The Corner

Right-to-Work: Unlibertarian?

J. D. Tuccille makes the case over at Reason:

I . . . consider the restrictions right-to-work laws impose on bargaining between unions and businesses to violate freedom of contract and association. So I’m not cheerleading for the right-to-work law just passed in Michigan, which bans closed shops in which union membership is a condition of employment. I’m disappointed that the state has, once again, inserted itself into the marketplace to place its thumb on the scale in the never-ending game of playing business and labor off against one another.

. . .

The ideal role for the government in business-labor relations is to stay the hell out of it and let the parties work things out themselves. I may prefer one outcome or another, but I don’t have the right to enforce it by law, and that’s what right-to-work legislation does.

There is truth here — right-to-work means that employers can no longer agree, in their negotiations with unions, to fire workers who refuse to pay union dues. This is a violation of freedom of contract. But this observation neglects the wider context of American labor law.

As I explained earlier, under the National Labor Relations Act, a union can become workers’ “monopoly bargaining” agent if it wins a majority vote. This means that a union has the legal right to negotiate for all workers — even workers who want nothing to do with the organization. Once a union has been certified as a monopoly bargaining agent, it is against federal law for the employer to negotiate with workers individually.

Nothing a state does can change this. It is not the case that Michigan had a choice between allowing freedom of contract and trampling on it, and opted for the latter. Instead, under the NLRA, it confronted the fact that some workers were going to be forced into union contracts through a power given by the federal government — and the only question was whether unions and employers should be allowed to treat mandatory dues as a bargaining chip in their negotiations.

Tuccille and I are on the same page, I think, when it comes to repealing the NLRA and getting the government out of labor negotiations entirely. When that happens, right-to-work laws should go with it, and unions and employers should be free to come to whatever agreements they want to. The market will sort out which arrangements are best.

But until that happens at the federal level, state right-to-work laws can ensure that workers who are sucked via federal law into union-negotiated contract terms don’t have to pay for the privilege — an accomplishment that is achieved, admittedly, by limiting the contract terms themselves. That’s not an ideal solution, but in my view it’s on balance the more libertarian of the two options.


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