Janus Decision Reveals Two-Faced Nature of Collective Bargaining Law

     The title of this speech is “Janus Decision Reveals Two-Faced Nature of Collective Bargaining Law”. This title alludes to the Roman god Janus, the two-faced god of duality, transitions, gates, beginnings and endings, passages and doorways. I make this reference because, in my study of labor policy, I have discovered that numerous false dichotomies and false choices exist, and persist, about multiple topics in labor law, which cloud the way we think about what fair and free association with unions ought to look like.

     Recently, the Supreme Court handed-down its ruling in the case of Janus v. A.F.S.C.M.E. Council 31. The plaintiff in that case - an Illinois public employee and child support specialist named Mark Janus - sued the public-sector union A.F.S.C.M.E. (the American Federation of State, County, and Municipal Employees), as well as various departments of the Illinois state government.

     Mr. Janus and his attorneys argued that it violated his First Amendment rights to be compelled to pay what are called “fair share” dues. “Fair share” dues (also called agency fees) cover the costs of the expenses incurred by the union. These expenses include engaging in collective bargaining on behalf of workers, and administering contracts.

     According to Janus, unions are private, independent organizations which are third parties to the employer-employee relationship; and therefore, his First Amendment -recognized freedom from association ought to preclude him from being compelled to pay to fund the transmission of political speech in which the union is involved (especially as a public-sector employee who has elected not to join a union). Mr. Janus felt that he was being compelled to pay a union that didn't represent him adequately, and as a result, was being compelled to pay to fund the transmission of political speech with which he disagreed.

     Janus also argued that, as a public sector employee, the government exerted an undue influence over him as an employee. Not only is the government his employer; when the government negotiates labor disputes involving public sector unions, it negotiates disputes which involve itself. This means that there is a potential conflict of interest, and so, the government's status as a neutral arbiter is questionable.

     Janus and his supporters say that, considering that it is a matter of public policy whether public employees are hired - and whether government agencies are created or abolished (as well as when, and how) - then it stands to reason that the collective bargaining in which public sector unions engage is innately political activity, and political speech. Also, that a non-unionized worker cannot rightfully be compelled to pay the union for anything it does.

     One month ago (on June 27^th, 2018), the Supreme Court ruled in favor of Mr. Janus.

     This reversed the 1977 Supreme Court decision in D. Louis Abood v. Detroit Board of Education. Janus also reversed the effects of the 2016 case Friedrichs v. California Teachers' Association, which allowed Abood to stand. As you may remember, that was due to a 4-to-4 deadlock, which resulted from the death of conservative Justice Antonin Scalia, which prevented the court from coming to a majority ruling, resulting in the case's dismissal, allowing the lower court's ruling to stand.

     As a result of the Friedrichs case, the question of compulsory union dues for public sector workers was left unresolved for the subsequent two years. This allowed the continued collection of dues from non-unionized public-sector workers; essentially on the grounds that they could not logistically refuse the so-called “benefits” of union negotiation (which they, of course, do not consider to be benefits).

     To repeat, the decision in Janus reversed the decision in Abood. And what the Abood ruling did was set up a clear distinction between requiring workers to pay “fair share” fees, for the costs incurred by the union (to engage in collective bargaining, and to administer contracts), versus requiring workers to pay dues to the union to fund the transmission of political speech. This “speech” can include political activities in which the union is involved, and as far as the First Amendment is concerned, it amounts to petitioning, and, some would argue, lobbying. Under Abood, public sector employees could be compelled to pay for collective bargaining costs, but not to support the union's political speech (and any lobbying efforts it might be undertaking).

     In my opinion, Abood v. Detroit Board of Education was a wise ruling, and Janus v. A.F.S.C.M.E. was not; because the Janus decision shatters the distinction between collective bargaining costs, versus costs of political speech indirectly associated with bargaining. While it is true that collective bargaining by public sector unions is innately political activity, there are arguably some “benefits” of union negotiation which cannot logistically be refused or avoided by employees (unionized or not). Specifically, the expenses incurred by the union for engaging in collective bargaining on behalf of employees to secure and administer contracts which affect the quality of safety and health which are enjoyed equally by unionized and non-unionized employees who work at the same workplace.

     This is the so-called “free-rider problem” which many union supporters criticize; a situation in which employees who don't want to join a union, are given the benefits of collective bargaining, without being required to pay for them. To repeat, they don't think that those things actually help or benefit them; but you don't like that word, then let's just say “results”. But they might just be saying that the union doesn't help them, because they don't want to pay for it, or because they don't see how certain results of negotiation are unavoidable.

     And if they're unavoidable, then the decision in Abood was appropriate, and shouldn't have been overturned, because, as a result of Abood, for the last 41 years, public sector employees have been expected to pay “fair share” fees to compensate the union for the expenses it incurred in negotiating for those benefits.

     At worst, Janus was all wrong. At best, it solved half the problem, while allowing another problem to continue existing, and also created a new problem. What I mean by this, is that, while it was good to stop requiring public sector workers to pay to support the political speech of their union, but it was unwise to stop compelling non-unionized employees to pay fair share fees. That's because the union, as a majority union, cannot help but provide non-unionized workers with the results of the collective bargaining that the union has already engaged in on behalf of all workers at the workplace.

     The Wagner Act – the National Labor Relations Act of 1935 – requires the majority union to represent all workers in negotiations. This extends a right to private sector workers in a legal manner, what was already afforded to them by reality and reason; that is, the obligation to accept certain results of collective bargaining (like the workplace safety and health conditions they deal with every day), and to pay for it responsibly on a fee-for-service, user-fee -type model.

     The Wagner Act obligates the majority union to represent all workers. It sounds great, until you realize that it has to represent even the ones who don't pay dues, or that it has to represent people who don't want to be represented. Which could be because they hate unions, or it could be because they think the union doesn't do enough for them.

     The Wagner Act creates the free rider problem (for many, though not all, private sector workers), because it obligates the union receiving the majority vote to represent all employees (that is, all members of the collective bargaining unit, which is usually all workers at the workplace). In the private sector, the now 83-year-old Wagner Act created the free-rider problem, while Right-to-Work laws enable that problem to continue. Meanwhile, in the public sector, New York Mayor Fiorello LaGuardia's 1958 “Little Wagner Act” - which allowed city worker unions to organize – enacted Wagner Act -type majority unionism for public workers (and inspired similar reforms across the country), while the Janus decision enable that problem to continue.

     This is what I mean by public policy on collective bargaining being two-faced.

     If you think about it, the Janus decision, Right-to-Work laws, and the Wagner Act all solve half of the problem, while creating another. Right-to-Work laws and the Janus decision are symptoms of the free rider problem which the Wagner Act created in the first place. If Right-to-Work laws are a Band-Aid on the problem, then the Janus decision is like replacing the Band-Aid with a smaller Band-Aid, without the wound having gotten any smaller.

     If you look up an organization called the National Right to Work Foundation, you'll find that not only do many of these free riders not want to be free riders, some of them actually want to form their own unions. Don't you think that if people were more free to form additional unions in their workplaces, more people would join unions? Maybe then, we'd have Eisenhower-era levels of 25 to 30 percent, instead of what we have now (something like 7 to 10 percent). Sure, we'd have more so-called “yellow unions” or “business unions” (unions which are complacent with management), but we'd have more radical unions too; and also a higher number of both unions, and of dues-paying union members.

     In an article entitled “When Non-Members in a Members-Only Non-Majority Union (MONMU) Want Weingarten Rights: How High Will the Blue Eagle Fly?”, researcher C. N. o'Brien explained that, according to labor law scholar and professor Charles Morris, 5 U.S. Code S 7114 (on the representation rights and duties of unions) does not mean to make a union's representation “exclusive” in the strictest sense possible, as many people assume.

     In Section 5a of 5 U.S. Code S 7114, it states that the rights of an exclusive union representative shall not preclude employees from “being represented by an attorney or representative other than the exclusive representative of the employee's own choosing, in any grievance or appeal action”. According to Morris, the duty to bargain with representatives of employees is not limited to exclusive majority unions.

     That would mean that management would be obligated to bargain with an exclusive bargaining representative of workers, not just the exclusive bargaining representative of workers. Which means it has to bargain with any and all bargaining representatives authorized to represent workers, as long as it is exclusive. This begs the question: What does “exclusive” mean in the context of this law? Does exclusive mean that the bargaining unit is the sole representative of workers in the union; or does exclusive mean that the bargaining unit's membership is exclusive, and it is funded solely by those workers who agree to support it? Professor Charles Morris and I hope that it's the latter.

     This practice of allowing two or more unions to exist in the same workplace or bargaining unit is referred to dual unionism, minority unionism, and members-only unionism. This type of practice is a common arrangement in Japan, and in my opinion, it stands a much better chance of achieving volunteerism, competition, and just rewards for honest efforts - on the part of the union and the employee alike - than what either the Democrats or the Republicans are proposing on union law.

     Until we consider amending or repealing the Taft-Hartley Act and the Wagner Act, there will be no serious discussion of protecting workers' rights. Those rights include the right to engage in concerted activity in the workplace, to unionize, to prompt negotiation (with or without a majority of workers' support), and to engage in strikes, boycotts, solidarity actions, and many types of ordinary, voluntary activities of private sector unions which have no reason to be illegal.

     That is how we achieve the general strike; by legalizing the general strike. By repealing the Taft-Hartley Act's prohibitions on solidarity actions; secondary boycotts, solidarity strikes, secondary picketing, and even wildcat strikes. Additionally, by legalizing cooperation between various organizations engaged in boycotts and strike actions; not only unions, but cooperatives, credit unions, public interest organizations, consumer interest organizations, non-profits and charities, etc..

     While the rights of public sector workers are important, there are only 22 million of them, and the rights of some 90 million private sector workers matter too. That's why we shouldn't let the public sector Janus decision distract us from making progress with private sector unions. Fortunately, solidarity actions will be easier to do in the private sector than in the public sector, especially while anti-union administrations are in power.

     Focused cooperation between unions is less politicized in the private sector than in the public sector, because it doesn't affect public policy. Cooperation between private sector unions is therefore less controversial, because it doesn't affect as many people's lives, nor the basic way society is run. Avoiding the politicization which cooperation between public sector unions entails, will help avoid the costs associated with standing idly by while anti-union governors and presidents use the legitimate political process to get away with firing large numbers of government employees, and with appointing anti-union officials to the National Labor Relations Board.

     However, boycotts are not possible until we can fully boycott companies we don't like. Not just by refraining from buying from them, but by stopping the flow of our tax money to fund the easy-credit loans, financial and legal protections, privileges, subsidies, and bailouts, that help them start their businesses, keep them afloat, and rescue them after they make bad decisions.

     In addition to being legal in the first place, and full so as to preclude subsidization, another important step is to make larger, wider, and more interconnected boycotts possible. This can be done by urging divestment from business alliances which disguise themselves as Chambers of Commerce, and encouraging them to instead join into independent business alliances. Especially into business alliances which unite partner firms on the basis of a common interest in cooperative management, environmental conservation or other ecological purposes, sustainable improvement, and non-discrimination against vulnerable members of society.

     Encouraging firms to join into independent business alliances, and into networks thereof, will increase the level of cooperation between owners and workers who share similar visions of a free and fair society. This will do wonders to align the interests of workers and management, leading to reduced demand for government to negotiate their disputes for them, and potentially to a significant increase in the number of firms running on cooperative models, and as E.L.M.F.s (egalitarian labor-managed firms).

     As long as we have a market economy; then cooperative enterprises; employee stock ownership plans, freelancers' unions; and full, legal, viable boycotts; can all help play a part in supplementing efforts to recognize workers' rights which focus on activity in which unions are directly involved.

Recognizing that workers' rights need to be augmented, and making it legal and possible for a more broad cooperation to occur among pro-worker causes in the private sector, will help reduce antipathy towards unions. So will amending the Wagner Act to make M.O.N.M.U.s (Members-Only Non-Majority Unions) more common.

     Maybe when M.O.N.M.U.s are more common, a single union could charge fair share fees for negotiating on the safety and health conditions that affect the whole workplace; while multiple unions could negotiate for wages and benefits, but solely for their own members; and union political speech not directly related to the services it provides, is paid for on a purely voluntary basis, after the worker receives his money.

Originally Written on July 28^th, 2018

Delivered on July 28^th, 2018

Edited and Expanded on July 29^th and 30th, and August 1^st, 2018

Originally Published on July 30^th, 2018

"Janus Decision Reveals Two-Faced Nature of Collective Bargaining Law"

(A new article with the same title as another article on the same topic from June 2018.

Re-written for the 2018 Bughouse Square Debates, held in Chicago on July 28^th, 2018)

The original article on which this speech was based, can be read at:

http://aquarianagrarian.blogspot.com/2018/06/janus-decision-reveals-two-faced-nature.html

Janus Decision Reveals Two-Faced Nature of Collective Bargaining Law

The case of Janus v. A.F.S.C.M.E. Council 31 could not possibly have been named with any more poetic irony than it was. That's because Janus reveals the two-faced nature of federal labor laws, and the two-faced nature of the manner in which Democrats and Republicans talk about those laws.

The Supreme Court ruled 5-to-4 in favor of the plaintiff, Illinois state employee Mark Janus, against the defendant, the American Federation of State, County, and Municipal Employees, Council 31. The court's decision ends compulsory "fair share" fees for public sector workers, meaning that a government employee no longer has to pay dues to the union which is obligated to represent them, if that employee does not wish to be a member of that union.

Critics of the decision argue that it turns the whole set of people on government payroll into an effective "Right to Work" system. Right to Work laws, now enforced in 28 states, prohibit "union shop" and "closed shop" union security agreements; contracts between unions and management which, respectively, require employees to join a union (union shop) or the union (closed shop).

Critics also suggest that Right to Work laws, and the Janus decision, enable "free riders" to take advantage of being represented by unions, without having to pay anything. But what critics of Janus and Right to Work laws miss, however, is that, since the Wagner Act (the National Labor Relations Act of 1935), three quarters of the states have begun to allow public sector unions to engage in collective bargaining, emulating the Wagner Act (which pertains to employees in the private sector).

The Wagner Act required all employees in a private sector workplace (or bargaining unit) to be represented by the union receiving the majority vote in a union election, in all unions affiliated with the National Labor Relations Board (which the Wagner Act created).

So 80-year-old federal labor law - the Wagner Act / N.L.R.A. of 1935, signed into law by F.D.R., a Democrat - is the reason that there are free-riding workers who receive representation but don't pay for what they receive.

Remember, "free riders" are workers whom do not consent to be represented by "their union" (which they don't pay for). Most "free riding" workers don't want to pay for those union benefits; either because they don't feel that those benefits are adequate or otherwise appropriate, or because they don't want to settle for those benefits or settle for the union in charge.

These are people who might even want to form their own union. However, the union in charge, if affiliated with the N.L.R.B., would probably appeal to the N.L.R.B., and sue the smaller union, seeking to put it out of business for "cutting in on their action" by competing against the monopoly wielded by the union which won the legal right to represent workers through winning a union election.

The notion that government is a business - and an ordinary actor that can behave anywhere nearly as fairly as an enterprise that can actually go out of business - is contributing and the misguided idea that public and private sector union policy ought to look more or less the same. It is ironic that - after progressive government entered labor policy in order to counteract the power of monopolies, bust the trusts, and ensure competition - government is now enabling the anti-competitive and monopolistic behavior of unions. But it should not come as unexpected.

The lack of a clear delineation in the law between private property and enterprises offering public accommodations, and the number of forms of public assistance to ostensibly private enterprise, only serve to further complicate this blurring of public sector collective bargaining policy together with private sector policy.

If the Janus decision seems wise, then, in my opinion, it is only because it reveals the hypocrisy of the components of the law which serves as the underlying assumption upon which the foundation of misguided labor law rests.

This is to say that it reveals the hypocrisy of the "majority unionism" (unionism by majority vote) and "compulsory unionism" (extension of union representation through legal decree) through which the Wagner Act created the problem at hand; namely, the free rider problem, which Right to Work laws and the Janus decision aim to solve, but which merely serve as bandages upon the problem.

But to say that Right to Work laws and the Janus decision serve as "bandages" is an insult to bandages; they actually create new problems on top of the old ones, adding insult to injury. Right to Work laws create new problems which weren't there before, by limiting the right of unions and businesses to freely engage in contract, and have their contracts honored by the government. Now, in the aftermath the Janus decision, the Supreme Court has taken credit for taking action, when in reality it has merely refused to redress an already existing problem; that non-consenting private sector employees in most states receive union representation which they don't think benefits them.

And that will continue to be a contentious issue, whether employees represented by a union are paying for those benefits or not.

Written on June 27th and 28th, 2018

Published on June 28th, 2018

Click the following link to read an speech for the 2018 Bughouse Debates,

which was based on this article:

http://aquarianagrarian.blogspot.com/2018/07/janus-decision-reveals-two-faced-nature.html

20 Goals for Labortarians: Crafting a Libertarian Policy on Unions

1. Craft a free labor policy.

2. Less government, more unions.

3. End Right to Work laws.

4. Liberalize professional licensing.

5. Fix the free rider problem.

6. Free movement and integrated markets.

7. End unions' monopolies on negotiation.

8. Protect concerted activity.

9. Continue to require bargaining.

10. Ensure the right to strike.

11. Legalize illegal union activities.

12. Make full boycott possible.

13. Keep divestment legal.

14. Unionize all walks of life.

15. Establish free union elections.

16. Free-market anti-capitalism.

17. End slavery, domination, and dominion.

18. Counter the rhetoric of self-ownership.

19. Free association and non-discrimination.

20. Promote acceptance and tolerance.

          1. CRAFT A FREE LABOR POLICY: Advance a labor policy which celebrates the contributions that the organized labor movement has made to advancing human liberty - and which is in keeping with the Libertarian Party platform, strict-constructionist and originalist interpretations of the Constitution, and frameworks to ensure free and fair markets - by consistently supporting voluntary collective bargaining activities over compulsion, hierarchy, and state interference in the affairs of organized labor.

          2. LESS GOVERNMENT, MORE UNIONS: Retain the portion of the 1935 National Labor Relations Act (N.L.R.A. / Wagner Act) which promotes the practice and procedure of collective bargaining, but also promote the radical privatization of government services wherever possible and prudent, and demand that most or all necessary government activities be performed by non-state actors. Increase overall union membership in the United States.

          3. END RIGHT TO WORK LAWS: Support the freedom of unions to exercise their right to become party to contracts with enterprises, by opposing efforts to pass Right to Work laws and amendments, in all jurisdictions and at all levels of government. Call on state governors to nullify and repeal such laws, and state and federal courts to rule them unconstitutional, due to their prohibition of union-shop and closed-shop arrangements, union security agreements which are perfectly free and voluntary (although they may have some undesirable effects). Repeal the portion of the 1947 Taft-Hartley Act which prohibits closed-shop union security agreements.

          4. LIBERALIZE PROFESSIONAL LICENSING: Make Right to Work laws unnecessary, by demanding an alternative method to preventing the domination of professions within given states by the set of unionized professionals already employed within them. Demand the liberalization of professional licensing laws, in order to accommodate independent contractors and those seeking to form unions.

          5. FIX THE FREE RIDER PROBLEM: Ensure that workers everywhere are free to “not consent and refuse the benefits” of union negotiation. Leave all employees free to refuse to pay dues to unions, but only on the condition that the employee refuse all benefits of union negotiation which he can feasibly refuse (i.e., not physical workplace safety and health conditions). Consider liability waivers as a possible solution to the safety and health free-rider problems.

          6. FREE MOVEMENT & INTEGRATED MARKETS: Fight globalism and ultranationalism, while supporting globalization, integration and interconnectedness of markets, and the free movement of labor and capital (including the freedom of locomotion for travelers and workers alike). Fight to liberalize immigration laws; end immigration quotas; lower barriers to trade; decrease tariffs, duties, and imposts; and oppose efforts of established unions to lobby for legal measures that unfairly protect or favor domestic labor. Use education to combat the stigmatization of legal and undocumented immigration.

          7. END UNIONS' MONOPOLIES ON NEGOTIATION: End compulsory unionism in the private sector, and end the rights of unions to monopolize the representation of workers in negotiation with management. Repeal the section of the Wagner Act which mandates that there is to be one exclusive bargaining representative for a unit of employees. Spread awareness of, and normalize, the practices of members-only collective bargaining, and dual and minority unionism (the presence of two or more active unions in a single workplace). Increase the diversity of the types of union security agreements which are practiced in the United States.

          8. PROTECT CONCERTED ACTIVITY: Retain the Wagner Act's provisions that require the federal government to protect the right of union and non-union employees to engage in concerted activity, and retain the protection for discussing wages. Protect these rights, as well as the right to form a union, in all jurisdictions, and at all levels of government.

          9. CONTINUE TO REQUIRE BARGAINING: Retain the Wagner Act's requirement that employers must negotiate with employees, on the grounds that a fair market is not possible unless the buyer and seller of labor have equal say in determining the price at which the labor is to be sold.

          10. ENSURE THE RIGHT TO STRIKE: Abolish the National Labor Relations Board, and repeal the provision of the Taft-Hartley Act which prohibits wildcat strikes. No union should have to request permission from a government bureau in order to go on strike, nor should any segment of a workplace or work force be denied the right to strike without the approval of a union leader.

          11. LEGALIZE ILLEGAL UNION ACTIVITIES: Demand the legalization of prohibited union activities wherever they could be engaged in voluntarily. Repeal the portions of the Taft-Hartley Act which prohibit secondary strikes, secondary boycotts, secondary and mass picketing, jurisdictional strikes, and monetary donations from unions to federal political campaigns.

          12. MAKE FULL BOYCOTT POSSIBLE: Fight for the full right of workers and taxpayers to engage in full boycott of enterprises and unions with which they do not wish to associate. Allow taxpayers to withhold their taxes from governments that would spend it to enrich their favored business cronies and favored unions. Call for tax strikes, which demand either the abolition of the entire corporate welfare state, or that individual citizens be free to decide which programs they will pay for and which ones they will not.

          13. KEEP DIVESTMENT LEGAL: In addition to supporting the full rights to engage in strikes and boycotts, fight for the right to engage in divestment campaigns. Encourage enterprises to end their membership in lobbying agencies that disguise themselves as chambers of commerce, and to instead join independent business alliances that promote fair treatment for workers. Keep divestment legal, whether against enterprises, unions, or even governments.

          14. UNIONIZE ALL WALKS OF LIFE: Fight for the rights of freelancers, independent contractors, free agents, unemployed people, welfare recipients, homeless people, ex-convicts, non-violent black market laborers, tenants, open-source workers and peer-to-peer process contributors, and people of all professions. to form unions. Additionally, to demand negotiation with their employers, and to resist state control, exploitation, hierarchy, and bossism.

          15. ESTABLISH FREE UNION ELECTIONS: Ensure that union members may vote in union elections, and that non-dues-paying members and dues-paying members alike are free to abstain from voting. Advocate for the freedom of union members to hold elections featuring voter privity, with results visible and subject to review by all members of the union(s) and workplace(s) involved.

          16. FREE-MARKET ANTI-CAPITALISM: Reject the Libertarian Party's endorsement of private property as a core principle, and oppose any attempts to have the party list “capitalism” or “fiscal conservatism” among its guiding economic principles, Promote the idea that markets must be completely immune from price distortions and undue limitations and inhibitions on markets (which are caused by the state and its cronies, their hoarding, and their participation in the capitalist mode of production), in order to be both fair and truly free. Combat untrue anti-socialist and anti-communist propaganda, and ignorance about left-wing economics, through education and peaceful civil discourse. Oppose misinterpretation of the Non-Aggression Principle that excuses or ignores intimidation, exploitation, and economic pressures that coerce people and make their decisions limited and effectively involuntary. Oppose cutthroat competition, monopolistic competition, and competition to lower prices that neglects the right of workers to receive sufficient compensation for their effort.

          17. END SLAVERY, DOMINATION, & DOMINION: Oppose the extension of markets to the realms of “living capital”; i.e., human labor and work, and other living things. Empower consumers to resist the commodification of labor, man, and nature; calling for such market activities to cease. Abolish the markets for exclusively held landed property, the product of human labor, sex work under economic pressure and exploitation, toxic chemicals and poisons that kill when used properly, and perhaps the markets for human organs and endangered animal species. Support the rights of human beings, living or dead, to resist being owned, kept, domesticated, overworked, denied the right to negotiate what amounts to the full product of their labor, and required, pressured, or threatened into performing labors and actions against their will.

          18. COUNTER THE RHETORIC OF SELF-OWNERSHIP: Oppose the characterization of liberty as “self-ownership”, in order to resist the perception of the human body and its efforts as things – tangible pieces of property - which can or should be owned, which gives the impression of tangibility, suggesting that the body can or should be owned.

         19. FREE ASSOCIATION & NON-DISCRIMINATION: Oppose discrimination and segregation in the public sector, and oppose discriminatory behavior in all ostensibly private firms which receive any forms of taxpayer funded subsidies and/or services, and/or are directly involved in interstate commerce. In the social sphere, and on residential properties, support the full freedom of, to, and from association.

          20. PROMOTE ACCEPTANCE & TOLERANCE: Fight reactionaryism, religiously motivated bigotry, anti-Semitism, Judeophobia, Islamophobia, chauvinism, misogyny, homophobia, transphobia, classism, ageism, ableism, lookism, Social Darwinism, cultural monism and assimilationism, and predjuice against people of every race, color, and creed. Use education to combat ignorance of sociology, human needs, intersectionality theory, institutional privileges, commonly agreed upon parental responsibilities, the stigmatization of mental disorders (especially those that keep people from working), and the stigmatization of homelessness, poverty, and welfare receipt, especially in Libertarian circles.

Written on October 30th, 2017

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 5^th, 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: https://www.youtube.com/watch?v=MoXv6eKY1gE

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 3^rd 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