Right-to-work laws (RTW) constantly take criticism from Big Labor and its anti-market allies. Those laws are said to undermine all-important worker solidarity by permitting some workers to become “free riders” by not paying dues. Unions despise dissenters and have a long, nasty history of “dealing” with workers who want nothing to do with them.
Getting rid of RTW has been one of Big Labor’s political goals ever since the Taft-Hartley Act of 1947 allowed states to enact laws against union security contracts, whereby workers must be fired if they don’t pay their dues. (Those efforts came very close to succeeding in 1966 and 1977, as I recount in my book Free Choice for Workers.)
Attacks on RTW from the anti-market left are old hat, but to hear an attack coming from libertarian and free-market quarters is rather unexpected. But in his recent article, “The Problem with Right-to-Work Laws,” Logan Albright (Director of Fiscal Research at Capital Policy Analytics) contends that those of us who oppose government intervention in the economy should also oppose RTW laws.
He writes, “Free-market advocates must ask whether these laws are the right way to reduce government power, and whether they satisfy the moral and ethnical criteria at the root of free-market and libertarian thought. Is it right to restrict the freedom to contract in order to counteract existing restrictions on the same freedom?”
A good question. RTW laws do in fact restrict an employer’s freedom of contract by making a certain sort of contract (or term within a contract) unenforceable, namely contracts with unions that require all workers covered by the collective bargaining agreement to pay union dues or else be terminated.
Twenty-four states currently have such laws and the common justification advanced for them is that individual workers should not be coerced into paying for union representation they don’t want, much less helping to pay for union political activism they may vehemently oppose. The reason why workers can be dragooned into unions they do not want stems from the way the federal National Labor Relations Act (NLRA) turns unionism from a matter of individual choice and contract into a matter of majority rule and coercion.
If a union wins a majority of the votes cast in a representation election conducted by the National Labor Relations Board or is certified as the majority choice on the basis of “card checks,” the union then becomes the exclusive representative of all the workers, even those who oppose it. In fact, it would be illegal for the employer to deal separately with workers who don’t want the union acting as their agent.
Moreover, the law mandates that the employer bargain “in good faith” with union officials, which is to say, bargaining under the NLRA takes place under the threat of costly legal action against the federal government if the company isn’t sufficiently flexible. Under contract law, bargaining under coercion isn’t really bargaining at all and cannot lead to a valid contract, but the NLRA overturns that venerable legal principle to help unions succeed.
The late professor Sylvester Petro, arguably the greatest critic of the NLRA said that the law was “incompatible with any coherent conception of civil liberty.” (See his magisterial article “Civil Liberty, Syndicalism, and the NLRA” in 5 U. Toledo Law Review 447 for his defense of that claim.) It is among the most egregious pieces of special interest legislation ever passed, trampling on the liberties of workers and employers alike while conferring unique privileges on labor unions.
One of the contractual terms that unions almost always seek is a clause requiring that all workers covered by the collective bargaining agreement must pay their dues or be fired if they do not. That is what RTW laws prevent.
But what if the employer actually wants that term in the contract? Perhaps he was formerly a union member and believes it would be advantageous to him if he maintained a good working relationship with the union. If he is doing business in a RTW state, the law keeps him from entering into the contract he desires.
There may be hardly any employers who want a contract obligating them to terminate an employee just because he won’t pay his union dues, but to the principled advocate of freedom of contract, it doesn’t matter even if nobody wants to make such a contract. Government should not tell people how they must or must not contract and that’s all there is to it.
What about the argument that the reason for RTW is to slightly offset the far more authoritarian federal law? Albright understands that this seems to be one of those “lesser evil” situations and asks, “If government supported labor unions distort markets and cause economic pain, why shouldn’t free-market advocates support laws that limit those powers?” In other words, what’s wrong with combating the coercive NLRA with less coercive RTW statutes?
It’s wrong, he argues, because reform efforts “need to go in the right direction.” Bad as the federal law is, state RTW laws are another government intervention, another limitation on freedom. “We cannot fix bad laws by enacting more bad laws,” Albright concludes.
First, I’m not at all sure it’s true that you can’t fix a bad law with another one.
It’s certainly debatable whether the enactment of RTW laws might help to bring about the eventual repeal of the NLRA (and other federal interference in labor markets). Possibly, as more states enact RTW and experience favorable economic results, (see, e.g., the recent study on the effects of RTW by Richard Vedder and Jonathan Robe), momentum will build for a true free market in labor. Moreover, Big Labor’s political clout may be sufficiently diminished from the erosion of its dues base as workers exercise the right of exit that RTW provides them that it won’t be as able to defend its existing privileges or push for yet more special interest policies.
But those speculations are beside what I think is the key point. We must ask whether, on balance, freedom expands or contracts when a state enacts a RTW statute.
On one side of the scale, we have a very small number (likely zero) of employers who wanted to have a union security clause in the contract but are legally deprived of that option and are thus less free. Against that, we must weigh the gains in freedom for the substantial numbers of individuals who think that a union costs more than it is worth and/or abhor helping to finance the statist agenda of Big Labor. Those people are liberated from having to choose between their jobs and paying into union coffers.
That is not a close call.
Suppose that RTW had never been permitted and unions had collected more money from workers ever since 1947. Would be any closer to getting rid of the root of the problem, the NLRA, today? Would the arguments made by Petro and many others have had more traction in the absence of state RTW laws? I think not. If anything, Big Labor would be all the more firmly entrenched.
So I maintain that free market advocates should support RTW while arguing for repeal of the NLRA, which would make RTW unnecessary.