A Wisconsin judge recently struck down the state’s right-to-work law. Dane County judge William Foust ruled that under the law, “a free-rider problem is born — the ability of nonmembers to refuse to pay for services unions are compelled to provide by law.” He then sided with the three unions in the case, including the Wisconsin State AFL-CIO, that argued that the right-to-work law took their property without just compensation.
The ruling is incorrect and will almost certainly be overruled. But it does bring up a core issue when it comes to labor laws in the United States: Where Foust and the unions see “free riders,” others see a different problem: forced riders.
While unions complain about free riders, they like the condition that makes free riders possible. Unions have lobbied for a monopoly on representing all workers — even nonmembers — because it gives them a stronger hand at the bargaining table. So even a person who wishes to take advantage of a right-to-work law is still a forced rider — or, as unions put it, a free rider.
There is a better way.
Under current laws, worker’s choice is not a possibility. Private-sector workers must wait for Congress to act. But for the public sector, states have the power to free both employees and government unions from forced representation. A version of worker’s choice has already been introduced in the Michigan legislature by state representative Gary Glenn, and in Oregon a worker’s-choice initiative may be on the ballot in the fall.
With worker’s choice, unionized employees would truly have an option. They could remain union members, paying dues and receiving representation, or they could be among the nearly 88 percent of workers in the country who work without a union contract.
These employees could negotiate agreements tailored to their own needs rather than be shoehorned into a one-size-fits-all union contract. A worker could negotiate a merit-pay deal that rewards his or her extra efforts and results, benefiting the employer as well with a more productive employee. Unions, by contrast, generally prefer that raises be given out strictly on the basis of seniority.
Employees could negotiate agreements tailored to their own needs rather than be shoehorned into a one-size-fits-all union contract.
Worker’s choice would give employees who get into trouble at work the freedom to represent themselves in the most effective manner. Most union contracts require workers in disciplinary proceedings or other dealings with their employer to go through the union.
If an employee has a union representative who doesn’t take his problem seriously, as in the case of a Teamsters’ local president who called nonmembers’ grievances “frivolous,” he is out of luck.
There’s another way for unions to ditch their “free riders.” Private-sector unions can adopt what is called a “members only” agreement, but in return they must give up the power to force an employer to engage in collective bargaining. That makes such arrangements unattractive to unions, and rare. Judge Foust ignored cases and experts on both sides of the forced-unionism debate, calling these types of agreements “disingenuous.”
Under worker’s choice, there would be no drastic change to collective bargaining. Only one union will have the power granted under laws to represent all the unionized employees at a worksite.
Why should states or Congress address the free/forced-rider issue? For unions, the trend toward right-to-work is accelerating. Earlier this year, West Virginia adopted right-to-work, putting a majority of states in the right-to-work column. And states like Kentucky and Missouri are just one election away from adding to that number. If unions are truly worried about free riders, as they claim, then worker’s choice is the answer.
Right-to-work supporters have less to worry about — for now. The Wisconsin county judge’s ruling will likely be overturned on appeal, and right-to-work will stand in Wisconsin. But if President Obama does get his nominee placed on the Supreme Court, there is a slight chance the union’s far-fetched argument against right-to-work might be approved for the entire country.
While it is, in fact, unfair for unions to be required to bargain for those not paying them (ignoring the fact that they fought for the monopoly to represent everyone), it is more unfair to force workers to pay for unwanted services.
Thankfully, those are not the only two options. The better way is to allow unions to say goodbye to workers who do not want to pay, and workers to say no thanks to unwanted representation.
— F. Vincent Vernuccio is director of labor policy for the Mackinac Center for Public Policy and the author of Worker’s Choice: Freeing Unions and Workers from Forced Representation (Mackinac Center, 2015).