Friday, November 28, 2014

Majority Unionism, Compulsory Unionism, and Compulsory Voting Hurt Workers

     Some on the left speak of Right to Work laws as “right to work for less” laws. While statistically it is true that pay is nominally lower in Right to Work states than in non- Right-to-Work states, the interstate differences in consumer preferences, styles of economizing purchasing, and economic and social values, may account for Red-Staters' desire to live in more conservative economies.
     Also, the value of freedom – meaning liberty from coercion and compulsion, in addition to free choice from among many alternatives – is immeasurable. The freedom to choose a union is as important as the freedom to choose one's employer.
     Additionally, the reputation that Right to Work laws have for being “union-busting laws” is unfounded. Right to Work laws do not eliminate collective bargaining, nor unions entirely. They merely invalidate union shop agreements, which permit the hiring of union members alongside non-members, but with the requirement that non-union workers eventually join the union and pay dues as a condition of getting hired or keeping their jobs.
     Right-to-Work laws would do nothing to reverse the illegality of closed-shop union security agreements (in which only union members in good standing may be hired), which are outlawed by the Taft-Hartley Act.
     Although compromise between labor and capital seems a distant dream, I contend that the solution to compromise on the Right to Work vs. Compulsory Unionism issue is remarkably simple.

     On September 5th, 1989, Reed Larson, the head of the National Right to Work Legal Committee, appeared on The Mike Scinto Show, on WHIO-TV in Ohio, to discuss the merits of Right to Work laws. Wes Wells, a Dayton-area labor leader with the American Federation of Labor – Congress of Industrial Organizations (A.F.L.-C.I.O.), called in to the show.
     Reed Larson defended Right to Work laws, and Wes Wells explained that the A.F.L.-C.I.O. is opposed to the principles of the Right to Work Committee. However, they both agreed that it is due to federal labor law of the 1930s and 1940s (specifically, the majority unionism provision of the 1935 Wagner Act, which created the National Labor Relations Board) that free riders are created and covered.
     Before reading the exchange, it will be necessary to understand the majority unionism provision of the National Labor Relations Act of 1935. According to this act (which is still in effect, and enshrined into law in Section 9 of the U.S. Code), there can be only one exclusive bargaining representative for a unit of employees (that is, the people elected by a majority of the workforce have the right to become the exclusive representatives of workers in collective bargaining with the employer), and employers are compelled to bargain with the representative [singular] of its employees.
     Majority unionism, compulsory unionism, and the compulsory and secretive election procedures required of unions by the N.L.R.B., are all consequences of the Wagner Act, and yet Right to Work laws take the rap for creating free riders.

     The following is a transcript of part of the exchange between Larson and Wells. The video can be viewed at this address:

Scinto: Do you think it's fair that if … I come to work for … Chrysler, or for … General Motors, that if I don't want to belong to a union, that I should have to be represented by that union?

Wells: Well, absolutely. When we take... a look at the average wage rate … of those Right to Work states, and take a look at the wage rates in this … state, for example, and take a look at the tax structure, and who pays the taxes, we don't think that there should be free-riders. If an individual enjoys the same wage and benefits – health, medical, and all those services – then we don't think … that they should be able to free-ride on other members that … pay union dues.

Scinto: Reed?

Larson: Well, I don't think that they should be able to free-ride either, and I don't that you should be required … to represent anybody who doesn't voluntarily join and pay dues to the union. Now just tell us, right on the air, do you want to represent those non-members? Would you support a change in the law that says you support only the people that want to be represented?

Wells: Reed, you know that by federal law, that we are required to represent those free riders.

Scinto: And he's [Larson is] saying he … wants that changed.

Larson: … We've got a bill in … Congress to change that. Would you support it? …

Scinto: Would you support the bill to … eliminate that federal law, Wes?

Wells: I'd have to take a look at the bill. I don't even know what bill he's talking about.

Scinto: OK... Let me... ask you, Wes, if ... we came up with a … theoretical bill or an actual bill that would eliminate the … mandatory support for people who didn't pay their dues and didn't belong to the union, could you at least … be open to the consideration of a Right to Work law?

Wells: Well, I, you know, I think we need to take a look at any legislation, but … you know, to buy a pig in a poke, absolutely not, and the things that Reed and the Right to Work Committee stand for, you know, we are directly opposed to those principles. And Reed is, you know, pretty much aware of that.

Scinto: Alright...

Larson: Just remember this: unions want to represent those non-members, and they fight bitterly for the right and the privilege of doing that, and then they want to tax those people.

     The National Right to Work Legal Defense Foundation – the 501(c)3 arm of the National Right to Work Committee, a 501(c)4 - primarily defends people who object to being compelled to pay union dues. It has also defended people who wanted to form new, alternative unions. The practices of having more than one union in a workplace are called dual unionism and minority unionism.
     In non-Right-to-Work states (otherwise known as Compulsory Unionism states, which allow closed-shop and union-shop union security agreements), unions compel non-consenting workers to pay union dues, even if they think the union doesn't do anything for them, or even agrees to limit their wages, raises, and benefits in order to keep the union contract with management/owners, and in order to keep the power to monopolize worker representation in the workplace.
     Agreeing to limit workers' wages is especially deleterious to the improvement of workers' living standards, because such contracts between unions and management were often written as long as decades before modern workers are hired. This, of course, means that wages and raises were written before all of the inflation and consumer price index increases that have accumulated since then.

     In addition to the fact that, in Compulsory Unionism states, inadvertent free-riders receive undeserved benefits (which they don't even consider to be actually beneficial to themselves, and therefore don't want, and also don't want to pay for), the National Labor Relations Act of 1935 -also known as the Wagner Act – allows employers to refuse to recognize the union.
     When the employer recognizes the union, the union can become the lone representative of workers in the workplace, provided that the union collect union authorization cards signed by a simple majority of the workers. But when the employer refuses to recognize the union, the union can only be certified through secret-ballot elections conducted by the National Labor Relations Board.
     To reiterate, the majority unionism provision of the Wagner Act requires that if a majority of workers do not authorize the certification of the union as the sole representative of workers in negotiation with management, a secret-ballot election must take place.

     These elections, aside from being secret-ballot (which Lysander Spooner argued are secretive, and remove all traces of voter privity) – are compulsory upon unions (rather than the rules of the elections being left up to the concordance of the workers themselves), and supervised and conducted by the National Labor Relations Board.
     Aside from all this secrecy, compulsion, and tyranny of the simple majority, such elections may be required to take place on a frequent basis. As a consequence of Scott Walker's Act 10 - passed in Wisconsin in 2011 - public sector unions working in education and health are now required to participate in annual votes on whether to keep their union. [Note: although the Wagner Act pertains to (most) private sector unions, it does not apply to public sector unions.]
     Aside from being required to frequently vote in secret ballot elections on whether to renew their unions' certifications, individual union members may be required to vote in union elections, even if they want to stay neutral. When this occurs, it is because the simple majority of the vote is based on a majority of the total number of workers, rather than on the number of workers consenting to participate in the election.

     Compulsory voting in union elections compounds the risk that a union will be required to cease representing workers. This is because when more people are compelled to pay dues against their will, more people will vote against renewing the certification of that union when such a vote occurs. This is especially so when the vote is compulsory on top of the compulsory dues payments, which bred the resentment that led workers to resist conscription into the union in the first place.
     This is the essence of the all-or-nothing system that the N.L.R.A. set up. It is difficult to imagine how many Americans assume that federal law compels employers to negotiate with unions, in an unconditional manner. This is to say that majority status through federally-supervised secret-ballot elections, is the necessary condition to invoke government responsibility to ensure that employers negotiate.
     If federal law required employers to negotiate with anyone engaging in concerted activity with fellow workers (in order to engage in union behavior, or in order to invoke their right not to), then majority unionism and compulsory voting in union elections would be obsolete.

     The interconnected web of aforementioned problems is the reason why I am strongly opposed to compulsory voting, whether in union or political elections. And now that we see the damage which compulsory voting can cause unions, we must understand that compulsory voting has the exact same effect in political elections.
     To any progressive or liberal who argues that voting should be compulsory in political elections - including on the premise that "more people would vote in a progressive or liberal way" - I say “then to be fair, we must also forcibly educate people about all of their options”.
     There should be no compulsory voting without compulsory education about all of the choices. This is why I feel that employers requiring workers to watch anti-union propaganda is an acceptable consequence of all the union compulsion I have described; it is an effort to provide a counter-balance. When such union compulsion ceases to exist, I would oppose all efforts to compulsorily educate workers.
     But compulsory education aside, if the public knows that disaffected progressives and liberals will be required to vote, and that they will be voting in droves, then those who oppose progressives and liberals the most strongly will also show up to the polls (especially since they'd be required to do so) in order to create a counter-balance to the electoral power of their political rivals. We must remember Newton's 3rd Law of Motion - “For every action, there is an equal and opposite reaction” - and apply it to political action.

     In my opinion, all of this demonstrates why putting bargaining rights on the table for sacrifice on the corrupt altar of representative democracy - which could vote those rights away, instead of being required to protect them as natural and inalienable, and protect our right to contract - was the first mistake of the labor movement.
     This is why I believe that on the labor issue, the federal government should do little more than protect each worker's unlimited right to enter into a contract and to negotiate (this right is limited by labor laws and long-standing labor contracts), protect the right of individuals to engage in concerted activity (or not to), and compel employers to bargain with employees (unconditionally, and regardless of the existence of a simple majority's approval).
     These rights should be seen as, and are, corollaries to all other rights in the workplace. As the International Workers of the World say, “an injury to one is an injury to all”. As Karl Marx wrote, “the free development of each is the condition for the free development of all”.
     The needs of individuals and minorities must be protected from the will of the simple majority, which is unstable due to its potential to change instantaneously and change rules for light and transient causes. Majority status should not be anywhere near as meaningful and consequential as simply engaging in concerted activity with other workers for the purpose of prompting negotiation obligations on the part of management.

     On top of that subjugation, some union dues support political purposes, and/or have their funding buttressed by taxpayers. Compulsorily extracted union dues that fund the remainder of unions' pursuit of voluntary contributions, are what is known as soft money, as opposed to the hard money that is raised voluntarily.
     It is this tangled mess of coercive taxation (to bail-out what consumers will not voluntarily pay for), compulsory dues payments, compulsory voting, tyranny of the simple majority, and employer freedom to refuse to recognize unions (if they don't get a simple majority), which render it paradoxical to support unions in Compulsory Unionism states; and which invite all the unlimited and secretive spending by corporations, unions, and political action committees, many of whose goals are questionably constitutional.
     It is violence in the workplace begetting a politically violent response, which - as I explained above - would be entirely called for, if only capitalists did not also collude to force workers to watch anti-union propaganda (on top of limiting and interfering with bargaining, and intimidating and exploiting workers).

     This mess is the fault of the citizens; for allowing the federal government to unconstitutionally legislate on matters of labor in the first place. Federal intervention in labor and commerce were never authorized by the Constitution. The Department of Labor and the Department of Commerce were originally fused together into one, when Theodore Roosevelt's government created them. I suspect that they were separated in order to keep labor's nose out of the corporate welfare books.
     This is why we must be wary that compromise may bring concessions, and that more secrecy may result due to only illusorily separated new powers such as these. Such departments are unconstitutional, and should either work with other cabinet agencies in a manner that provides checks and balances, or they should be constitutionally re-authorized, or else cease existing permanently.

     Big Labor and federal law create half of labor's problems. There is no reason why the labor movement and the limited government movement cannot work together; I assert that there are plenty of federal and state laws – and types of union security agreement practices (some of which are practically laws, because they are complex contracts that have been frequently updated and repeatedly allowed legal standing by the courts) – that can and should be found invalid and unconstitutional.
     As I stated earlier, these contracts and laws interfere with the people's unlimited right to contract. This right cannot and should not be voted away.
     Repealing the entire Taft-Hartley Act of 1947 (then dubbed "the slave labor bill" by labor leaders), amending or abolishing the monopolistic representation provision of the Wagner Act of 1935, and amending or abolishing much of the remainder of the Wagner Act, would be perfect places to start fixing the union bosses' mess. These are antiquated laws, in twenty years the Wagner Act will be a century old, and the Democratic Party can and should do much better.
     Right-to-Work laws must be re-presented in order to appeal to progressives and liberals. Here's how it's done: "Right to Work laws empower state governments to stop the federal government from requiring anti-union workers to derive free benefits - without paying dues - that result from the negotiation of union members who agreed to work for and pay dues to their unions". I could add "and willingly participate in, and vote in", if Right to Work laws could, of themselves, end compulsory and majority unionism. But that could only be done through a National Right to Work Amendment.
     There is no reason why labor should keep obeying the federal government's demands that it continue to work harder to support the free-riders that the government creates, giving more benefits than requested to workers who may despise the dominant union. This only begets more resentment, politicization of the workplace, political divisiveness, and spiteful policy-making.
     Constitutionally limited government, members-only collective bargaining, dual and minority unionism, and some of the goals of Franklin D. Roosevelt's unconstitutional 1933 National Recovery Administration (i.e., promoting boycotts and fostering fair competition) can reverse most of the aforementioned contradictions of organized labor. Right-to-Work laws and/or the abolition of the National Labor Relations Board (to be replaced by more direct negotiation between workers, owners, consumers, and investors) can solve much of the rest.

     In the 1980s, the Supreme Court ruled that workers may be compelled to pay a minimum amount of union dues to cover their fair share of collective bargaining, but they may not be compelled to become full members of a union.
     In my opinion, something close to this precedent should be recognized in Compulsory Unionism states, along with two requirements: (1) workers are given adequate warning – during the job interview, or at least before filing one's employment tax information - that they will have to join a union in order to keep their jobs, and (2) workers may only be compelled to pay union dues that cover those benefits of negotiation, of which individuals cannot help but receive the benefits.
     That is to say, any fair share fee that would be compulsory, would cover only those benefits that substantially improve the physical health and safety conditions of the workplace (the unavoidable consequences of working in a unionized workplace). Wages and benefits, however, would not be covered by fair share fees, but instead be negotiated on an individual basis (or, at least, wages and benefits could be allocated in a manner which is uniform with respect to individuals, but individuals would be free to opt-out of those full benefits).
     There is no good reason why the fair share fees which would normally be paid to the union, should not be paid to management and ownership, in order to cover the costs of the share of the health and safety improvements to the workplace which is incurred by workers not belonging to the majority union.
     Requiring ownership/management to collect fair share fees under these conditions, would eliminate the system of fair share fees as we know it, and allow workers to completely opt-out of paying dues to any union if that is their wish.
     It would also help ensure compliance with Section 19 of the Wagner Act, which provides that people with religious convictions against joining a union are entitled to not associate with or financially support it. Additionally, it would also help ensure that labor and capital each contribute something in regards to improving the physical conditions of the workplace.

     A twenty-year-old with no family to support, who goes to a hiring and staffing agency to find a job pushing a broom, should immediately be informed that “the union can get you fired for not paying dues.”
     “The union will resist any attempts to put non-unionized workers in the workplace, even on a temporary basis [for example, if you're a substitute for a unionized worker who is out recuperating from health problems]. No 'non-union' workers will not work here, not even if they want to form their own union, and especially not if they want to form that union in order to sue the majority union for agreeing to limit your pay and wage increases, in order to secure its contract, and under-bid any union that would have fought to secure higher wages. No job that doesn't require a license or full-time hours will be permitted to exist.”
     Furthermore, such a person should be allowed to earn less than the union would wish him or her to earn. If they go to work pushing a broom at a school, they should not be expected to join the combination teachers' and janitors' unions, and be paid as well as teachers, if they don't want to. In such combination unions, more skilled employees (in this instance, teachers) must stop pretending that allowing less skilled employees (here, janitors) to volunteer to earn less, threatens the skilled employees' bottom line, or their jobs altogether.
     The charade that paying low-skilled workers less, threaten the jobs of higher-wage earners, is a despicable lie that comes from unions, and absurdly threatens the jobs of both sets of workers. These lies may help garner sympathy for labor's cause, but they do not help individual workers whatsoever.

     Big Labor shoots itself in the foot using an enthusiastically registered gun made out of century-old federal laws. It no longer seems absurd to me to suggest that federal labor laws were designed to limit the freedom of several workers to demand negotiation, and the freedom of many unions to flourish, even several per workplace. This is in addition to the freedom to engage in sympathy strikes, which unions have to contend with aside from already needing majority votes and/or the union leader's agreement about whether and when a strike will take place.
     Essentially, I am arguing that union negotiation and its benefits must be treated as club goods; excludable and non-rivalrous. The market for union negotiation must be perfected, and its competition completed. Free riding is an externality which must be internalized in order to preserve the closed club nature of the union. Government created this problem; labor and capital did not.
     Unionists should not assume that a federal labor law benefits workers overall, simply because it is a long-standing labor law supported by Democrats (of eighty years ago, mind you). Liberalism has changed, and conservatism has changed. Labor must be revisited as a national issue, but the working public must be made to understand that our freedom and our power in the workplace are fundamental and inalienable rights, that we do not need permission to exercise them, and that we look to government (which we create and hire) only to protect these natural rights.

     To say what I hope is obvious, the problem is not that unions are inherently bad, it's just that many of them agree to abide by profoundly unjust and exploitative laws, and some are hungry for money, and for control in the workplace and in politics. I, for one, cannot agree to support most unionization in Compulsory Unionism states, because supporting unions would paradoxically lead to the destruction of unions (as I have demonstrated throughout this article). This is why I maintain that the left and the right agree on this issue; they just don't know it yet.
     I believe that there should be a National Right to Work Amendment, that the Supreme Court should invalidate and find unconstitutional the federal and state laws which permit union-shop union security agreements, and that the federal government should intervene in the Compulsory Unionism states (if necessary) in order to protect workers' rights to freely plan to form unions, strike, and demand negotiation. All other federal labor laws should be repealed, except laws requiring employers to negotiate, laws that protect the right of two or more workers to engage in concerted activity with intent to unionize, and laws that directly affect the federal government's own public-sector workers.
     I recommend that laws be passed requiring that no union be allowed to prevent other unions from going into competition with it. It should still be possible for unions to appeal to government to break up unions that use coercion and compulsion. But workers should not be left with no alternatives to an only union; if government destroys workers' only alternative, it should create an alternative, or at least allow any innocent workers to create something new. Either way, concerted activity must be strongly protected, in order for that to remain a possibility.
     To reject Right-to-Work laws, dual and minority unionism, members-only collective bargaining and open-shop union security agreements, is essentially to diminish the importance of federally protected concerted activity between several workers (as opposed to many workers agreeing to exist as a union, existing on majority status, following federal law and obeying the N.L.R.B.).
     Additionally, it is to assert that “unions are good because they help get the worker the full product of his labor, but to be truly excellent, unions should imitate the worst aspects of capitalism" - such as monopoly, coercion/compulsion, majoritarianism, representative democracy, and property ownership [albeit collective ownership in form] – and that unions should imitate the worst aspects of capitalist management and ownership, by having the power to fire people [keep in mind, we're talking about the power to fire people who don't even agree to work for them, and may have no idea that they'll be expected to start working for the union leadership's benefit until weeks after they are hired].

     Whether and how unions may or may not exist or strike, should not be left up to distant bureaucrats in Washington, but the freedom of decision on this matter should be recognized as a fundamental natural right, and protected. So let us not speak of “reining in the unions”; instead, it is time to rein in the powers of majority, monopoly, coercion, compulsion, ownership, politicization, polarization, and firing - which federal and state laws have permitted unions to exercise - so that collective bargaining with capital may be diverse, fair and equal, and both free and freeing.
     Perhaps it is even time to thoroughly end the power of the tyranny of the simple majority to vote away our inalienable individual rights to use our personal property (i.e., our bodies) to have an unlimited right to contract, and engage in concerted activity, and practice our natural, fundamental (albeit extra-constitutional) right to bargain with our employers (and our unions).
     I suggest that we may do that by constitutionally limiting government. This will have several positive effects: (1) the government would not be free to pile on government bureaus and the employee rolls and contracts and public sector unions that come with it. This would help ensure that the costs of government never get so high that it appears that taxes will have to be made compulsory upon everyone. It would additionally allow willing customers to make the choices about which companies and unions win and lose in the marketplace, rather than those choices being made by government bureaucrats and union bosses who have the power to steal the property (i.e., income) of taxpayers and workers.

Edited in December 2014
Thanks to Terry R. Gray for his assistance

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