Is Sen. Josh Hawley (R-MO) actually a defender of worker freedom? On March 4, the senator, joined by Sen. Bernie Moreno (R-OH) and three Democrats, introduced a bill giving the government more power over the relationship between labor unions, workers, and job creators.
In doing so, Hawley, who opposes right-to-work laws, may be inadvertently laying the groundwork for a national version of that same policy, protecting private-sector workers across America from getting fired for not paying union fees.
Hawley’s Faster Labor Contracts Act, which the Teamsters union has already endorsed, is billed to stop employers from delaying negotiations with labor unions. Under current law, businesses and unions are required to negotiate in good faith, and there’s no deadline for an agreement because workers and job creators need time to reach the best deal.
Hawley’s bill would change that by forcing parties to negotiate on an aggressive timeline. Negotiations must begin within 10 days of a union’s demand to bargain. If an agreement hasn’t been reached within 120 days, 90 in direct negotiations and 30 under mediation, the Hawley bill empowers a government-mandated arbitration panel to impose a contract.
This is unprecedented in private-sector labor law. Collective bargaining agreements between unions and businesses are a private matter between two parties and no one else. Hawley’s bill creates a statutory process of binding arbitration by which the government effectively imposes terms on private parties. There’s a name for this: State action. And state action opens the door to a slew of constitutional requirements and restrictions, notably to protect the rights of free speech and association.
As the Supreme Court ruled in the 2018 case Janus v. American Federation of State, County, and Municipal Employees, Council 31, public employees have a constitutional right to opt out of paying union fees and can’t be required to do so. The 2014 case Harris v. Quinn applied this same logic to quasi-public employees — private workers who’ve been classified as government workers for bargaining purposes.
These cases brought right-to-work protections to public employees across the country, even in states such as California, Illinois, and New York. By creating statutory control over contracts for private-sector employees, the Hawley bill could bring similar protections to private-sector employees, so long as they’re covered by an agreement reached via binding arbitration.
Another Supreme Court case buttresses this argument. In the 1956 ruling Railway Employees’ Dept. v. Hanson, the court upheld a law that allowed businesses and unions to negotiate a “union shop” agreement. The court said the law didn’t implicate the Constitution because it merely allowed private parties to negotiate over certain terms. However, it implied that the result would have been different if those terms had been imposed by the government.
COMMERCE SECRETARY HOWARD LUTNICK IS OFF TO A TERRIBLE START
That’s exactly what Hawley’s bill would do — mandate every detail of an employee’s contract by government fiat. In addition to being able to opt out of paying a union, employees could likely challenge other provisions on constitutional grounds. Does a grievance system violate the Fifth Amendment right to due process? Does a drug testing regimen violate the Fourth Amendment right to privacy?
Hawley wants more government control over workplaces and collective bargaining, which can only come at the expense of workers and job creators. His first foray into enacting this vision through legislation could have the unintended consequence of enacting a long-standing Republican priority of worker freedom. That’s likely the opposite of what the senator wants, but the good news for workers is that the Constitution could protect them from this overreach.
F. Vincent Vernuccio is president of the Institute for the American Worker. Alexander T. MacDonald is co-chairmaa of the Littler Mendelson Workplace Policy Institute.
