In June 2012, the U.S. Senate voted down a bill that would have changed the federal law covering labor relations so as to permit employers to give individual employees merit raises where there is a union collective bargaining contract in place. Current law protects the supposed need for worker solidarity by preventing employers from unilaterally granting raises or bonuses. The union establishment lobbied for the bill’s defeat and afterward the Service Employees International Union cheered that by killing it, they had upheld the “fundamental rights” of workers.

It is worth keeping that incident in mind when reading Why Labor Organizing Should Be a Civil Right. Authors Richard Kahlenberg (a senior fellow at the Century Foundation) and Moshe Marvit (an attorney who practices labor and employment discrimination law) see labor unions as great champions of workers and their interests, which happen to dovetail with the authors’ belief in the redistribution of income and “social justice” legislation. They argue that the union movement would be greatly energized if the Civil Rights Act of 1964 were amended to prohibit employers from acting in ways that penalize or inhibit workers from union-organizing activities. That course is necessary, they contend, because the National Labor Relations Act (NLRA) and its slow-moving enforcer, the National Labor Relations Board, are not adequate to the task of protecting workers who advocate unionization.

I do not find the authors’ case persuasive.

Wealth gap justification? | Let’s start with the cornerstone of their argument, namely that the country would benefit if there were a union resurgence to the levels of the 1950s, when unionization peaked at about 36 percent of the private sector labor force. Kahlenberg and Marvit take a page from the Occupy Wall Street playbook and attempt to link their cause to the increasing wealth gap between the “haves” and the “have-nots.” At the same time unionization has been declining, they write, “economic inequality has skyrocketed to the point that the top one percent of Americans own more than the bottom 90 percent and income from productivity gains have gone exclusively to the top 10 percent.”

Many Americans have been taken in by the overwrought “wealth gap” argument, but the increase in income inequality has nothing to do with unionization. The United States has become much more wealthy over the last half century because of technological breakthroughs and improved efficiency in the use of resources, both of which unions tend to hinder. As Americans have become wealthier across the entire income range, it has become increasingly possible for those few individuals who are exceptionally good at providing broadly desired goods and services to earn huge fortunes. The decline of unionization had nothing to do with the stratospheric earnings of entrepreneurs like Bill Gates, entertainers like Oprah Winfrey, or athletes like New Orleans Saints’ quarterback Drew Brees. (For comparison purposes in sports, Terry Bradshaw, one of the top quarterbacks in the 1970s, earned only $400,000 per year, while Brees just signed a contract under which he’ll be paid $20 million annually for his efforts. That isn’t because Brees is better, but simply because of the far greater inflow of dollars into professional football now.) A greater dispersion of incomes is natural when consumers have more disposable income; if we could somehow go back to the days of high union “density,” that wouldn’t put the slightest dent in “the wealth gap.”

Unions and rents | Is it not true, however, that union-represented workers earn more than non-union workers? Kahlenberg and Marvit point to statistics showing that, on average, unionized workers receive higher pay and benefits than do non-union workers, implying that similar gains await non-union workers if only they could vote in a union. In fact, the authors go so far as to make the inaccurate claim that union workers always make more.

That line of argument is badly flawed. It is not the case that unionization necessarily leads to higher compensation. If, for example, you compare worker earnings at unionized United Parcel Service and non-union Federal Express, there is little difference. In some job categories, UPS workers are paid slightly more, but in others Fed Ex workers are paid slightly more.

More to the point, unions long ago established themselves in those industries where there was little or no competition and managed to extract all the advantages they could. For instance, electricians in New York’s entertainment industry are unionized and the story recently surfaced that the top electrician employed by the Metropolitan Opera earns over $516,000 per year. That remarkable compensation is possible because his union is in a position to squeeze lots of money from wealthy opera lovers for whom the Met is essentially a monopoly supplier. It does not, however, follow that unions can achieve high, or even any, gains for workers in industries where competition is intense and increased costs cannot be passed along to consumers.

One of the most egregious errors of omission in the authors’ rosy depiction of unions is their failure to admit that unions can and do cost workers jobs by making the employer uncompetitive. A good current example is Hostess Brands, the maker of Twinkies, Wonder Bread, and Drake’s coffee cakes. Hostess is in bankruptcy and trying to stave off liquidation. Unfortunately, the Teamsters Union, representing Hostess’s drivers, has refused to renegotiate its collective bargaining agreement. If Hostess goes bust and the employees lose their jobs, union intransigence will be largely to blame.

Why would union officials do this? Because they don’t always have the best interests of workers in mind. Sometimes officials’ own interests are best advanced by their demonstrating “toughness” and refusing to accept any “givebacks.”

The entire book is marred by the authors’ magnification of the benefits of unions while ignoring their costs.

Unionism today | Kahlenberg and Marvit are eager to blame the sharp decline of private sector unionism on increasing management hostility and nefarious consultants who specialize in defeating union organizing drives. But they fail to acknowledge more obvious reasons for that decline. One crucial reason is that unions have sparked the growth of non-union competitors through the inefficient work rules that unions often insist upon.

In that respect, the construction industry is an especially good illustration. During Big Labor’s heyday, unionized construction was predominant. Today it clings to just a few urban strongholds where non-union firms fear to enter, and to government projects where special interest legislation handicaps non-union competition. In most of the private sector, unionized construction firms find it difficult to compete because of their notorious work rules that impede the efficient use of labor.

Another reason for unions’ decline that doesn’t fit the authors’ story is the improvements that many firms have made in human relations. The old, authoritarian management style that gave rise to much justified worker antagonism is largely gone, replaced by a style that focuses on worker satisfaction.

The authors’ blindness to the undesirable effects of unions is particularly risible when they discuss public sector unions. In recent years, it has become obvious that those unions have taken advantage of their position of controlling both sides of the bargaining table—they use their political clout to elect public officials who are beholden to the unions and thus malleable to their demands—to extract extremely high compensation for their members. Public sector workers receive significantly higher pay and benefits than do comparable private sector workers. Some cities have already been driven to bankruptcy by the cost of their public union contracts and more are on the brink.

And yet the authors lament the efforts by politicians such as Wisconsin governor Scott Walker to rein in the power of the unions. Instead of worrying about lowering the cost of public sector compensation, they say, we should work toward increasing private sector compensation to match it—which is what the authors think their proposed change in the law would help bring about. But if government units that have the power to tax are going bankrupt because of the high cost of unionization, how will newly unionized firms that have to compete for scarce consumer dollars fare? That is another of the problems Kahlenberg and Marvit never contemplate.

What should be done | While the underlying rationale for their proposal to make labor organizing a “civil right” is very weak, there actually is something to be said for changing the law, although not in the manner the authors have in mind.

Under the NLRA, it is an unfair labor practice for an employer to retaliate against an employee who exercises his statutory right to seek unionization. The problem, Kahlenberg and Marvit argue, is that the current avenue for redress of violations is so slow and uncertain that employers who decide to fire pro-union workers usually escape with little cost. Comparing the high immediate benefit from deterring unionization with the low cost of battling the NLRB and possibly incurring some penalty years in the future, some employers choose to terminate pro-union workers. Those workers may have thought that union activism was legally protected—union organizers would most likely reassure them of that—only to find themselves unemployed with only the possibility of some compensation in the future.

Kahlenberg and Marvit offer the solution of allowing such individuals to sue under the more plaintiff-friendly Civil Rights Act. Favorable judgments for workers would come faster and with much more sting for the offending firms, they claim. And once firms discovered that they couldn’t deter unionization with such tactics, unions would be established at many more companies and the country would be on its way toward a suitably egalitarian future.

I agree that it is bad when people who believe they have certain legal rights find out that those rights are more theoretical than real. But instead of wading deeper into the swamp of politicized labor relations law by creating a new cause of action under the Civil Rights Act (which is sure to lead to the same sort of harassing litigation we see under other anti-discrimination laws), we ought to move in the opposite direction and depoliticize the field.

Specifically, we should repeal the NLRA in full. Among the consequences of that would be the elimination of the law’s prohibition against employers announcing that they will not engage in collective bargaining and making it a condition of employment that workers refrain from union activism. Before the NLRA eviscerated the common law of contract for labor, employers were just as free as anyone else to contract only on agreeable terms. They could say “no” to unionization, and some—but not all—did so.

Wouldn’t that leave unions impotent? Not at all. There are means other than legal coercion to counter employers who take a hard line. It is easier than ever to communicate real or perceived abuses to the public. If Acme Company exercises its freedom of contract by declining to hire anyone who won’t agree to a no-union pledge, labor and other groups are free to exert pressure on Acme through information campaigns on the internet or other media. Socially minded consumers might be induced to boycott Acme and good workers might be poached by other firms that offer a more employee-friendly environment.

American labor law does need to change. But by encouraging the labor movement to keep relying on the antiquated tactics of coercion, this book’s recommendation would make a bad situation worse.