Poltroons on the Beach: The Fraud of the Labor Peace Argument for Compulsory Public Sector Collective Bargaining By: Edwin Vieira, Jr.

The prevalent legal wisdom today is that compulsory collective bargaining through exclusive representation is necessary in both private and public employment, because such bargaining is the best way to achieve so-called "labor peace". As with much of the legalistic knowledge percolating from within the Beltway and academia throughout contemporary America, this notion—notwithstanding its widespread acceptance among the mainstream of judges, labor lawyers, and legal commentators—is fundamentally flawed. In private employment, the "labor-peace" theory found perhaps its highest pseudo-scholarly apology in the famous work by Felix Frankfurter and Nathan Greene, The Labor Injunction. Eventually, this piece of propaganda was thoroughly debunked by Petro, but not before it had done its damage in rationalizing the Norris-LaGuardia Act and analogous State laws that promote and immunize union violence. And even today the errant thesis of The Labor Injunction is accepted as gospel by most people. In the public sector, too, the "labor-peace" theory is little more than a legalistic smokescreen—one of those terms judges and lawyers employ to defuse contrary argument and short-circuit critical thought. To any careful observer, this is so obvious that the "labor-peace" theory merits being labelled essentially fraudulent. Moreover, the responsibility for perpetrating and perpetuating this fraud on the country lies primarily with the Supreme Court of the United States.

I. Nowhere is the inherent fraudulence of the "labor-peace" theory more apparent than in the Supreme Court’s devious refusal to address—squarely and honestly—the serious constitutional issues that compulsory public-sector collective bargaining through exclusive representation raises. To appreciate this requires a review of the history of litigation on that question from the 1930s, through which the legal landscape of employment relations was so decisively altered.

In both the public and the private sectors, contemporary collective bargaining under statutes and court decisions differs from traditional collective bargaining under common law prior to the 1930s, in that the latter was voluntary, whereas the former is compulsory. Free collective bargaining involved negotiations between willing parties on both sides: Employees freely chose unions to bargain for them; and employers freely chose to bargain with those unions rather than with individual employees. Except in the public sector, where collective bargaining was generally—and quite correctly—disallowed as incompatible with governmental sovereignty, free collective bargaining was always and everywhere an option for employees and employers at common law. Sometimes it proved more desirable to the parties than individual bargaining, sometimes not. In any event, prior to the National Industrial Recovery Act in 1933, the status of an exclusive representative empowered by law to dictate the terms and conditions of employment for dissenting nonunion employees was unknown in American private enterprise or in public employment. Rather, employees’ exposure to majority rule by unions depended on voluntary association under the principles of common-law contracts. And had the Supreme Court not duplicitously retreated on the statutory construction it originally employed to uphold the constitutionality of the Railway Labor and the National Labor Relations Acts, something not very far from free collective bargaining might have evolved under those statutes as well.

In contrast, modern compulsory collective bargaining involves three components unknown at common law—two primarily affecting employees; the third, employers—and all of which rely on coercion. As to employees, the basic structural element of compulsory bargaining is exclusive representation. The union selected by a majority of employees in a bargaining unit becomes the exclusiverepresentative for all the employees for the purposes of negotiating their terms and conditions of employment, whether they desire its services or not. For an employer to negotiate or contract with individuals violates "the essential principle of collective bargaining", "even though the employees consent * * * or suggest the conduct". Under exclusive representation, "[i]ndividual contracts, no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed" for collective bargaining, "to forestall bargaining[,] or to limit or condition the terms of the collective agreement". So, in stark contrast to—indeed, in contradiction of—common-law contractual rights, exclusive representation "extinguishes the individual’s power to order his own relations with his employer and creates a power vested in the chosen representative", "strip[s individual employees] of traditional forms of redress", and gives unions "a thraldom over the men who designate [them]" by "creat[ing] rights in [the] unions overriding those of the employees they represent".

With respect to employers, the basic structural element of compulsory bargaining is exactly that: a legally enforceable duty on the part of the employer to bargain with the union over terms and conditions of employment, and not to bargain with nonunion employees.

As known and suffered today, compulsory collective bargaining through exclusive representation is primarily the artifact of decisions of the Supreme Court that intentionally created the system as it now exists or carried that system to the extreme it has assumed, in the face of and with disregard for numerous constitutional problems. Moreover, having itself largely created the original problem of exclusive representation in the 1940s, the Supreme Court has in more recent years studiously attempted to avoid not only facing up to the deleterious consequences of its own actions, but even telling the truth about how its own decisions brought the country to this pass.

Although ideologically the story has much earlier roots, the consequential, if convoluted, legal history begins in 1993 with the National Industrial Recovery Act (NIRA). The NIRA authorized private "trade or industrial associations or groups" to apply to the President of the United States for approval of "codes of fair competition for [their] trade or industry", made these codes "the standards of fair competition for [each] such trade or industry" upon the President’s authorization, and imposed sanctions on violators. The statute also required "[e]very code of fair competition" to contain provisions for organization of unions and collective bargaining within the particular trade or industry, and gave "the standards established in [collective-bargaining] agreements * * * the same effect as a code of fair competition". The sole substantive requirement on the private "associations or groups" privileged to act as exclusive representatives of their respective trades or industries was that they "impose no inequitable restrictions on * * * membership * * * and are truly representative of such trades or industries". This was similar to the so-called "duty of fair representation" that the Supreme Court later imposed on unions acting as exclusive representatives under the Railway Labor and National Labor Relations Acts.

In A.L.A. Schechter Poultry Corp. v. United States, the Supreme Court unanimously declared the NIRA an unconstitutional delegation of legislative power to private parties. To the government’s argument that the codes were valid because they "consist of rules of competition deemed fair for each industry by representative members of that industry * * * most vitally concerned and most familiar with its problems", the Court retorted:

[W]ould it be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for * * * their trades or industries? Could trade or industrial associations or groups be constituted legislative bodies for that purpose because such associations or groups are familiar with the problems of their enterprises? * * * The answer is obvious. Such a delegation of legislative power is unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress.

Shortly thereafter, Congress enacted the Bituminous Coal Conservation Act (BCCA). The BCCA authorized the organization of private "district boards of coal producers" as exclusive representatives for their segments of the industry, empowered the boards to fix prices and regulate "the sale and distribution of coal by code members" subject to approval by a commission of the national government, and imposed sanctions on dissenters. The BCCA also mandated collective bargaining "between representatives of the majority of mine workers [in each district]" to fix terms and conditions of employment for all workers.

In Carter v. Carter Coal Co., the Supreme Court declared the BCCA an unconstitutional delegation of legislative power to private parties. Referring specifically to the provisions of the statute providing for exclusive representation among employees, the Court observed that

[t]he effect, in respect of wages and hours, is to subject the dissentient minority * * * of * * * miners * * * to the will of the * * * majority * * * .
The power conferred upon the majority is * * * the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. * * * [Astatute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property.

And, as Chief Justice Hughes added,

[t]he provision [for exclusive representation] permits a group of * * * employees, according to their own views of expediency, to make rules as to hours and wages for other * * * employees who are not parties to the agreements. Such a provision, apart from the mere question of delegation of legislative power, is not in accord with the requirements of due process of law.

Thus, Schechter and Carter held that the government may not constitutionally require private persons to submit their economic affairs to the control of exclusive representatives selected from among other private persons in the same industry or employment, notwithstanding that the highest public officials in the land supervised the selection and decisions of the representatives. 

Although little known today among most people, including lawyers, Schechter and Carter were among the most important cases of the 1930s, demolishing as they did one of the main pillars of the Roosevelt New Deal (the cartelization of private industry). Moreover, on the question of exclusive representation for employers and employees they were unequivocal: Exclusive representation was "a delegation of legislative power * * * unknown to our law and * * * utterly inconsistent with the constitutional prerogatives and duties of Congress", "legislative delegation in its most obnoxious form", "an intolerable and unconstitutional interference with personal liberty and private property", and even "apart from the mere question of delegation of legislative power * * * not in accord with * * * due process of law". One wonders how a constitutional condemnation could be phrased in language stronger and less equivocal than this.

Until a by-the-way, wholly unexplicated comment in Minnesota State Board for Community Colleges v. Knight (Knight II), any legally trained observer would have concluded that the holdings in Schechter and Carter remained as directly relevant to every form of governmentally imposed exclusive representation, and as intellectually valid and legally vital, as when the Court enunciated them. Moreover, where, as in public employment, political as well as economic interests were involved, these decisions should have been considered to have had a particularly compelling force.

Between Schechter and Carter, on the one hand, and Knight II, on the other, the unconstitutionality of exclusive representation in both private and public employment escaped judicial review on numerous occasions. In a challenge to the constitutionality of the Railway Labor Act (RLA) in Virginian Railway v. System Federation No. 40, the Supreme Court sidestepped the problem of exclusive representation in two ways: First, to the railway’s argument that,

[i]f the Act empowers the majority [of employees] to speak for the minority, it in effect delegates to the majority the right to prevent the [employer] from making a contract with the minority which the minority may be willing to make. A somewhat similar delegation to the majority of power to bind the minority was recently condemned by this Court in Carter v. Carter Coal Co., 298 U.S. 238[,]

the Court responded that "[t]he railroad can complain only of the infringement of its own constitutional immunity, not that of its employees". So that issue remained unheard.

Second, the Court held as a matter of statutory construction that exclusive representation was "exclusive" in only a narrow way. The RLA’s provision for exclusivity, the Court opined,

imposes the affirmative duty [on the employer] to treat only with the true representative [of the employees], and hence the negative duty to treat with no other. We think, as the Government concedes in its brief, that the injunction against [the employer’s] entering into any contract concerning rules, rates of pay and working conditions, except with [the majority union], is designed only to prevent collective bargaining with anyone purporting to represent employees, other than [the majority union], who has been ascertained to be their true representative. When read in this context it must be taken to prohibit the negotiation of labor contracts, generally applicable to employees * * * , with any representative other than [the majority union], but not as precluding such individual contracts as [the employermay elect to make directly with individual employees.

The Court did, however, uphold the constitutionality of compulsory collective bargaining itself (through "nonexclusive exclusive representatives") on a "labor-peace" theory:

[W]e cannot ignore the judgment of Congress * * * that * * * the meeting of employers and employees at the conference table is a powerful aid to industrial peace. 
[The] provisions [of the RLA] are aimed at the settlement of industrial disputes by the promotion of collective bargaining * * * . It was for Congress to make the choice of the means by which its objective of securing the uninterrupted service of interstate railroads was to be secured, and its judgment * * * is not open to review here.

Noteworthy is that the Court did not investigate, but simply deferred to, the judgment of Congress—not even bothering to define what "industrial peace" meant or to identify what party was responsible, in the sense of incurring some legally cognizable fault, for its absence.

For example, it was, and today still is, generally assumed that the cause of industrial unrest, disputes, and even violent strikes prior to the advent of compulsory collective bargaining in the 1930s can or should be traced to the refusal of employers voluntarily to accept the procedure of collective bargaining with unions. As the Supreme Court said in NLRB v. Jones & Laughlin Steel Corp.,

the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife.

Even if that description of the situation were true—and, of course, it was never completely true, because even under common law many employers did choose to bargain collectively with unions—it would not inexorably lead to the conclusion that employers were somehow uniquely at fault, for two reasons. First, prior to the 1930s employers had a legal right to refuse to bargain collectively, and instead to bargain individually, with their employees. Second, individual bargaining succeeded because many employees did not desire to be represented by unions, which was their legal right, too. After all, employers could hardly bargain individually with employees unless those employees voluntarily bargained with them.

The dispute over collective bargaining in the 1930s, then, was never a matter of employers’ as a class unilaterally denying the "rights" of employees or of unions as a class, but of many employers’ and many employees’ standing together on their own legal rights against the demands of other employees and their unions. Indeed, if employers and employees exercised their then-undoubted common-law rights to bargain individually, unions and their members had by legal hypothesis no rights as against those employers and employees to bargain collectively. So, to the extent that industrial unrest did result from the refusal of employers and employees to accept the procedure of collective bargaining, its cause can just as easily be assigned to the refusal of unions and their members to accept the traditional common-law procedures of voluntary, free-market bargaining and contract, but instead to demand that employers and employees surrender their rights and knuckle under to the coercive device of exclusive representation.

In any event, no one in the early 1930s, and especially after Schechter and Carter, believed that exclusive representation was easily defensible as consistent with American economic or legal traditions. Indeed, so sure were even its partisans of the opposite, that, when the constitutional validity of the National Labor Relations Act (NLRA) was first at issue in the mid-1930s, the National Labor Relations Board intentionally selected its test cases to keep the sensitive question of exclusive representation from the Court. The Labor Board’s brain trust well recognized the significance of Carter as an adverse precedent.

This strategy bore fruit, probably saving the NLRA from invalidation. For in NLRBv. Jones & Laughlin Steel Corp. the Court followed the reasoning of Virginian Railway to hold, as a matter of statutory construction, that exclusive representation under the NLRA was analogous to exclusive representation under the RLA, and not really "exclusive" at all.

The decree * * * affirmed in [Virginian Railway] required the Railway Company to treat with the representative chosen by the employees and also to refrain from entering into collective labor agreements with anyone other than their true representative as ascertained in accordance with the provisions of the [RLA]. We said that the obligation to treat with the true representative was exclusive and hence imposed the negative duty to treat with no other. We also pointed out that, as conceded by the Government, the injunction against the Company’s entering into any contract concerning rules, rates of pay and working conditions except with a chosen representative was "designed only to prevent collective bargaining with anyone purporting to represent employees" other than the representative they had selected. It was taken "to prohibit the negotiation of labor contracts generally applicable to employees" in the described unit with any other representative than the one so chosen, "but not as precluding such individual contracts" as the Company might "elect to make directly with individual employees." We think this construction appliles to [the provision for exclusive representation] of the [NLRA].

As in Virginian Railway, this holding reflected the unanimous position the litigants—including the government—presented on the issue of exclusivity.

As in Virginian Railway, however, the Court in Jones & Laughlin Steel Corp.upheld the constitutionality of compulsory collective bargaining on the "labor-peace" theory that

[e]xperience has abundantly demonstrated that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife.

Once again, though, the Court did not inquire into what "industrial peace" entailed, either operationally or legally. However, in the context of then-contemporary events, it was obvious that the Court was alluding to the often violent strikes and lockouts that had occurred during the early 1930s in the depths of the Depression.

In the mid-1940s, however, in two cases that raised only issues of statutory construction and application—J.I. Case Co. v. NLRB and Order of Railroad Telegraphers v. Railway Express Agency, Inc.—the Supreme Court purported to reinterpret the NLRA and RLA so as to preclude individual employment contracts in most circumstances. Revealingly, neither of these decisions bothered to reconsider—or even to delineate—the constitutional issues of exclusive representation raised and avoided in Virginian Railway and Jones & Laughlin Steel Corp., and how those issues (and particularly their avoidance) had controlled the statutory constructions the Court employed in the latter two cases. And this, notwithstanding that the statutory constructions in Jones & Laughlin Steel Corp. and Virginian Railway had served as the necessary predicates for those cases’ constitutional holdings, and had been put forward by the government itself as the interpretation on which it claimed the constitutionality of the statutes rested.

Rather cavalierly, the Court in J.I. Case Co. acknowledged what it was doing, but did it anyway, without explication of its reasons:

[I]t is urged that where * * * the contracts [with individual employees] were not unfairly or unlawfully obtained, the court indicated a contrary rule [of statutory construction] in [Jones & Laughlin Steel Corp. and Virginian Railway]. Without reviewing those cases in detail, it may be said that their decision called for nothing and their opinions contain nothing which may be properly read to rule the case before us. The court in those cases recognized the existence of some scope for individual contracts, but it did not undertake to define it or to consider the relations between lawful individual and collective agreements * * * .

Having redefined exclusive representation in J.I. Case Co. and Order of Railroad Telegraphers, though, the Court ought to have considered itself duty-bound to determine whether that new construction raised the very constitutional problems its earlier constructions of the statutes had been designed to avoid. Instead, it simply avoided the issue, conveniently "[w]ithout reviewing those cases in detail". For "review[ of] those cases" would doubtlessly have embarrassed its new agenda. To call this transparent tactic on the Court’s part a rather crass use of the "bait and switch" gambit is hardly harsh.

However, the Court did find space in its opinion in J.I. Case Co. to reassert a "labor-peace" rationale for its new construction of exclusive representation: "The practice and philosophy of collective bargaining looks with suspicion on * * * individual advantages. * * * [A]dvantages to individuals may prove as disruptive of industrial peace as disadvantages." But precisely why "advantages to individuals", honestly obtained, should be legally suspect—and, in fact, legally proscribed, as J.I. Case Co. and Order of Railroad Telegraphers held—simply because "[t]he practice and philosophy of collective bargaining * * * looks" on them that way the Court did not feel compelled to explain.

The contemporaneous decision in Steele v. Louisville & Nashville Railroad Co.also sidestepped the (un)constitutionality of exclusive representation in private-sector employment by imposing on unions the so-called "duty of fair representation" as to nonunion employees, in order to avoid the particular issues of due process and equal protection of the law that exclusive representation raised in that case. The Court explained that

the [exclusive] representative is clothed with power not unlike that of a legislature which is subject to constitutional limitations on its power to deny, restrict, destroy or discriminate against the rights of those for whom it legislates and which is also under an affirmative constitutional duty equally to protect those rights. If the Railway Labor Act purports to impose on [nonunion employees] the legal duty to comply with the terms of a [collective-bargaining] contract whereby the representative has discriminatorily restricted their employment for the benefit and advantage of the [union’s] own members, we must decide the constitutional questions * * * .

However, dodging those questions, the Court concluded that

the Railway Labor Act imposes on the * * * representative * * * at least as exacting a duty to protect equally the interests of the members of the craft as the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates. Congress has seen fit to clothe the representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents, * * * but it has also imposed on the representative a corresponding duty.

In his concurring opinion, Justice Murphy followed the same strategy, observing that the

constitutional problem inherent in this instance is clear. Congress, through the Railway Labor Act, has conferred upon the union * * * the power to represent the entire craft * * * in all collective bargaining matters. While such a union is essentially a private organization, its power to represent and bind all members of a class * * * is derived solely from Congress. * * * [I]t cannot be assumed that Congress meant to authorize the representative to act so as to ignore rights guaranteed by the Constitution. Otherwise the Act would bear the stigma of unconstitutionality under the Fifth Amendment * * * .

Thus, both the Court’s and Justice Murphy’s opinions set out rather clear-cut recognition of the problem of delegation of legislative power that had formed the predicates for Schechter and Carter:

Congress has seen fit to clothe the representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents * * * .
While such a union is essentially a private organization, its power to represent and bind all members of a class * * * is derived solely from Congress.

However, as in Virginian Railway and Jones & Laughlin Steel Corp., the Court avoided the delegation-of-power issue through clever statutory construction—namely, cutting from whole cloth the duty of fair representation.

In Steele, this artful-dodger approach was possible because the complaining nonunion employees sought either nondiscriminatory representation by the union or a judgment that they could not be required to accept the union’s control over their employment relations, but did not argue that nondiscriminatory exclusive representation in and of itself was unconstitutional. The nonunion employees asked for "an injunction against the [union] * * * from purporting to act as [their exclusive] representative * * * so long as the discrimination continues". Thus, Steele left completely open the question of the constitutionality of concededly nondiscriminatory exclusive representation. Indeed, Steele’s construction of exclusive representation as implying a duty of fair representation would have been perfectly consistent with a determination in that or some other case that exclusive representation is unconstitutional on grounds other than the presence of invidious discrimination. For example, Schechter held the NIRA unconstitutional on delegation-of-power grounds, notwithstanding that that statute contained an explicit duty of fair representation.

The next case to touch on (although not to decide any aspect of the constitutionality of) exclusive representation, City of Madison, Joint School District No. 8 v. Wisconsin Employment Relations Commission, arose in the public sector. There, the Court held that a State may not constitutionally require an elected board of education to prohibit a nonunion teacher from speaking at a public meeting on a matter then the subject of collective bargaining between the board and the teacher’s exclusive bargaining representative. The constitutionality of exclusive representation itself, however, was in no way at issue. Indeed, the Court found it unnecessary to define "the extent to which true contract negotiations between a public body and its employees may be regulated". Nevertheless, the Court held that, "[r]egardless of the extent to which true contract negotiations between a public body and its employees may be regulated—an issue we need not consider at this time—the participation in public discussion of public business cannot be confined to one category of interested individuals. To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis of constitutional guarantees."

One would have thought that the rather self-evident and quite unequivocal point—that "[t]o permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis of constitutional guarantees"—would have seriously undermined the validity of exclusive representation in public-sector employment, inasmuch as exclusive representation in that context is operationally nothing if not "[t]o permit one side of a debatable public question to have a monopoly in expressing its views to the government". Nonetheless, in a concurring opinion in City of Madison, Justice Brennan claimed that

Wisconsin has adopted, as unquestionably the State constitutionally may adopt, a statutory policy that authorizes public bodies to accord exclusive recognition to representatives for collective bargaining chosen by the majority of an appropriate unit of employees. In that circumstance the First Amendment plainly does not prohibit Wisconsin from limiting attendance at a collective-bargaining session to school board and union bargaining representative and denying [an individual nonunion employee] the right to attend and speak at the session.

One wonders by what chain of reasoning, in light of the rather clear-cut litigational history of exclusive representation set out heretofore, anyone—let alone a Justice of the Supreme Court—could opine with a straight face that exclusive representation was "unquestionably" or "plainly" constitutional in any respect, least of all under the First Amendment.

For Justice Brennan, though, the liceity of compulsory bargaining through an exclusive representative was apparently "implicit in the words of Mr. Justice Holmes, that the ‘Constitution does not require all public acts to be done in town meeting or in assembly of the whole.’ Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 445 (1915)". As anyone—even a Justice of the Supreme Court—can conclude simply by reading Bi-Metallic Investment Co., however, that case in fact had nothing whatsoever to say about the constitutional problems exclusive representation raises. Neither could it have had anything to say about those problems. For Bi-Metallic Investment Co. was decided two decades before statutory union representation came into existence in the Railway Labor and National Labor Relations Acts, and three decades before the Supreme Court transmogrified the essentially non-exclusive representation upheld in Virginian Railway and Jones & Laughlin Steel Corp. into the strictly exclusive representation common in the private and public sectors today. Thus, the length of Justice Brennan’s reach for a supposed precedent rather "unquestionably" and "plainly" exposed his own recognition sotto voce that no real authority for exclusive representation existed either temporally or intellectually.

The next case to touch on (but, once again, not to decide any aspect of the constitutionality of) exclusive representation was Abood v. Detroit Board of EducationAbood held that an agency-shop arrangement in public-sector employment did not, on its face, violate the First and Fourteenth Amendments to the Constitution—although such a scheme could possibly abridge individual nonunion employees’ fundamental rights as applied.

Abood neither decided, nor even addressed, the issue of the unconstitutionality of exclusive representation, because that issue was not raised in the case in any way, shape, or form. The nonunion employees did not challenge exclusive representation in their original or amended complaints. The lower courts did not rule on any constitutional question touching on exclusive representation. The parties did not present any such constitutional question to the Supreme Court. Indeed, to the contrary, the nonunion employees explicitly stated that their "appeal * * * does not raise the question of the unconstitutionality of exclusive representation in public employment". "Therefore," the nonunion employees told the Court, "we must and shall refrain from addressing the merits of that issue [i.e., exclusive representation], secure in the knowledge that they will wend their tortuous way to this Court, sooner or later." "We repeat: Our concern here is notto attack the principle of exclusive representation as such." And the union agreed that the nonunion employees "do not challenge" exclusive representation. Moreover, Justice Stewart’s plurality opinion in Abood stated the question before the Court as being "whether [an agency shop] arrangement violates * * * constitutional rights", and held that "[a]ll we decide is that * * * the complaint * * * establish[es] a cause of action" with respect to the agency shop. Therefore, if (as they did) the nonunion employees’ complaints challenged only the agency shop (and not exclusive representation), if (as they did) the parties litigated only the constitutionality of the agency shop (and not exclusive representation), if (as they did) the parties explicitly stated that no challenge to exclusive representation was before the Court, and if (as it did) the Court itself held no more than that "the complaint[s] establish[ed] a cause of action" as to the agency shop, then a constitutional ruling on exclusive representation in Abood was not legally possible.

Not surprisingly, therefore, none of the opinions in Abood focussed on the constitutionality vel non of exclusive representation. Justice Stewart’s plurality opinion referred to various responsibilities of an exclusive representative in collective bargaining, in order to set out the traditional "free-rider" rationale for the agency shop. However, he cited no decision of the Supreme Court that had sustained exclusive representation in either public or private employment. This, of course, was no mere oversight. For the only decision of the Court then extant on exclusive representation by a labor union—Carter v. Carter Coal Co.—had held exclusive representation unconstitutional. 

In a separate opinion, Justice Powell observed that a "collective bargaining agreement to which a public agency is a party * * * has all the attributes of legislation", and admonished his colleagues that "voters could complain with force and reason that their voting power and influence on the [governmental] decision making process ha[ve] been constitutionally diluted" by delegation of power to a union to participate in making such economic laws. In these comments, Justice Powell implicitly recognized the problems of corporativism and unequal political influence inherent in compulsory public-sector bargaining through exclusive representation. He did not articulate any opinion on those constitutional issues, though, the very tense of the verb he used ("couldcomplain") showing the purely hypothetical nature of his comments. For no litigants presenting their rights as "voters" were then before the Court.

Furthermore, in their brief, the nonunion employees also disclaimed any intent to litigate the issue of delegation of power, saying that

[w]e need not explain in detail how prior decisions of this Court foreclose the question of the unconstitutionaluity of such a delegation of power to private parties to structure the public interest according to their own. E.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 (1935); Carter v. Carter Coal Co., 298 U.S. 238, 311, 318 (1936) (opinion of the Court; Hughes, C.J., concurring); and cf. Lathrop v. Donohue, 367 U.S. 820, 853-55, 878 n.1 (1961) (Harlan, J., concurring; Douglas, J., dissenting). Neither need we advert to the controlling nature of these decisions on the issue of exclusive representation which underlies the whole agency-shop problem. It is not our purpose to raise the constitutional conundrums which both Justices Harlan and Douglas in Lathropconsidered pregnant with danger and difficulty * * * .

And the union neither discussed the issue nor even cited any of the cases to which the nonunion employees referred.

Justice Stewart’s plurality opinion also ignored Schechter and Carter, and acknowledged the marginally relevant Lathrop decision only correctly to note that that case "does not provide a clear holding to guide us in adjudicating the constitutional questions here presented".

In his opinion, however, Justice Powell made a very curious observation:

Because this appeal reaches this Court on a motion to dismiss, the record is barren of any demonstration by the State, that excluding minority views from the processes by which governmental policy is made is necessary to serve overriding governmental interests. For the Court to sustain the exclusivity principle in the public sector in the absence of a carefully documented record is to ignore, rather than respect, "the importance of avoiding unnecessary decision of constitutional questions."

As explained above, "the record [in Abood was] barren of any demonstration by the State, that excluding minority views from the processes by which governmental policy is made is necessary to serve overriding governmental interests" precisely because the litigants did not raise that issue, and therefore had no occasion to make such a record, even by way of allegations in their complaints. Therefore, it was constitutionally impossible "[f]or the Court to [have] sustain[ed] the exclusivity principle in the public sector", because the Court lacks constitutional authority to give advisory opinions on issues not presented to it in a specific "Case" or "Controversy". Presumably, Justice Powell knew all this. And he had before him the record of the case, which if it was not self-explanatory was supplemented by the nonunion employees’ unequivocal statements in their brief that their appeal did not raise the issue of exclusivity. So why did Justice Powell say what he did? Was it mere confusion? Or was it perhaps intended to plant the seeds of a legend—the legend that later sprouted (as described below) in Chicago Teachers Union, Local No. 1 v. Hudson?

Finally, in their separate concurring opinions in Abood, Justices Rehnquist and Stevens said nothing at all on the subject of the constitutionality vel non of exclusive representation.

As in its earlier decisions, the Abood Court mechanically and unthinkingly brought forth the "labor-peace" argument to rationalize compulsory public-sector collective bargaining. Justice Stewart’s plurality opinion adverted at several places to the view that "labor stability will be served by a system of exclusive representation". These statements, however, constituted no decision of constitutional law, but mere and even question-begging dicta. Many things that might serve "labor stability"—such as slavery—could also violate the Constitution.

For one example of what could fairly be described as Abood’s double-talk on this subject, Justice Stewart contended that

[t]he designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment. It prevents inter-union rivalries from creating dissension within the work force and eliminating the advantages to the employees of collectivization. It also frees the employer from the possibilty of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations.

One wonders in what dream world Justice Stewart was operating when he wrote this passage. Where in public employment (or private employment, for that matter) was it common, or even known, for employers to "attempt[ ] to enforce two or more agreements specifying different terms and conditions of employment" as to the selfsame employees? Not surprisingly, Justice Stewart provided no example. For that matter, where in public or private employment was it common for employers to attempt to enforce two or more agreements specifying radically different terms and conditions of employment for different, but similarly situated, employees? Not surprisingly, Justice Stewart provided no example of this, either. Even in the absence of unions, free labor markets simply do not allow such situations to arise in the normal course of events, or (if they adventitiously do) to persist for any significant length of time. To be sure, in the context of a hypothetical statute mandating compulsory collective bargaining but without exclusive representation, where two or more unions are empowered simultaneously to negotiate for the same employees, it is possible to imagine that an employer might "fac[e] conflicting demands from different unions", and "the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment". But no public-sector collective-bargaining statute ever set up such a psychotic system.

For another instance of this confused thinking, Justice Stewart argued that

[t]he confusion and conflict that could arise if rival teachers’ unions, holding quite different views as to the proper class hours, class sizes, holidays, tenure provisions, and grievance procedures, each sought to obtain the employer’s agreement, are no different in kind from the evils that the exclusivity rule in the Railway Labor Act was designed to avoid. * * * The desirability of labor peace is no less important in the public sector * * * .

To hold this view, though, one would have to believe that a free labor market—in which employers could bargain with one union, more than one union if conditions warranted, or no unions at all—would necessarily and ineradicably be beset with debilitating "confusion and conflict". That, however, was not the case before compulsory collective-bargaining statutes were enacted. It was not the case when Abood was decided. And it is most assuredly not the case today, where the vast majority of private-sector employees belongs to no union at all. Also, for a Justice of the Supreme Court to hold this view, he would have to ignore the decisions in Virginian Railway and Jones & Laughlin Steel Corp., which held that, notwithstanding the designation of a union as the employees’ majority representative, an employer could enter into individual contracts with employees—contracts which, presumably, could have been informed by the "different views" of a "rival" union, so long as the "rival" union did not purport to act as the majority representative. Finally, for anyone to hold Justice Stewart’s view, he would have to forget that "[t]he confusion and conflict that could arise if rival * * * unions * * * each sought to obtain the employer’s agreement" derive fundamentally from the existence of compulsory collective bargaining itself. If employers were not compelled by statute to bargain, terms and conditions of employment would be set by free-market forces, which would balance or filter out the "quite different views" of "rival" unions.

Interestingly, Justice Stewart’s theory of "labor peace" turned not on outbreaks of industrial violence by workers if employers refused to accede to the process of collective bargaining (as was the historical predicate for the "labor-peace" rationales of Virginian Railway and Jones & Laughlin Steel Corp.), but on the palpably circular argument that "confusion and conflict * * * could arise if rival * * * unions * * * each sought to obtain the employer’s agreement". That is, "labor peace" required exclusivity in compulsory collective bargaining because, without exclusivity, an imaginary inherently chaotic scheme of compulsory collective bargaining would be chaotic! To which assertion, one would have thought, the proper response would have been a shrug, a derisive smile, and the suggestion that the logical solution to that phantom problem was simply to avoid any compulsory collective bargaining at all.

Interestingly, too, Justice Stewart’s theory that "[t]he confusion and conflict that could arise if rival * * * unions * * * each sought to obtain the employer’s agreement, are no different in kind from the evils that the exclusivity rule in the Railway Labor Act was designed to avoid" reinterpreted the "labor-peace" rationale of Virginian Railway from one concerned with violent strikes by unionized employees protesting the absence of union recognition and collective bargaining to one concerned with imaginary "confusion and conflict" in the context of hypothetical multi-union collective bargaining. Perhaps this was because Justice Stewart sensed that one could not plausibly rely on a traditional industrial-violence model of "labor peace" where the government—that is, the public—was the employer.

In any event, in all of this Jusice Stewart said nothing about the constitutional problems surrounding exclusive representation.

Revealingly as well, even in support of the agency shop (the matter at issue in Abood) Justice Stewart’s plurality opinion cited but a single constitutional case: Railway Employes’ Department v. HansonHanson, however, said nothing about the constitutionality vel non of exclusive representation, either. And prior to Abood, the one Court of Appeals squarely presented with the question had concluded that Hanson was irrelevant to the unconstitutionality of exclusive representation. So how, by relying on HansonAbood could have said anything about the constitutionality of exclusive representation defies comprehension.

Hanson did, however, make an obeisance to "labor peace", saying that

Congress has authority to adopt all appropriate measures to "facilitate the amicable settlement of disputes which threaten the service of the necessary agencies of interstate transportation." * * * These measures include provisions that will encourage the settlement of disputes "by inducing collective bargaining with the true representative of the employees and by preventing such bargaining with any who do not represent them," Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 548, and that will protect the employees against discrimination or coercion which would interfere with the free exercise of their right of self-organization and representation. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33, 57. Industrial peace along the arteries of commerce is a legitimate objective; and Congress has great latitude in choosing the methods by which it is to be obtained.

But, in these remarks, Hanson clearly relied on a vision of "labor peace" that related to violent strikes over union recognition and bargaining that shut down interstate commerce. And, by its citation of authority, Hanson conceded sotto voce that even that form of labor unrest could be averted by the kind of exclusive representation upheld in Virginian Railway and Jones & Laughlin Steel Corp.—that is, exclusive representation that was not in fact exclusive, because it permitted bargaining by individual employees.

From all of this, then, it is pellucidly clear that Abood constituted no precedent for the constitutionality of exclusive representation in public-sector employment (or anywhere else), and certainly did not overrule or find inapplicable to public-sector exclusive representation the unequivocal condemnations of exclusive representation in Schechter and Carter.

Following Abood, the Supreme Court decided Perry Education Association v. Perry Local Educators’ Association. Although there the Court held that a school board could constitutionally grant to a union designated as the teachers’ exclusive bargaining representative the exclusive privilege to use teachers’ mailboxes and the interschool mail system, the constitutionality of exclusive representation itself was in no way at issue.

Nonetheless, in dicta the Court made a by-the-way nod to exclusivity, saying

[w]e observe that providing exclusive access to recognized bargaining representatives is a permissible practice in the public sector. We have previously noted that the "designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones." Abood v. Detroit Bd. of Ed., 431 U.S. 209, 221 (1977). Moreover, exclusion of the rival union may reasonably be considered a means of insuring labor peace within the schools. The policy "serves to prevent the * * * schools from becoming a battlefield for inter-union squabbles."

Revealingly, the Court cited no case for the proposition that "providing exclusive access to recognized bargaining representatives is a [constitutionally] permissible practice in the public sector". (Probably the Court merely meant that such exclusive access was "permissible" in the sense that many States in fact permitted it, rather than that it was legally justificable on statutory and constitutional grounds.) And, of course, the one case it did cite, Abood, sustained neither any privileges of "exclusive access" nor exclusive representation itself, in whole or in part—which is perhaps why the Perry Court merely said that Aboodhad "noted" certain things about exclusive representation, not that Abood had actually held anything on that subject.

Also revealingly, the Perry Court did not seem to grasp the obvious petitio principiin its observation that "exclusion of the rival union may reasonably be considered a means of insuring labor peace within the schools. The policy ‘serves to prevent the * * * schools from becoming a battlefield for inter-union squabbles’". Of course, "insuring labor peace" could also be brought about by not allowing collective bargaining through exclusive representation at all. For, without that system, "inter-union squabbles" would not be possible, because no prize of exclusive privileges would stand to be won on that "battlefield". That is, as articulated in Perry (as it was in Justice Stewart’s plurality opinion in Abood), the issue of "labor peace" is entirely synthetic, being merely—one is tempted to say, exclusively—the product or artifact of compulsory collective bargaining itself.

In keeping with the illogic of its primary position, the Perry Court admitted that "there is no showing in the record of past disturbance * * * or evidence that future disturbance would be likely" from allowing a union in competition with the exclusive representative to use the school mailboxes and mail system, but nevertheless held such proof unnecessary to sustain the exclusive union privileges at issue. That is, to the Court in Perry the "labor-peace" theory was not one that required supporting evidence before the rights of nonunion employees could be abridged, even though, traditionally, "undifferentiated fear or apprehension of disturbance is not enough to overcome" First-Amendment freedoms.

Interestingly, although Justice Brennan dissented in Perry from the Court’s notion that a threat to "labor peace" required no real evidence, he nonetheless accepted the question-begging proposition that "the State’s interest in preserving labor peace * * * in order to prevent disruption is unquestionably substantial". One can only wonder—for Justice Brennan failed to explain—how the government’s interest in "labor peace" is legitimately "substantial", when the threat to "labor peace" operationally arises from rivalry among unions for, and opposition by nonunion employees to, the very monopoly status for unions the government itself has created. Unless the constitutionality of that status has been proven, the government can claim no interest, substantial or otherwise, in the "labor peace" that status purportedly creates.

Most important to notice is the subtle—or, perhaps more accurately put, slippery—transition that took place in Justice Brennan’s opinion in Perry. In Virginian Railway and Jones & Laughlin Steel Corp. the Court in essence applied a de minimis rational-basis test to compulsory collective bargaining, saying that "[i]t was for Congress to make the choice of the means by which its objective of securing the uninterrupted service of interstate railroads was to be secured, and its judgment * * * is not open to review here". As to exclusive representation under the RLA and NLRA this approach may have been minimally legitimate in Virginian Railway and Jones & Laughlin Steel Corp., because (as explained above) no employees challenged the statutes, and the Court construed the RLA and NLRA as not precluding individual bargaining between employers and employees. But those cases certainly did not determine that the government had a "substantial"—or even any—interest in exclusive representation as exclusive representation came to be reinterpreted years later, perforce of J.I. Case Co. and Order of Railroad Telegraphers, for the compelling reason that, in Virginian Railway and Jones & Laughlin Steel Corp. the government did not assert a theory of truly exclusive exclusive represention, and in J.I. Case Co. and Order of Railroad Telegraphers the Court refused to discuss the constitutional issues arising from its reinterpretation of exclusive representation. Obviously, then, Justice Brennan was attempting to further the legend he had originally cut from whole cloth in City of Madison that exclusive representation was "unquestionably" or "plainly" constitutional, by supplying the first level of legal magic language for that unjustifiable conclusion: that the government’s interest in exclusive representation was "substantial".

Following Perry came Knight v. Minnesota Community College Faculty Association (Knight I), a case which did, for the first time, raise serious constitutional questions about exclusive representation in public-sector employment. Unfortunately, but perhaps predictably, the Court chose to treat Knight I in a summary fashion, without briefs on the merits, oral argument, or a full opinion, notwithstanding that, under the jurisdictional statute in force at the time, the nonunion employees had a right to appeal their case to the Court, and notwithstanding that the disposition, albeit summary, was nevetheless a decision on the merits. 

In a companion case to Knight IMinnesota State Board for Community Collegesv. Knight (Knight II), arising under the same jurisdictional statute, the Court—after full briefs on the merits and oral argument—held that a State community-college board could constitutionally prohibit nonunion teachers from speaking at official meetings on policy questions related to their employment but outside the scope of mandatory collective bargaining (the so-called "meet-and-confer" process), and could reserve the right to speak to members of the exclusive representative.

The constitutionality of exclusive representation itself was not at issue in Knight II. Nonetheless, the Court in Knight II sustained the union’s exclusive privilege to speak at the board’s meetings by reference to exclusive representation:

If it is rational for the State to give the exclusive representative a unique role in the [collective-bargaining] process, as the summary affirmance in [Knight I] presupposes, it is rational for the State to do the same in the "meet and confer" process. The goal of reaching agreement makes it imperative for an employer to have before it only one collective view of its employees when "negotiating." See Abood v. Detroit Board of Education, 431 U.S. at 244.

Similarly, the goal of basing policy decisions on consideration of the majority view of its employees makes it reasonable for an employer to give only the exclusive representative a particular formal setting in which to offer advice on policy.

In a footnote, the Court correctly described Abood’s holding on the agency shop, but then stated in slippery verbiage that "Abood did not even discuss, let alone adopt, any general bar on ‘exclusivity’ outside the collective-bargaining context". Of course (although the Court did not advert to it), neither did Abood discuss, let alone adopt, any general constitutional permission for exclusivity outside, inside, or anywhere around the collective-bargaining context. Abood held nothing about exclusivity at all.

In any event, that it may be "rational for the State to give the exclusive representative a unique role in the [collective-bargaining] process" was beside the constitutional point in Knight II—and, interestingly enough, was not even an issue in Knight I. That some governmental scheme is somehow internally rational (in an operational sense) does not compel the conclusion, or even necessarily provide persuasive argument, that the scheme is also constitutional. Operationally, of course, there can be only one union representative if there is to be only one agreement with one collective representative. So, in that trivial, tautologous sense, exclusive representation is rational. The constitutional issue in Knight I, however, was not whether the designation of one monopolistic representative was a rational way to create a system of monopolistic representation, but whether such a designation, precisely because it gave monopolistic powers to a private organization, abridged governmental and popular sovereignty, in violation of the holdings of Schechter and Carter, and of the fundamental constitutional principle of political equality that the Supreme Court had applied in numerous other of its decisions.

As to this, the Court in Knight II simply said that

[t]he [lower] court rejected [the nonunion employees’] attack on the constitutionality of exclusive representation in bargaining over terms and conditions of employment [in Knight I], relying chiefly on Abood v. Detroit Board of Education, 431 U.S. 209 (1977). * * * The [Supreme] Court summarily affirmed the judgment insofar as the District Court held [exclusive representation] to be valid. Knight v. Minnesota Community College Faculty Association, 460 U.S. 1048 (1983). The Court thus rejected [the nonunion employees’] argument, based on A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and on Carter v. Carter Coal Co., 298 U.S. 238 (1936), that [exclusive representation] unconstitutionally delegated legislative authority to private parties.

On what constitutional grounds the Court in Knight I "rejected" the argument based on Schechter and Carter the Court in neither Knight I nor Knight II chose to explain. The Court cited no decision other than Abood in support of the result in Knight I—from which, apparently, a reader of Knight II unfamiliar with Abood, and who incautiously fails to parse that decision for himself, is to infer that Aboodsomehow upheld the constitutionality of exclusive representation, and even somehow distinguished or overruled Schechter and Carter.

The statement that "[t]he [Supreme] Court summarily affirmed the judgment [of the District Court] insofar as the District Court held [exclusive representation] to be valid" provided no particular help, either. For, in its opinion, the District Court merely fantasized that "Abood squarely upholds the constitutionality of exclusive representation bargaining in the public sector"—when, of course, Abood does, and in light of the issues actually litigated in that case could do, no such thing.

The political grounds for the Supreme Court’s statement in Knight II, however, are not so difficult to fathom. By treating Knight I in a summary fashion, without a full opinion, the Court not only could suppress the arguments and evidence the nonunion employees put forward (for not one person in ten million will bother to consult the briefs hidden away in the Court’s bowels), but also could spare itself the embarrassment of trying to rationalize the constitutionality of exclusive representation in the teeth of SchechterCarter, and numerous other cases.

Most revealing about the whole affair is that Knight I was the first, and to date remains the only, case to reach the Supreme Court in which public-sector exclusive representation has been challenged on constitutional grounds. (Carterheld exclusive representation unconstitutional in private-sector employment.) Why, if Knight I was to be the only such case (as presumably the Court knew it would be, were exclusive representation upheld), and why, if the Court were to "reject[ ]" the obvious—indeed, logically compelling—application of Schechterand Carter to exclusive representation in the public sector, would the Court not have explained to the country the manifold sound bases for its decision, if such there were?

Justice Brennan wrote an extensive dissenting opinion in Knight II. Yet in Knight Ihe was strangely silent, notwithstanding that in other cases he had condemned summary dispositions of serious constitutional questions as "judicial irresponsibility".

That all the Justices eschewed any explanation or critique of what the Court did in Knight I evidenced their recognition sotto voce that a sound constitutional basis for that decision not only did not exist, but was even not capable of being concocted out of lawyers’ double-talk—and that any mention of this would, doubtlessly, draw the public’s attention to what the case entailed. How, indeed, could the Court summarily, without a written opinion, "reject[ ]" Schechter and Carter, two of the most significant constitutional decisions of the Roosevelt era, which set aside the key legislation of the New Deal? Was this because no opinion was necessary—or because no believable opinion could be written? Moreover, what sort of legal logic or economy would have led the Justices to pen long and involved majority, concurring, and dissenting opinions in Knight II, yet no opinion at all in Knight I, when the Court in Knight II explicitly rested that decision on the ersatz authority of Knight I ("[i]f it is rational for the State * * * " and so on, as quoted above)?

The dissenting opinions in Knight II are themselves quite illuminating as to the fundamental deception all the Justices practiced in that decision. In his dissent, Justice Brennan wrote that,

[a]s we have often recognized, the use of an exclusive union representative is permissible in the collective-bargaining context because of the State’s compelling interest in reaching an enforceable agreement, an interest that is best served when the State is free to reserve closed bargaining sessions to the designated representative of a union selected by public employees. See Abood, * * * 431 U.S. at 223-26. See also Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 178 (1976) (BRENNAN, J., concurring in judgment).

One wonders who the "we" might be who "often recognized" the "permissib[ity]" of public-sector exclusive representation, other than Justice Brennan himself. No case before Knight I, including Abood and City of Madison, ever held "exclusive union representati[on] * * * permissible" in public employment, on any ground. No case before Knight I ever held that there was a "compelling [governmental] interest in reaching an enforceable agreement" that justified exclusive representation. Indeed, even Knight I (as interpreted by Knight II) did not so hold. Knight II merely said that "[i]f it is rational for the State to give the exclusive representative a unique role in the [collective-bargaining] process, as the summary affirmance in [Knight I] presupposes", then a lesser form of exclusivity would also be "rational". And, by Knight II’s own admission, the result in Knight Imerely "presuppose[d]" that such a situation was "rational". The Court having written no opinion, Knight I never actually inquired whether, let alone proved that, such a presupposition was valid, when measured against countervailing arguments and evidence. In addition, the nonunion employees in Knight I never argued that it was not "rational for the State to give the exclusive representative a unique role in the [collective-bargaining] process", but rather contended that exclusive representation is unconstitutional precisely because it is a rational and effective means to create a monopoly of political and economic influence for a union occupying such a position.

Again, noteworthy is the slippery transition made in Justice Brennan’s opinion. In the majority opinion in Knight II, the most the Court dared to say was that exclusive representation could be "presuppose[d]" to be "rational" on the basis of Knight I, but without providing any details as to why that was so. Mere rationality, of course, is the lowest basis for a constitutional ruling; and, as every law student learns in his first course in constitutional law, it cannot be employed to justify infringements on fundamental rights of free speech, association, and political equality (the rights asserted in Knight I). So the bare statement of Knight II as to the mere rationality of what Knight I did could not have been very comforting to anyone, such as Justice Brennan, conversant with the standards of contemporary constitutional jurisprudence and hoping to convince readers of the United States Reports that such standards had properly been applied in Knight I. Of course, under the circumstances, it was tactically the best, and perhaps the only, route the Court could follow in Knight II, given its obvious desire to suppress the issues raised in Knight I.

In Perry, Justice Brennan had stated in dicta that the government had a "substantial" interest in exclusive representation, putting the matter a notch higher up on the constitutional scale than mere rationality, yet still not high enough to justify the result the Court allowed in Knight I. So, in Knight II, Justice Brennan conveniently discovered from nowhere that the government’s interest in exclusive representation had suddenly risen to the "compelling" level—the verbal talisman that cures abridgments of fundamental rights. The assertion of this conclusory language could explain away to careless readers of the decision the result in Knight I without actually explaining the basis for that decision. So, very neatly, by Justice Brennan’s verbal legerdemain the constitutionality of exclusive representation in public-sector employment was decided rhetorically, without anyone’s actually having to address the question with real evidence and legal arguments as if they were in a courtroom.

One may legitimately wonder what, in Justice Brennan’s mind, the "compelling" governmental interest in exclusive representation might have been. True, the designation of one monopolistic representative is a rational, effective, and even arguably the only way to create a system of monopolistic representation. But what "compels" the government—what legitimate constitutional power and right, let alone duty, has it—to create such a system? For decades—yea, generations—governments hired employees without compulsory collective bargaining and exclusive representation, and quite adequately provided the public with services through those employees. So the "compelling" nature of the thing, whatever it may be, is no unavoidable, existential aspect of public-sector employment itself. Furthermore, for decades—yea, generations—public-sector unionism and both compulsory and voluntary collective bargaining were deemed wholly inconsistent with traditional concepts of governmental sovereignty. So the "compelling" nature of the thing, whatever it may be, is no matter of law. Indeed, the "compelling" aspect of exclusive representation flies in the face of traditional legal principles. Pace Justice Brennan, it is no practical matter of "reaching an enforceable agreement", either. For a public employer can certainly contract individually with its employees, with each of the individual contracts being "enforceable" to the same degree a collective-bargaining agreement is. In addition, a public employer can certainly offer the selfsame terms and conditions of employment to similarly situated employees as individuals, without any union’s being consulted.

So, Justice Brennan’s "compelling" governmental interest in exclusive representation reduces to nothing more than the silly truism that the government has a "compelling" interest in recognizing an exclusive representative for its employees where the government has an interest in reaching an enforceable agreement with such a representative, because the government can reach such an agreement only if it recognizes such a representative. But why and under what conditions the government has an interest in reaching such a monopolistic agreement, and on what logically independent grounds that interest is "compelling" (if it is), Justice Brennan did not explain.

In his dissent in Knight II, Justice Stevens said that "[i]t is now settled law that a public employer may negotiate only with the elected representative of its employees, because it would be impracticable to negotiate simultaneously with rival labor unions. See Abood v. Detroit Board of Education, 431 U.S. at 224-26." If Justice Stevens meant by "may" that "[i]t is now settled [constitutional] law," one wonders what he meant by "now". Even had he meant that—for the first time in history—Knight I so held, he would have been incorrect. For the nonuniuon employees in Knight I never attacked exclusive representation on the ground that public employers should be required, or even free, to "negotiate simultaneously with rival labor unions". But Justice Stevens did not rely, even erroneously, on Knight I. Rather, his citation of Abood implied, if it did not assert, that Abood had upheld exclusive representation as a matter of law. That, of course, is not the case. In any event, the apocryphal holding Justice Stevens cited is, to be charitable, foolish in the extreme in the face of the contention made in Knight Ithat for a public employer to negotiate with any union unconstitutionally abridges governmental and popular sovereignty and political equality.

Justice Powell joined in Justice Stevens’ dissent. Yet, although the nonunion employees in Knight I had argued that compulsory public-sector collective bargaining through exclusive representatives is an unconstitutional delegation of governmental authority to private parties, Justice Powell conveniently forgot his observations in Abood that a "collective bargaining agreement to which a public agency is a party * * * has all the attributes of legislation", and that "voters could complain with force and reason that their voting power and influence on the [governmental] decision making process ha[ve] been constitutionally diluted" by delegation of power to a union. (Apparently, Justice Stevens forgot them, too.) How Justice Powell could pinpoint this issue in Abood—where it was not litigated—but could then put it aside entirely both in Knight I—where it was the centerpiece of the litigation, and in Knight II—which used Knight I as ersatzauthority, passes understanding.

What comes out of all the opinions in Knight II and the absence of an opinion in Knight I is an evidently substantial and compelling desire on the part of the Justices to say as little as possible about the issues Knight I raised, and in Knight II to misdescribe Abood as having decided the constitutionality of exclusive representation. No doubt, this desire was also quite rational, in light of the extreme difficulty the Court would have had in explaining away Schechter and Carter in Knight I. It was also tactically adroit. A summary disposition by the Court is to be treated narrowly, and does not carry with the Court itself as much weight as a decision on the merits after full briefing and oral argument. However, a summary disposition is purportedly fully binding on the inferior federal and all State courts. So, by disposing of Knight I summarily, the Court effectively scotched the issue of exclusive representation in further litigation, but left itself free to bring up for review that issue, or some aspect of it, later on if it turned out (as so far it has not) that the Court’s imposition of an essentially fascist system on public-sector employment exhibits some overly rough edges that the Court feels need filing down.

Is the Supreme Court, then, to be charged with duplicity with regard to its actions in Knight I and Knight II? Perhaps this question can be answered by asking whether the Court is to be charged with spreading disinformation on the subject thereafter. This question can be answered by letting the reader draw his own conclusion from Chicago Teachers Union, Local No. 1 v. Hudson. In Justice Stevens’ majority opinion in that case, the Court asserted, without qualification, that in Abood "[w]e * * * rejected the claim that it was unconstitutional for a public employer to designate a union as the exclusive collective-bargaining representative of its employees, and to require nonunion employees, as a condition of employment, to pay a fair share of the union’s cost of negotiating and administering a collective-bargaining agreement". Of course, as explained above, in Abood there was no "claim that it was unconstitutional for a public employer to designate a union as the exclusive collective-bargaining representative of its employees"—no claim raised by the litigants, no claim adjudicated by the Court.

Now, Justice Stevens, for one, had sat on the very Court that had decided Abood. Had he, by the time of Hudson, quite forgotten what Abood was about? If so, surely he could have reread the opinions in Abood. And if that was not enough to refresh his recollection, he could have consulted the briefs in the Court’s archives. Perhaps he did not bother to do so. If he did, and understood what he was reading, he chose to describe Abood in a manifestly false way. But could Justice Stevens have written an opinion for the Court based on honest confusion (let alone duplicitious misrepresentation) about what Abood held, and still have had every other Justice of the Supreme Court join or concur in that opinion without comment? Would not honest confusion, let alone misrepresentation, have been corrected before the opinion went to press?

That honest confusion about what Abood held was not at work in Hudson can be surmised from the absence in the latter decision of any citation of Knight I or Knight II. Even a first-year law student, required in a moot-court exercise to write a brief defending the constitutionality of public-sector exclusive representation, would perforce cite Knight I, inasmuch as that is the only case that ever brought the issue to the Supreme Court for decision (notwithstanding that the Court dealt with in a summary fashion). The student might not be able to defend the result in Knight I, and surely would be unable to identify the chain of legal reasoning (if any) along which the Court reached it. But he would doubtlessly cite the case, or justifiably expect a low grade for his legal research. Why, then, did none of the Justices in Hudson mention Knight I, instead consigning it by silence to the status of a noncase (in the fashion of an Orwellian nonperson)? Was it because, if Hudson had cited Knight I, a legal researcher reading Hudson might have been stimulated to look up the details of Knight I in the briefs submitted in that case, and doing so would have seen what a utter, indefensible travesty that decision was? And therefore was it more politic and less embarrassing for the Court to attribute (even falsely) to Abood what Knight I did? After all, a legal researcher who began his search with Hudson and then turned to Abood, as Hudson seemed to direct him, might conclude that he could not understand how the Hudson Court had concluded that Abood had upheld exclusive representation when exclusive representation was not at issue there. But, notwithstanding that anomaly, the researcher might nevertheless simply write the whole matter off, accepting what amounted to a fait accompli, and thereafter himself citing Abood (on the arbitrary authority of Hudson) as the case that upheld exclusivity, without ever knowing of, let alone investigating, Knight I. In that way, in the real world of practical litigation the Supreme Court would succeed in covering up the whole tortuous history of exclusive representation from Schechter and Carter to Knight I and Knight II. Is that, however, what the Court did? Let the reader judge for himself. Surely, though, this explanation is not without precedent. Bigger and more consequential official cover-ups have taken place in American history.

A final piece of evidence supporting the theory of cover up is Justice Blackmun’s plurality opinion in Lehnert v. Ferris Faculty Association in which he correctly stated that "in Abood * * * this Court addressed the constitutionality of union-security provisions in the public-employment context", mentioning nothing about exclusive representation. Between Hudson and Lehnert, did the Court learn something about Abood that it had not known when it decided Hudson? Or was it that, by the decision in Lehnert, the Justices felt that no further mention of the Abood legend about exclusive representation was necessary? By Lehnert, the matter could be left where it lay. Who, after all, would ever bring it up again?

II. The twisted peregrinations of the "labor-peace" theory through the judicial underbrush described heretofore should suffice to discredit both that theory and the people who promulgated it. It would not, however, be amiss to address the demerits of the theory in some further detail, to cast the last shovelful of dirt on its grave.

As the Supreme Court’s opinions show, there are basically two branches to the "labor-peace" theory: The first, advanced during the period of chaotic economic and social conditions in the 1930s, asserts that, unless employers are compelled to accept the procedure of collective bargaining with unions through exclusive representation, violent strikes and other forms of labor unrest will ensue, with calamitous economic and social consequences. For examples—

[T]he meeting of employers and employees at the conference table is a powerful aid to industrial peace. 
[The] provisions [of the RLA] are aimed at the settlement of industrial disputes by the promotion of collective bargaining * * * . 
[T]he recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife.
The practice and philosophy of collective bargaining looks with suspicion on * * * individual advantages. * * * [A]dvantages to individuals may prove as disruptive of industrial peace as disadvantages.

This branch of the theory essentially employs the threat of violent "labor unrest" to rationalize the imposition on employers and nonunion employees of the process of collective bargaining itself—backed up, of course, by the violence of the government if the victims protest. Intellectually, it is akin to the "protection racket".

The second, contemporary branch of the theory of "labor peace" is that exclusive representation is necessary to avoid practical problems that would arise if compulsory collective bargaining were applied in situations where more than one union attempted to represent employees. For examples—

The designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment. It prevents inter-union rivalries from creating dissension within the work force and eliminating the advantages to the employees of collectivization. It also frees the employer from the possibilty of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations.

[E]xclusion of the rival union may reasonably be considered a means of insuring labor peace within the schools. The policy "serves to prevent the * * * schools from becoming a battlefield for inter-union squabbles."

The goal of reaching agreement makes it imperative for an employer to have before it only one collective view of its employees when "negotiating."

[T]he use of an exclusive union representative is permissible in the collective-bargaining context because of the State’s compelling interest in reaching an enforceable agreement, an interest that is best served when the State is free to reserve closed bargaining sessions to the designated representative of a union selected by public employees.

It is now settled law that a public employer may negotiate only with the elected representative of its employees, because it would be impracticable to negotiate simultaneously with rival labor unions.

This branch of the theory assumes a political-economic consensus about the desirability of compulsory collective bargaining in some form, and essentially uses the threat of "labor unrest" to rationalize the imposition on employees of exclusive representation in bargaining (Knight I) and other forums (Knight II).

Overall, it may be said that, with the passing of the socio-economic conditions that made the first branch of the "labor-peace" theory plausible (if not defensible), and with the general acceptance or at least toleration of compulsory collective bargaining (and, indeed, its promotion in the public sector) by the powers that be in American society, the second branch of the theory has taken over the duty of rationalizing compulsory collective bargaining and exclusive representation. For example—

The confusion and conflict that could arise if rival teachers’ unions, holding quite different views as to the proper class hours, class sizes, holidays, tenure provisions, and grievance procedures, each sought to obtain the employer’s agreement, are no different in kind from the evils that the exclusivity rule in the Railway Labor Act was designed to avoid. * * * The desirability of labor peace is no less important in the public sector * * * .

Especially in the public sector, all these rationalizations appear particularly thin and unconvincing in light of the consequences of compulsory collective bargaining through exclusive representation to nonunion employees, to public employers, to the electorate, and to America’s entire legal, political, and economic systems. Moreover, on analysis, these variants of the "labor-peace" theory can easily be exploded.

Initially, one would expect a heavy burden of proof to fall on any litigant—let alone a court—advancing the proposition that "labor peace" can be served through a scheme of collective bargaining that forces employees to accept unions as their exclusive representatives, and that forces employers to negotiate with those unions. For common experience teaches that people forced to do something they perceive as contrary to their interests rarely acquiesce in their oppression, even though their resistance may under the exigencies of their circumstances take only surreptitious forms. In none of the Supreme Court’s labor-law decisions from the 1930s to the present day, however, has this burden of proof ever been met—and Perry said that it need never be met with real evidence.

Indeed, with so small a percentage of union members among employees in the private sector, one must wonder how anyone today could accept the airy assertion from the 1930s that "recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife". Were that assertion true, would not some species of anarchistic industrial strife be expected to increase pari passu with decreases in union membership? And therefore should not modern times be even more the stage for industrial strife than ever the past was? The empirical evidence, though, does not validate this prediction. Therefore, may not one reasonably conclude that the vogue for compulsory unionism and other collectivistic solutions to economic problems in the 1930s was probably rooted, not in some unprovable because nonexistent cause-and-effect relationship between unionism and the economic welfare of employees as a class, but rather in the dominant socialistic and fascistic ideologies in which the Western world happened to be awash at that time, but which have since been discredited except amongst university professors, journalists, Hollywood glitterati, and (apparently) Justices of the Supreme Court?

Indeed, in Hanson, the Court in one of its more self-defining statements claimed that "[o]ne would have to be blind to history to assert that trade unionism did not enhance and strengthen the right to work. See Webb, History of Trade Unionism; Gregory, Labor and the Law." Is one to conclude from this jejeune apercu that tens of millions of American employees who reject union membership today are simply "blind to history"—or, in the old Marxian verbiage, traitors to their class? Or is it more likely that perhaps of somewhat dated and limited vision were the Justices who cited as an authority Sidney Webb, the notorious Fabian socialist and shameless apologist for Soviet Russia during the height of Stalin’s murderous reign? And therefore may one not also conclude that the Supreme Court’s original "labor-peace" apology for compulsory collective bargaining, which Hanson accepted, was more heavily freighted with tendentious theories deriving from the likes of Marx or Mussolini than with arguments congenial to the genius of American constitutionalism and individual freedom? That it was not some statement of enduring truth about employment relations, but merely the echo of the evanescent politically correct notions of an unsettled and confused time?

Interestingly, the Court seemed to admit as much in Hanson, when it offered the observation that "[t]he ingredients of industrial peace and stabilized labor-mangement relations * * * may well vary from age to age and from industry to industry. What would be needful one decade might be anathema the next." Is this observation—that "[w]hat would be needful one decade might be anathema the next"—perhaps the explanation for the Court’s tortuous, duplicitous path from Virginian Railway, through Knight II, to Hudson—namely, that the Court dared not openly address the issue of exclusive representation raised in Knight I, because it knew of no cogent defense for a corporativistic system of labor relations that, when honestly described, would find vanishingly few defenders outside of people nostalgic for Roosevelt’s National Industrial Recovery Act or Mussolini’s corporativism? Is Knight I a case in which the Court, after having insinuated the perverse scheme of exclusive representation into the law in earlier cases because the Justices thought it was "needful one decade", finally was brought face to face with the reality that that noxious principle is "anathema" to the basic precepts of constitutional law (as Schechter and Carter had held)—but then shrank from coming to grips with the problem, instead hiding behind the pathetic, cowardly fiction that Abood had already decided the issue?

Precisely how an advocate of compulsory collective bargaining would go about proving a clear connection between "labor peace" and compulsory collective bargaining through exclusive representation is difficult to imagine. For labor unrest is inherent in the conception and necessary in the operation of compulsory collective bargaining. Compulsory collective bargaining is, after all, a thoroughly adversary process. It presumes that employers and employees do not find themselves in a fundamentally complementary and coöperative venture, but are to some significant degree inherently in mutual opposition and disagreement because of what are supposed to be naturally contrary interests. This is no accident, inasmuch as compulsory collective bargaining embodies in statute form the ideology of trade unionism, which at base rests on definite, if basically false, class-warfare assumptions. In private employment, allowing unions and employers to operate on these errant assumptions through mutual economic coercion short of outright violence may perhaps be tolerable. In public employment, however, such toleration is wholly out of place. For notions of class warfare "on their face, obviously do not apply to the Government as an employer or to relations between the Government and its employees". 

Unions are nothing if not organizations that specialize in mobilizing and motivating employees so as to focus their wants and demands on recalcitrant employers. This may entail argument and persuasion. But where argument and persuasion fail, as they often do in a free society, unions inevitably turn to the tactics of pressure and force quite alien to a free society, in order to coöpt or interfere with the employers’ operations. The practical result of these tendencies is that compulsory collective bargaining inexorably and unavoidably substitutes relationships of power and coercion for relationships of consent and coöperation—and, indeed, institutionalizes and legitimizes conflict as a way of managing employment relations. Between employers and employees, one of these power relationships is compulsory negotiations, based on the coercion to bargain. Between union and nonunion employees another of these power relationships is exclusive representation, based on coercion, too. And between employers, nonunion employees, and the employers’ customers (in the public sector, the general public), on the one side, and unions, on the other, a third power relationship is the strike, which observers have long considered an indispensable adjunct of collective bargaining, and which often (if not usually) involves coercion in its most naked and repulsive forms.

In addition, compulsory collective bargaining directly and intentionally interferes with and subverts the symbiotic working relationship between employers and employees that is necessary for true stability and effectiveness in labor relations. The logic, and certainly the propaganda line, of compulsory unionism and collective bargaining is that employees owe the employment benefits they enjoy primarily to the unions that negotiate in their names. Bombarded with such ideas, employees will naturally tend after a while to attach their loyalties to the unions, rather than to their employers—or, in government employment, to the public whom their employers serve and to the taxpayers who pay their salaries. The latter is an especially perverse result. For every public employee owes his first and undivided loyalty "directly, immediately, and entirely" to the government and the public. "He has no other ‘client’ or principal. He is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer."

From this perspective, then, the notion that compulsory public-sector collective bargaining can bring about "labor peace" is not simply an error, but a cruel joke. Where bargaining is premissed upon conflict; where the unions’ success, and perhaps even survival, depends upon creating, nurturing, and prosecuting conflict; where employees subordinated to unions through exclusive representation will, in the nature of things, come to identify their personal interests with the unions’ institutional interests in creating and prosecuting employment conflicts—where all of these conditions exist, how can such a system possibly not engender and exacerbate labor dissatisfaction, unrest, and turbulence? Is it reasonable to expect stability and effectiveness in labor relations to arise from insinuating into the process private organizations self-interested in promoting destabilization?

For this reason, one can easily see through the contemporary "labor-peace" theory that "the use of an exclusive union representative is permissible in the collective-bargaining context because of the State’s compelling interest in reaching an enforceable agreement, an interest that is best served when the State is free to reserve closed bargaining sessions to the designated representative of a union selected by public employees". Yes, this theory is rational. That, however, is not an answer to, but a statement of, the problem. It is precisely in the rationality—the workability—of this "labor-peace" theory that the danger lies. By creating a system of compulsory collective bargaining that "reserve[s] closed bargaining sessions to the designated representative of a union selected by public employees", the government opens up a Pandora’s box of political as well as economic troubles. By its very nature, compulsory collective bargaining is the most proficuous means for promoting an insidious, subversive form of "labor unrest" for which no remedy exists, because the "labor unrest" has been duplicitously renamed as "peace", and institutionalized and legitimized within the structure of public employment itself.

Thus it should be apparent that, in principle, the "labor-peace" apology for compulsory collective bargaining is a deceit. The full panoply of compulsory collective bargaining, exclusive representation, and strikes is no matter of simply adding to the system a process perfectly compatible with and supportive of the system, that merely integrates employees, through their unions, into a coöperative decision-making process with employers. Rather, it is a matter of reorienting the system along entirely new lines of force. This is especially true in the public sector, where, if "labor peace" can be bought by conceding to unions the special privileges of exclusive representation, compulsory negotiations, and strikes, the cost includes a radical transformation in the very structure of government.

Schechter and Carter made clear that schemes of exclusive representation constitute a delegation of legislative power, even in the private sector. So, too, especially do strikes in public employment. Traditionally, courts have recognized that strikes by public employees contradict the fundamental principles that the government’s duty is serve all the people all the time, not to allow itself to become the pawn of any special-interest group, and that public employees may not engage in conduct intended to subvert the order and efficiency of the government’s operations. To these courts, public-employee strikes amounted in practice to a delegation of governmental power from public officials to union leaders, a delegation fundamentally at odds with the very concept of government. No less a friend of labor unionism than Franklin D. Roosevelt condemned strikes by public employees as

manifest[ing] nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.

And even intellectuals otherwise favorable to public-sector collective bargaining have long conceded that strikes by public employees constitute a species of political force that transmogrifies the political process by effectively transferring power from the public to unions.

The overall effect of all this is what Justice Powell touched on in Abood, when he observed that a "collective bargaining agreement to which a public agency is a party * * * has all the attributes of legislation", and that "voters could complain with force and reason that their voting power and influence on the [governmental] decision making process ha[ve] been constitutionally diluted" by delegation of power to a union to participate in making such economic laws. But it is also what the Supreme Court—including Justice Powell—refused to address in Knight I, and what the Court, hiding behind the whispy smokescreen of Abood, apparently intends never to talk about again. That is, even knowing what was and remains at stake, the Supreme Court has knuckled under to this truly revolutionary situation, not with a bang, not even with a whimper, but simply with silence.

The silence of Knight I is the most telling, the most damning, the most inexcusable, the most disgraceful aspect of the whole affair. What is its explanation? Bias—that the Justices harbored a strong prejudice in favor of compulsory unionism, growing out of years of faulty education and mingling with a ruling class for which corporativism, in operation if not in name, has become second nature? Cowardice—that the Justices simply wanted to achieve "labor peace" for themselves—that is, to avoid becoming the targets of attacks from the unions, the media, and the intelligentsiia for exposing the corporative, anti-democratic nature of compulsory public-sector collective bargaining, even if they ruled in its favor? Both are likely. But the latter more so. For if the Justices honestly believed—even wrongly, as the result of prejudice—that compulsory public-sector collective bargaining through exclusive representation is constitutional; if they believed SchechterCarter, and the doctrine of political equality to be somehow inapplicable to compulsory bargaining—then why did they not simply say so openly in Knight I? Why hide not only the reasons for their decision, but also even the particulars of the issues to which that decision related? And then why camouflage the whole matter by pretending that Aboodhad upheld exclusive representation, consigning Knight I to the jurisprudential branch of Orwell’s Memory Hole? The obvious answer to these questions is that a cover-up implies a knowledge of guilt.

Americans will probably never know the truth of this affair, because neither the Justices nor their clerks are unlikely ever to "spill the beans". But Americans should keep this shameful episode in mind when judging whether the Supreme Court can be trusted. Not so much to do the right thing—that, after all, might be asking too much. But just to tell the unvarnished truth about what it is doing.