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:
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 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
