No Representation without Consent – Not Even from Unions

When the American colonists complained that the British subjected them to taxation without representation, the British responded that the colonists’ interests were represented in Parliament. The colonists rejected that argument on the grounds that they didn’t consent to that representation. The principle of no taxation without representation doesn’t constrain government if government can impose unwanted representation. A second principle – no representation without consent – is needed to give the first its meaning as a claim of right. That second principle is also applicable to the representation of workers by unions.

A Tale of Two Unions

In France, eight percent of workers are union members, but 98 percent of workers are bound by the terms of employment that unions negotiate. (Good luck to President Macron in his quest for labor law reform.) While some workers may not care that unions represent them without their consent, it is likely that many more resent the fact.

In the US, 10.7 percent of workers are union members, while 11.9 percent of workers are covered (Table I, All Wage and Salary Workers) by union-negotiated terms of employment. While the discrepancy is much smaller than it is in France, the same urgent question demands an answer: should anyone be forced to accept representation services from any private entity against his or her will?

In France, unions get their privilege of forced representation from laws that command employers, even employers whose employees are union-free, to deal with “works councils” when forming the terms and conditions of employment (as well as other business decision-making). Those same laws require that unions be the sole representatives of workers in the councils. French law makes forced representation legal, but it does not make it right or just.

In the US, the unions’ forced representation privilege emerges from Section 9(a) of the National Labor Relations Act (NLRA). It is called “exclusive representation”: if a union gets at least 50 percent plus one of the workers in an enterprise to vote in favor of the union’s representation, then all workers therein must be represented by the union – even those who voted against such representation and those who abstained from voting. As in France, American labor law makes forced representation legal; it does not make it right or just.

Unions vs. the Constitution

Unions defend exclusive representation on the grounds that it is democratic. All workers get to vote, and therefore all workers are bound by the outcome. Furthermore, unions argue, it is routine for private organizations such as clubs and fraternal associations to make many decisions on the basis of majority vote. So why should union representation be different?

Because it is different: government forces union representation to be decided by majority rule. Majority rule in clubs and fraternal associations is adopted without government coercion. Democracy is a form of government, and unions are not governments. In a democracy, a numerical minority is forced to give way to a numerical majority on matters that are within the appropriate scope of government. No one claims that because we live in a democratic country, numerical minorities must give in to numerical majorities about whether to associate with a specific church, if any. The First Amendment takes that decision out of the appropriate scope of government.

The First Amendment also guarantees freedom of association. It takes the question of whether numerical minorities must give in to numerical majorities with respect to whether to associate with a specific, or any, labor union out of the appropriate scope of government. Yet the NLRA forces individual workers in a numerical minority to give in to the will of the other individual workers in a numerical majority on the question of union representation. The NLRA trumps the First Amendment.

When the Supreme Court upheld the constitutionality of the NLRA in its 1937 Jones & Laughlin decision, it did so on the basis of its reading of Congress’ power to regulate interstate commerce. It arbitrarily asserted that “commerce” included localized manufacturing, contrary to a century of rulings to the contrary. The Court ignored the issue of forced representation.

This decision is a notorious example of results-based, rather than principles-based, jurisprudence. President Franklin Roosevelt threatened to pack the Court if the Justices didn’t decide in his favor on the Jones & Laughlin case. The sad fact is that too many Supreme Court justices can, and too often do, make it up as they go along to bring about the results they want or think they need.

One Vote for All Time

The unions’ appeal to democracy to justify exclusive representation is embarrassingly disingenuous. Once a union wins a representation election, it never again has to stand for reelection. For example, there are no members of the United Auto Workers currently employed making cars in Detroit who voted on union representation. The UAW won elections in the 1930s and 40s, and all the workers who voted in those elections are retired or deceased.

In Wisconsin, Scott Walker’s Act 10 did away with this one-vote-for-all-time rule as it applies to Wisconsin’s government employees by stipulating that once-elected unions must stand for reelection on a regular basis – just like the members of the Wisconsin Legislature must stand for re-election on a regular basis.

The unions call Walker a union buster. I call him a worker protector.

The Employee Rights Act, originally proposed in 2011 and re-submitted in the current (115th) Congress, would, if adopted, do away with the one-vote-for-all-time rule for all private-sector unions. It would require a new representation election when there has been at least a 50 percent turnover among employees since the last election.

That would be nice, but it is not nearly enough. The only way to adequately solve the problem of representation without consent is to abolish exclusive representation. Sadly, no one in Congress or in the White House is proposing to do so.

As a last resort, unions defend exclusive representation on the grounds that collective bargaining would be “too complicated” if employers had to deal with more than one union as well as union-free individual workers. This is a merely utilitarian argument which ignores the no-representation-without-consent principle. Moreover, it is proven to be a lie because, prior to the adoption of the NLRA in 1935, members-only bargaining was routine and successful (Charles W. Baird, “Toward Equality and Justice in Labor Markets,” The Journal of Social, Political and Economic Studies Summer 1995: 163-186, available from the author on request as a pdf file) Never underestimate the power of entrepreneurship to discover simple solutions to seemingly complicated puzzles.

The Right to Work

Much has been written recently about right-to-work (RTW) laws. The NLRA gives states the power to stipulate that, within their respective jurisdictions, no private-sector worker represented by a union against his or her will can be forced to pay for the unwanted representation. Twenty-eight states have adopted such laws, including prior bastions of union privilege such as Michigan, which did so in 2013.

Forced payment for unwanted union representation by government-sector workers is under attack in the courts. Many think that had it not been for the unexpected death of Justice Antonin Scalia in 2016, such coerced takings would be illegal today, but there is another case on this issue heading to the Supreme Court. If the Court agrees to hear the case, it is likely that all government employees will soon have RTW protection against forced takings by the unions that represent them, especially since Justice Neil Gorsuch has replaced Justice Scalia on the Court.

There is even a National Right-to-Work Act under consideration in the current Congress. If passed, no private-sector worker in the US could be forced to pay for unwanted union representation. But the prospects for enactment of this legislation are poor. Unions, notwithstanding their 10.7 percent market share, have too much political power, just as they do in France.

It is crucial to understand that RTW laws do nothing about representation without consent. Even with such laws, workers are still forced to accept unwanted union representation; they just don’t have to pay for it. If exclusive representation were abolished, right-to-work laws would be irrelevant. Only voluntary union members would have to pay union dues to pay for the representation services they want, and unions would only represent their voluntary members. That is one characteristic of any society that deserves to be called free.

Charles W. Baird

Charles Baird is a professor of economics emeritus at California State University at East Bay.

He specializes in the law and economics of labor relations, a subject on which he has published several articles in refereed journals and numerous shorter pieces with FEE.

This article was originally published on FEE.org. Read the original article.

Behind closed doors: What the Piltdown Man hoax from 1912 can teach science today

In 1912, Charles Dawson, an amateur archaeologist in England, claimed he’d made one of the most important fossil discoveries ever. Ultimately, however, his “Piltdown Man” proved to be a hoax. By cleverly pairing a human skull with an orangutan’s jaw – stained to match and give the appearance of age – a mysterious forger duped the scientific world.

In the decades between the find’s unearthing and the revelation it was fraudulent, people in the United States and around the world learned about Piltdown Man as a “missing link” connecting ape and man. Newspaper articles, scientific publications and museum exhibitions all presented Piltdown Man as a legitimate scientific discovery supporting a particular vision of human evolution.

Historians, science writers and others have investigated the Piltdown Man controversy over the years, shedding new light on the fraud. As we reconsider the nature of “facts,” “fake news” and knowledge production, it’s worthwhile to revisit the Piltdown Man episode.

At issue was not just the deliberate hoax, but also the incomplete flow of information about the purported human ancestor. Soon after the discovery, access to the original materials in England was cut off by a few gatekeepers. Science is suffocated when researchers are unable to reliably corroborate claims made by others. The same issues arise today, with the research community grappling with what’s been called a reproducibility crisis; scientists need access to evidence and data in order to replicate (or not) research results. The Piltdown Man controversy lends support to the modern open science movement, with its call for transparency at every step of the scientific process.

Piltdown Man believers kept tight control over who could get an up-close look at the fossils. Arthur Keith is pictured in the white coat, Charles Dawson over his left shoulder.
John Cooke

Limited firsthand access

Experts immediately cited the discovery of a large human-like cranium with a primitive-looking, ape-like jaw as a major breakthrough. Influential anatomists such as Sir Arthur Keith hailed Piltdown Man as authentic. The popular press on both sides of the Atlantic described prehistoric archaeology as a dramatic hunt for a missing link and came to embrace Piltdown Man within an oversimplified framework of human evolution.

But there were some scientists – notably British Museum curator Reginald A. Smith – who were skeptical from the outset. Doubters noted the major find was attributed to a previously little-known archaeologist.

Curators in the United States impatiently hoped to learn more. But transatlantic requests were denied by their counterparts in Britain who controlled access to the cranium and jaw, moving the bones to a secure vault at the Museum of Natural History in London. Rumors swirled.

Controversial Smithsonian curator Aleš Hrdlička describes in an annual report traveling to England himself:

“Regrettably… the specimen was not yet available for examination by outsiders, and so no original opinion can be given concerning its status. It represents doubtless one of the most interesting finds relating to man’s antiquity, though seemingly the last word had not yet been said as to its date and especially as to the physical characteristics of the being it stands for.”

Early in the 20th century, provocative claims about discoveries commonly circulated through letters, rumors and splashy newspaper articles suggesting major new finds. American museums were simultaneously intrigued and frustrated by word of significant finds like Piltdown Man. Some claims proved to be genuine, while many others were found to be falsified or misleading. With limited information, it was especially difficult to determine the validity of claims made by scientists abroad.

News about major discoveries might change planned exhibitions about human evolution or prehistory at museums in New York or Chicago, or influence what students were taught about human history. Uncertainty plagued museums in this regard, as their scientists tried to view skeletons firsthand on visits to European museums and to secure good casts or copies for their own collections. Even amid growing doubts, a major exhibition in San Diego that opened in 1915 prominently featured a Piltdown Man sculpture.

What’s the damage done?

This lack of transparency resulted in an absence of accurate information in the scientific community.

It ultimately took until the later decades of the 20th century for the Piltdown bones to be fully discredited. The hoax was likely created by Dawson himself, though who exactly concocted the scam is still debated – “Sherlock Holmes” author Arthur Conan Doyle’s name has even been mentioned as a possible perpetrator.

As Berkeley anthropologist Sherwood Washburn offered in a letter, “My opinion is that if more people had seen the originals sooner the fake would have been recognized.” Confusion had arisen because so few scholars were granted access to the original evidence.

Part of what finally put Piltdown Man to rest was the nature of new discoveries emerging. They informed researchers’ developing understanding of the human past and began turning much scientific attention away from Europe toward Asia and Africa.

While it is impossible to know with certainty, the Piltdown Man episode likely slowed scientific progress in the global search for human ancestors. What is clear is that the claims worked to muddle popular knowledge about human evolution.

Piltdown Man’s lessons for today

Museums still display Piltdown Man replicas, not as science but as cautionary reminder.
Anrie, CC BY-SA

The unknown forger behind Piltdown Man intentionally misled the world about human evolution. The false claims rippled through the news media and museum exhibitions. Without access to reliable sources, in this case the original bones, the fraudulent story of Piltdown Man spread like a slowly building wildfire.

The Piltdown Man controversy hints at the dangers of drawing conclusions based on limited or emerging information, for both the public and scientists. In some ways, the whole episode foreshadowed threats we face now from fake news and the spread of misinformation about science and many other topics. It is hard to get to the truth – whether about a news story or scientific theory – without access to the evidence supporting it.

Certainly new information flows much more rapidly today – thanks to the internet and social media – potentially a partial corrective to the problems connected to misleading claims. However, scientists and others still need access to accurate and reliable information from original sources. With the Piltdown Man remains locked away in a secure museum vault, speculation and misinformation flourished.

Support is now building for an open access research model: When possible and appropriate, original materials, data and preliminary findings should be made available to others in the field. Scientists also work to balance how quickly they publish new research: It takes time to do careful work, but keeping finds hidden away for too long also impedes progress and understanding.

Excavations continue in the hobbit cave in Indonesia.
Bryn Pinzgauer, CC BY

Consider a 2003 find from Indonesia that was as shocking as the discovery of Piltdown Man: a nearly complete female skeleton researchers suggested was from a tiny human ancestor they called Homo floresiensis (commonly nicknamed “hobbit”). Media speculation ran wild early on about this new species added to our family tree, but paleoanthropology has evolved a great deal since Piltdown Man.

Scientists from several different groups worked to understand the discovery – seeking related finds and going back to the original fossils to systematically assess the claim. Soon additional detailed scientific publications began to emerge, allowing the scientific community to continue to add to the evidence and better scrutinize the discovery. To date, the teeth of at many as 12 individuals have been found.

Homo floresiensis are likely a genuinely groundbreaking discovery – hopefully the more transparent way the research unfolded makes this easier to untangle than Dawson’s claims a century ago. Thoughtful collaboration, making data available openly, more effective popular science communication and multiple channels of accurate information may help us better respond to the next Piltdown Man.

Samuel Redman, Assistant Professor of History, University of Massachusetts Amherst

This article was originally published on The Conversation. Read the original article.