prerogative.
I can illustrate the problem with this reasoning with reference to my own workplace, where the university faculty is unionized.
Savory Tort readers will know that I am no fan of the union, and I am not a member. In 2020, amid the pandemic, the union that purported to represent me and all faculty colluded with the university to cut faculty pay. Over my objection, the union asked for progressive cuts that hit the higher compensation packages in the law school especially hard—for me, to the tune of 12%—while sparing others across the campus. That did not strike me as fair and equal representation of the members of the bargaining unit. So I sued.
Kudos to the Liberty Justice Center, which carried on the lawsuit magnificently. No fault of theirs, we lost. I expected that outcome in the heavily pro-union First Circuit. I always knew that the cause likely would be an uphill slog to the U.S. Supreme Court. And unsurprisingly, after having unsettled the waters in other respects in recent years, SCOTUS by the time we got there seemed to have lost its appetite for further forays into labor law. The Court passed on our appeal.
I'm content that I had the chance to get my story out there. And lo and behold, to their credit, the university later repaid the covid cuts to faculty. Did my lawsuit have anything to do with that? Did the university have to put its money where its mouth was on its declarations to the courts that alleged losses of aggrieved faculty were overblown? Well, ....
You're welcome, faculty and union. Though my thank-you card might have been lost in the mail—?
Like the Appeals Court in the instant case, the First Circuit demonstrated either ignorance or indifference to the reality on the ground. The analysis adopts the fiction that an exclusive bargainer represents the interests simultaneously of each and every worker, whose individual needs are uniform and fungible. Never would nor could the union act contrary to the interests of any minority class within the bargaining unit.
Fantasy.
There are plenty of faculty in my law school who, after seeing how the union treated us when the going got rough, are ready to vote ourselves out and into our own separate bargaining unit. The problem is that non-tenured faculty are afraid that the university will give us a raw deal as punishment for separating.
One might think that management would be delighted to see a union broken. Far from it. The exclusive bargaining prerogative of a unitary union preserves the status quo, keeping those in power in power, on both the union side and the management side. Multiple bargaining units would challenge the duopoly. One bargaining unit might gain an advantage over the other, and the other might try to leverage that advantage against management.
There's a term for that dynamic, by the way: "the free market."
In the law school, we might be able to form our own bargaining unit, to further our interests, if we could speak to the university and reach agreement that current contractual protections are a baseline, to which either party may retreat if going-forward negotiations fail on the first round.
However, the good faith standard binds management, as well as the union. The duopoly union-university, which does not want the hassle of a separate bargaining unit anyway, will claim that the good faith standard prohibits management from even speaking to minority interests. (I would disagree.)
The status quo is thus preserved indefinitely. And the consequence is that the union remains in power indefinitely, long past even the lives of its founding members, and despite its work at cross-purposes with the the legal obligation to serve the workers. The institution of the union becomes a thing apart from the workforce and hellbent on self-preservation.
I grant that the application of strict scrutiny, as in the instant case, is something of an "eye of the beholder" problem. If one thinks that "labor peace" as a compelling governmental interest means a power duopoly that binds workers to terms that are not in their best interests, then yes, I can see my way to preservation of exclusive voice as a means to that end.
I rather challenge the initial premise. "Labor peace" to me means a functional system in which workers and management have a meaningful opportunity to negotiate terms of employment. If that is the compelling governmental interest, and I contend that that is Congress's express purpose, then a rule applied so as to disarm both union and management from lawful means to advance their causes is hardly narrowly tailored to any legitimate end.
Yesterday's Appeals Court decision commits workers to imprisonment on the union-management hamster wheel. The loser is not so much the union, but the worker.
The case is Andover Education Association v. Commonwealth Employment Relations Board, No. AC 24-P-465 (Mass. App. Ct. Sept. 9, 2025). Justice Joseph M. Ditkoff authored the unanimous opinion of the panel, which also comprised Justices Desmond and Englander.
