The bars in Big Labor’s “Hotel California”

Last thing I remember, I was running for the door
Had to find the passage back to the place I was before
“Relax, ” said the night man, “We are programmed to receive
You can check out any time you like, but you can never leave”

–“Hotel California” by The Eagles

***

Union organizing elections are dangerously close to the “one man, one vote, once” model common to 20th-century strongmen. If a majority of voters choose to form the union, it is created with perpetual existence and does not face reauthorization or review in the ordinary course of business. This means that unions have more permanent existence than the constitutions of fourteen states, which are periodically subject to “automatic ballot referral” as to whether the state should convene a new constitutional convention.

Rather than a term-defined or period-defined existence, unions are considered organized without limit unless workers, without aid from the employer, gather signatures to petition for an election to de-certify the union as the bargaining representative (which, under the effectively universal practice in the U.S. private sector, means the exclusive monopoly representative for all the relevant workers).

It’s not quite as hard to leave as the song’s Hotel California, but it’s close.

The bars

But every self-respecting hotel has a hotel bar, and thanks to the National Labor Relations Board (NLRB) Big Labor’s Hotel California has several. Each “bar,” which exists nowhere in the National Labor Relations Act, limits the periods in which workers dissatisfied with their union representation can petition to remove it. The National Right to Work Legal Defense Foundation (NRTWLDF) identifies four separate “bars” that the Board has created:

(1) the “contract bar,” which disenfranchises workers for up to three years when a union contract is in place; (2) the “recognition bar,” which blocks decertification after union officials gain power without a secret-ballot election through an abuse-prone “card check” process; (3) the “successor bar,” which blocks workers’ right to decertify a union following a change in employer ownership; and (4) the “settlement bar,” which prevents worker-requested elections after the union and employer settle charges without an admission of wrongdoing.

When any of the four “bars” are in force, workers cannot file a decertification petition, and the union’s continued existence (and in the 24 forced-unionism states, continued power to compel the payment of dues) is guaranteed.

Fixing the problem

Given unions’ extensive, government-guaranteed powers, allowing them permanent existence and the defense of these created “bars” is profoundly un-democratic. Which leads one to ask, “How do we fix this?”

The NRTWLDF has a good starting move: it has petitioned the NLRB to return to the law and put the four bars it added to the Hotel California out of business. It got a boost in that effort from the U.S. Court of Appeals for the D.C. Circuit, which held that under the Supreme Court’s 2024 Loper Bright precedent the “successor bar” exceeded the NLRB’s power to create. (For those interested in what the Loper Bright precedent means, CRC discussed the case with Paige Gilliard of the Pacific Legal Foundation when it was argued before the high court.)

NRTWLDF has three more proposals in its petition that go beyond merely closing the bars.

The first is prohibiting “blocking charges” by unions alleging improper employer conduct in a decertification petition or election. This is a less clear-cut issue, because unions and their opponents flip-flop on the legitimacy of pre-election charges during union organizing campaigns. This is where the “quickie election” idea comes from, as Democratic-controlled NLRB majorities require adjudicating disputes after votes are held to ease unions’ path to victory by shortening the campaign period.

Another proposed reform is abolishing the NLRB’s “merger doctrine.” Under the doctrine, NRTWLDF argues that unions can “merge smaller bargaining units into a massive multi-state and/or multi-employer unit, often comprised of thousands or tens of thousands of workers.” This makes decertification effectively impossible, since a worker agglomerated into one of these mega-units cannot hope to gather the appropriate signatures without organizational support the employer is prohibited from providing, especially given the constraints of the various bars. This policy should be struck down, as it is fundamentally undemocratic and contributes to “one man, one vote, once.”

The final policy NRTWLDF proposes the Board adopt is a periodic recertification requirement, under which unions—like the fourteen state constitutions I mentioned at the beginning of this article—would have to effectively stand for reelection, as government worker unions must in a handful of states. The existence of such a requirement need not lead to mass dissolution of unions where workers desire them; state constitutional ballot referrals almost always fail.

It would be wonderful if the Board could adopt such a rule, though given how much it departs from a near-century of practice it might ironically also run afoul of the Loper Bright precedent. But Congress still exists, and it could and should adopt such a rule in legislation.

There is no reason that unions should be a Hotel California that workforces can never leave. There is no reason unions should be more permanent that many states’ fundamental laws.

Source: https://capitalresearch.org/article/the-bars-in-big-labors-hotel-california/