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April 20, 2007 / Volume CXXXIV, Number 8   SHORT TAKE 
The Right to Unionize

Eduardo Moisés Peñalver 


THERE ARE FEW ECONOMIC issues on which Catholic social teaching is 
clearer than it is on the value of organized labor. In the church's view, 
unions are both an expression of workers' associative rights and an 
indispensable counterbalance to employer power. Strong unions increase 
the likelihood that employees will get their fair share of the economic 
pie, reducing the need for state intervention in the economy. For the 
past thirty years, the ability of the American labor movement to serve 
that protective role has diminished, as private-sector unionization 
has steadily eroded. Democrats in Congress are seeking a way to make 
it easier for workers to join unions and thereby, perhaps, help 
resuscitate this vital force for economic justice. 

Employers use all sorts of coercive tactics to prevent private-sector 
unionization. The new Democratic majority has wasted no time 
introducing legislation to change the way unions are certified. Called 
the "card check" bill, the legislation has already passed in the House 
of Representatives and must now overcome Republican opposition in 
the Senate and a threatened presidential veto. If it were to become law, 
it would permit the National Labor Relations Board (NLRB) to certify 
a union as soon as a majority of workers at a plant signed cards authorizing 

As the law now stands, faced with such a signature-card majority, 
employers can demand that the NLRB hold elections in which a majority 
of workers must re-endorse the union in a secret-ballot vote. The existing 
process is reasonable enough in theory, and Republicans in the Senate 
have seized on its superficial appearance of fairness to argue that the card-
check legislation would itself violate the right of workers not to join a union 
by depriving them of the secret ballot and thereby subjecting them to union 

In fact, secret-ballot elections are rife with employer coercion. The 
delays entailed by the election process give employers time to browbeat 
workers into voting down the union. During the drawn-out election 
campaigns, employers routinely require workers to attend antiunion 
seminars. Unions have no similarly guaranteed (and coerced) access to the 
workers. And several studies have shown that employers often violate the 
law flagrantly, firing union supporters and threatening workers with job 
losses and plant closings. 

On the other hand, there is little evidence of misconduct by unions beyond 
the occasional anecdote about intimidation during card-check elections. 
One study conducted by Rutgers University and Jesuit Wheeling 
University on behalf of a prounion group, for example, concluded that 
workers in secret-ballot elections were twice as likely as workers in card-
check elections to experience management coercion, and 50 percent more 
likely to report that management threatened to eliminate their positions 
in the event of a union victory. In contrast, the same workers reported 
negligible union intimidation during card-check elections. This makes 
sense because a union-as opposed to an employer-can exercise very little 
leverage over potential members. Employers can, on the other hand, 
threaten to fire their employees, depriving them of their livelihood as 
well as a fundamental right of association deeply embedded in Catholic 
social teaching. 

In Laborem exercens (1981), John Paul II summarized succinctly the key 
elements of the church's traditionally favorable attitude toward unions: 

[M]odern unions grew up from the struggle of the workers-workers in 
general but especially the industrial workers-to protect their just rights 
vis-à-vis the entrepreneurs and the owners of the means of production. 
Their task is to defend the existential interests of workers in all sectors 
in which their rights are concerned. The experience of history teaches 
that organizations of this type are an indispensable element of social life, 
especially in modern industrialized societies. 

John Paul's analysis emphasizes two distinct principles. First, he makes 
the point-bedrock within Catholic social teaching since Rerum novarum 
(1891)-that the right to form unions is itself part of workers' broader 
human right to associate freely. John Paul's analysis, however, goes even 
further. A view of unions as an expression of workers' right to associate 
would, by itself, be neutral about whether or not unions should actually 
exist. As long as workers' rejection of unionization was not the result of 
employer coercion, the absence of unions would not be cause for concern. 
But John Paul is clearly not neutral on the question. Unions are, as he 
puts it, "an indispensable element of social life, especially in modern 
industrialized societies" like our own. Accordingly, their absence (or 
decline) is a cause for concern, apart from any question of employer 

Why might the disappearance of unions-even in the absence of employer 
coercion-be a reason for alarm? The answer has to do with the key 
function that unions serve and the place such associations have within 
Catholic economic thought. The church's commitment to the principle 
of subsidiarity means that, all things being equal, it prefers to guarantee 
economic justice with as little state intervention as possible. Unions 
play a crucial role in avoiding the need for state involvement in the 
economy by buttressing the bargaining power of workers and actively 
defending their interests. When the magisterium talks about leaving 
questions of economic justice to be resolved in the private sphere, it 
often has in mind not an unregulated market, but rather the resolution 
of economic issues through negotiations between employee unions and 
employers. For example, in Centesimus annus (1991), John Paul said: 

[S]ociety and the state must ensure wage levels adequate for the 
maintenance of the worker and his family, including a certain amount 
for savings. This requires a continuous effort to improve workers' 
training and capability so that their work will be more skilled and 
productive, as well as careful controls and adequate legislative measures 
to block shameful forms of exploitation, especially to the disadvantage 
of the most vulnerable workers, of immigrants, and of those on the 
margins of society. The role of trade unions in negotiating minimum 
salaries and working conditions is decisive in this area [emphasis mine]. 

In other words, unions are a key part of the church's conception of the 
sorts of private mediating institutions that take some of the pressure 
off the state, which must otherwise implement economic justice only 
through legal interventions in the market. Catholic economic 
conservatives, who are all too willing to emphasize the church's focus 
on mediating institutions in other contexts, are often strangely silent 
on the importance of unions as private mediating institutions that 
play a crucial role in fostering justice within the economic sphere. 

With such a conception of unions as both expressions of the right of 
workers to associate and the key counterweight to employer power in 
the effort to guarantee economic justice, the steady decline of private-
sector unionization in the United States over the past few decades is 
cause for genuine concern. Fewer than one in ten private-sector workers 
is now represented by a union. The stagnation of real wages for the 
working class over the same period, despite steady increases in worker 
productivity and record corporate profits, is yet another reason to 
respect the church's emphasis on the vital structural role of unions. In 
the absence of a vibrant labor movement, U.S. employers have in 
recent years been able to keep for themselves virtually all the gains 
from increased worker productivity. 

Scholars have pointed to numerous possible causes for the decline of 
unions. At least part of the reversal of labor's fortunes can be attributed 
to structural shifts in the economy, including the steady erosion of 
manufacturing jobs, which historically had been the center of union 
strength. The unions themselves also bear some blame. They have often 
failed to dedicate sufficient resources to organizing efforts and have 
not always presented a convincing case to workers that they would be 
better off with union representation. In addition, bureaucratic 
ossification and corruption within the labor movement, while surely 
exaggerated by antiunion forces, are nonetheless real problems. 

At least part of the story, however, has been coercive opposition to 
unionization by employers. In virtually every union organizing drive, 
employers hire highly paid consultants to help them skirt the line of 
legality in their opposition to unionization. And when, as they often 
do, employers step well over that line, flaccid federal enforcement 
of workers' rights and puny financial penalties make those violations 
virtually risk free. The U.S. bishops focused on this cause of union 
decline in Economic Justice for All (1986), where they firmly 
condemned efforts by employers to prevent workers from organizing. 
"No one," they said, "may deny the right to organize without attacking 
human dignity itself. Therefore, we firmly oppose organized efforts, 
such as those regrettably now seen in this country, to break existing 
unions and prevent workers from organizing." 

The card-check bill now pending would strengthen workers' ability 
to unionize. It would also plug some of the enforcement holes in the 
existing law. A revival of the American labor movement would help 
to correct a badly skewed balance of power within the U.S. economy. 
This important legislation deserves the attention of those who share 
the church's views about the "indispensable" role of unions as 
instruments of justice.


Eduardo Moisés Peñalver
Eduardo Moisés Peñalver is an associate professor at Cornell 
University School of Law.

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