Tuesday, March 03, 2015

Right to work and free markets

Last week, I was one of several invited witnesses at the Senate hearing on proposed right to work legislation. I made two points, One was that no legal challenge to the proposed legislation was likely to invalidate it. There is a minor preemption issue regarding the notice period for revocation of a consent to have dues deducted, but Wisconsin can have right to work if the legislature and the Governor so decide. No court will block it. I'm not sure anyone really disagrees with that.

The second was to correct the mischaracterization of the legal nature of collective bargaining agreements and what right to work actually does. As I wrote at Right Wisconsin, opponents typically argue that right to work interferes with a private and voluntary contractual arrangement to give some employees a "right to freeload."

But a collective bargaining agreement is normally not free of legal compulsion and regulatory interference. The government forces employers to recognize a union supported by a majority of employees and requires it to negotiate on all mandatory subjects of bargaining. In the absence of legal interference, none of that would be required.

Moreover, because the union can choose to be an exclusive representative (some people argue that it must do so) the law forbids employers from negotiating with anyone other than the union and forces all employees - even those who never wanted a union or who do not like the demands it made or contract it negotiated - to abide by its terms. This too is anything but a voluntary, free market arrangement.

In short, the government is all over collective bargaining. It creates it through a series of legal compulsions and restrictions. To say that right to work interferes with freedom of contract ignores all of that.

Calling objecting employees "freeloaders" - people who get something that they are not paying for - assumes that they want what the union is selling. More productive employees who feel aggrieved by lockstep compensation and union protection of less productive workers; younger workers who don't want seniority; employees who do not like the causes and candidates that the union supports (and who understand that the reductions in "fair share" or "agency" payments do not relieve them of supporting them) are all compelled to pay for what they don't want and associate with those they do not wish to associate with.

It is, of course, true that they can just go work elsewhere. It is odd, however, to hear Democrats make that type of argument given that they make it no other context. They don't say the employers should not be forced to pay a minimum wage, provide a certain number of sick days, etc., because those workers "who don't like it can just find another job." Moreover, as I noted before, the burden placed on objecting employers is, to  a significant degree, the product of government compulsion. The law has made employers recognize the union and bargain. It has made the union an exclusive representative. It hardly seems unreasonable for the state to relieve objectors of this government created burden.

This will make collective bargaining impossible only if a large number of employees opt out. But why is it a problem - much less the evil and oppression that some claim it to be  - to require unions to persuade workers that what they are offering is worth what they are charging.

Of course, one can argue that the "majority should rule" and that every worker should go along with what a bare majority of his co-workers want. But I don't see why that's true. We allow the majority to decide what government ought to do because, in the end, government must decide how it it to exercise its limited powers. But there is no corresponding argument that there must be a single contract between employers and a collective of workers.  Some people may want that, but other arrangements are possible. Indeed, roughly 93% of all private workers are employed under these "other" arrangements.

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