Leaving a Union Has Become a Grande-Sized Headache

C onflict between corporations and unions is a centuried story. Take, for example, Starbucks’ recent lawsuit against Starbucks Workers United, the branch of Workers United that represents most of the coffee-shop chain’s unionized stores. Starbucks alleges that the union infringed on Starbucks’ trademarks, and that its pro-Palestine stance has damaged the franchise’s reputation. Workers United is counter-suing for defamation.

But U.S. labor law is also pitting unions against individual workers.

This might come as a surprise to those unfamiliar with labor laws in the United States. Aren’t unions supposed to represent workers’ interests? And if they aren’t aligned, can’t workers just leave a union? The freedom to associate (and disassociate) is a fundamental tenet of American society, so it only seems natural that it would apply to these working relationships.

Enter the National Labor Relations Board (NLRB), the body created by the National Labor Relations Act of 1935 to regulate union formation. The tangled web of rules of the NLRB heavily favors the formation of unions and imposes formidable barriers to their dissolution — and even to individuals’ opting out. This means that labor unions have been privileged under federal law over other types of organizations, while the collective “choice” to join one has been privileged over the individual right not to. This imbalance contradicts the spirit of the freedom of association, as established by Supreme Court precedent on the First Amendment, and traps workers in unions that don’t serve their interests.

To understand the gravity of the problem, look no further than at the process of decertification. While workers can join unions with few legal hurdles, leaving is an entirely different story. To decertify a union, workers must first file a petition with the signatures of 30 percent of their peers. If the petition is approved by the NLRB, then comes a secret-ballot election. This may sound like an easy process, but the NLRB’s timeline overwhelmingly favors unions. During the first year of a union’s recognition, decertification is off the table. If a collective-bargaining agreement is reached between the union and its members’ employer, it precludes decertification for another three years. Under these rules, regretful workers at many recently unionized Starbucks stores have been kept from pursuing their interests.

Even if a decertification petition comes to a vote, unions — often armed with substantial resources and a well-structured organization — can and frequently do wage an anti-decertification campaign, putting pressure on workers and employers to keep them around. Take, for example, the union representing rural USPS employees: Despite the fact that two-thirds of its members have seen a reduction in pay in the last year, the union, unlike its nationally distributed members, can use its centralized communications and finances to oppose an ongoing decertification push. The NLRB enforces various measures to protect employees from employer intimidation, but it employs no similar measures to prevent intimidation on the part of their unions or co-workers.

For workers, the inability to decertify can mean high dues, representation that does not align with their views, and an inability to directly negotiate with employers. A structure meant to empower workers can end up suppressing their voices and hurting their pocketbooks. The parties hurt most by the NLRB’s meddling are often high-performing employees, whose compensation or prospects for promotion are hampered by collective bargaining, not to mention those employees who wish not to be associated with their union’s political activity. This hampers employees’ ability to pursue their economic self-interest as they see fit.

It’s time we started treating unionization and decertification the same way we treat any other free choice to associate. The NLRB needs to be reined in to prioritize the rights and freedoms of workers and employers, letting them decide whether forming a union is the best course of action. Impinging on their right to do so is not only economically burdensome; it is in stark contrast to long-held American values.