A favorite tactic of employers opposing their employees’ union organizing efforts is to argue that the union is a “third party.” The implication, which employers frequently state baldly, is that the union has its own agenda and employee-members’ views will be ignored when the union bargains with the employer or adjusts the employees’ grievances. In some workplaces, the “third party” argument is accompanied by the suggestion that a union would interfere with each employee’s individual relationship with the employer. This tactic is so commonly deployed that it almost certainly comes out of union avoidance consultants’ playbook.
This “third party” rhetoric is instructive and perversely helpful. It begs a critically important question that every worker should ask: who should I trust to advance my interests in the workplace: a union or my employer? In order to answer that question, it might help to read between the lines of the “union-as-third-party” epithet.
The argument begins from the premise that employers and employees have an implicit contract that extends beyond the literal terms of their employment arrangement. If written, this contract might read, “you treat us right and we will treat you right.” This contract allegedly holds that, if the employee works hard, follows the employer’s rules, stays loyal, and goes the extra mile when asked, then the employer will reward the employee with rising wages, upskilling, promotions, job security, and a reliable retirement. While substantial academic work has questioned the persistence of any form of implicit contract in our economy, the idea remains powerful in many workplaces.
The employer’s argument is, in essence, the union would change the terms of this implicit contract. The collective bargaining agreement would govern instead. There are no guarantees how the bargaining would play out, as employers often say when their employees organize, but the likeliest outcome is that every employee would be treated the same. The employee’s fate would no longer depend on their performance and their individual relationship with the employer, or so this story goes.
The employee can hold up their end of the bargain and get nothing in return, or substantially less than expected.
Of course, this purported implicit contract does not bind the employer. The employee can hold up their end of the bargain and get nothing in return, or substantially less than expected. In an economic downturn, they can be laid off. Under the law’s at-will employment doctrine, they can be fired for a good reason, a bad reason, or no reason , as long as there is insufficient proof the employer violated narrowly drawn employment laws. Wages, benefits, and other terms and conditions of employment are not guaranteed absent an explicit employment contract. Every aspect of the employee’s work life remains within the employer’s control.
Employers might respond that they treat their employees right because it’s good for the bottom line. Motivated, engaged, well-trained, and well-treated employees are more productive, they would argue, which means more profits for the employer and its owners. In some cases, this argument is true. But even when it is true, it exposes the central fact of the employment relationship: money motivates employers, not the moral obligation of an implicit contract to treat employees “right.”
That’s the best version of this story. There is a far darker side of profit maximization and American employment relationships.
At most, this argument suggests that as long as the employer is maximizing its profits, which after all is the job of private employers in liberal capitalism, employers who have chosen so-called “high-road” relationships with their employees will continue those relationships. If profits slip, or even flatten out, or need to increase substantially because the employer will be sold or needs additional capital from the debt or equity markets, then the implicit contract is worth the paper it is written on. The turn can happen quickly. Ask Twitter’s former employees.
That’s the best version of this story. There is a far darker side of profit maximization and American employment relationships. Some employers maximize their profits by stealing their employees’ wages, misclassifying their employees as independent contractors, manipulating employees’ schedules, exposing employees to deadly hazards, closely monitoring an employee’s every moment at work, or depriving them of paid leave when they are sick. Other employers shut down facilities to move them to lower wage, less regulated communities in the U.S. or abroad. A surprisingly huge number of employers drive down their employees’ wages by requiring non-compete agreements or indenturing their employees with training reimbursement agreements. This is only a partial list of dark-side strategies. The range of exploitative creativity is frighteningly impressive.
This is only to say that, in many respects, employees without a union and their employers do not have common interests. They have a few shared interests. Profitable businesses can afford to pay more (whether or not they actually pay more) and are less likely to lay off their employees; so, employees typically want their employers to succeed. A business that shuts down employs no one, so there is a shared interest (within limits) around the employer’s survival. Nonetheless, there are no guarantees for employees with respect to these shared interests except that the employees will have no meaningful say in the decisions about how these outcomes might be achieved. Employees can go along with the employer’s decisions or quit. They do not get to vote on the decisions or vote out the CEO or their managers and supervisors when bad decisions are compounded by more bad decisions.
By contrast, workers in a union have common interests. In fact, when the National Labor Relations Board defines the group of employees it will include in a unit voting on union representation, the Board’s uses the “community of interest” test. Among other things, it looks at whether the employees have distinct skills and training, distinct job functions and job classifications, distinct terms and conditions of employment, and separate supervision. Note that the community of interest test does not require that all the employees become friends or love each other. The test looks at material economic facts; that is, the dividing lines that are likeliest to drive workplace decisions. It most certainly does not consider race, gender, ethnic origin, or other issues that are too commonly used in American society to divide workers from one another. Unions are multi-racial, multi-generational, and broadly inclusive. Equally important, they focus on workers’ shared concerns.
The community of interest test guards against a majority tyrannizing a minority. Employees with common interests typically want the same or similar things out of collective bargaining. There are not likely to be irreconcilable factions within a bargaining unit, although there may be some different views of the important issues. As a result, the union will be able to formulate a bargaining position by setting clear priorities among bargaining issues. In addition, the large majority of unions require that their members ratify collective bargaining agreements. If the union’s membership has widely divergent interests across many issues, ratification would be very difficult or impossible. There would be a risk that minorities with distinct issues would be ignored or outvoted. Common interests do not guarantee unanimous ratification votes. Workers disagree with one another. They have different expectations. As a result, contracts are not always ratified . But common interests make building a broad majority for ratification possible.
And so, we have arrived at an answer to our question: who should I trust to advance my interests in the workplace: a union or my employer? The answer is a union. That’s the correct answer precisely because the union is not a third party. The union consists of co-workers with common interests acting to advance those interests. The union is obligated by law to fairly represent those interests. More important, the primary check and balance is that a democratic vote of the union’s members could result in a rejected contract or a defeated incumbent union official.
At bottom, it is not merely that a union’s members have common interests. Unlike in their relationships with their employers, union members have accountability mechanisms to ensure that their interests are served. They can trust, but they can also enforce.
