Libertarianism and the Right to Work

By On June 25, 2011 · 99 Comments · In Current Events, Left-libertarianism, Libertarianism, Social Justice

Right to Work legislation is in the news again, as New Hampshire Republicans fail to round up sufficient votes to become the 23rd state to enact such legislation.  Over at the Washington Examiner, Timothy Carney sets out (with a little help from RadGeek Charles Johnson) a libertarian case against Right to Work laws, but then wonders (with a little help from F.A. Hayek) whether the case in favor of them is stronger than he thought.  Grover Cleveland, at Pileus, thinks it is.

Right to Work (hereafter RTW) laws basically prohibit agreements between labor unions and employers that make membership in a union,or payment of union dues, a condition of employment.  Libertarian-leaning proponents of such laws say they are needed to ensure that workers aren’t forced to join unions they don’t want to join.  But there is a seemingly devastating problem with this argument, which Carney notes in his original post.  For what  RTW laws actually do is ”interfere with the right of contract and they bar certain consensual economic arrangements — specifically, they bar employers from agreeing to hire only union workers.”

Workers might feel like they are being coerced into joining a union in situations where a closed shop agreement exists between the union and the employer.  But might not workers feel just as “forced” to work overtime, or wear a uniform, at jobs where this is required of them?  And would not the correct libertarian response be that, so long as they accept the employment voluntarily, whatever requirements their employers place on them are not really coercive in the morally significant sense, regardless of how workers perceive them?

In his second thoughts, Carney relates a passage from Friedrich Hayek, which reads:

If legislation, jurisdiction, and the tolerance of executive agencies had not created privileges for the unions, the need for special legislation concerning them would probably not have arisen in common-law countries.  But, once special privileges have become part of the law of the land, they can be removed only by special legislation.  Though there ought to be no need for special ‘right-to-work laws,’ it is difficult to deny that the situation created in the United States by legislation and by the decisions of the Supreme Court may make special legislation the only practicable way of restoring the principles of freedom. [Constitution of Liberty, p. 279, reprinted in A Tiger By The Tail: The Keynesian Legacy of Inflation, p. 92 - see here]

So, on this view, RTW laws are necessary because previous legislation has stacked the deck in favor of unions by means of special legislation like the Wagner Act.

But here the left-libertarian response seems precisely on point.  Sure, government has not been a neutral player in the relationship between capital and labor.  But if the deck has been stacked in any direction, it has been against workers, not in favor of them.  Thus what Will Wilkinson describes (in another context) as the Progressive view of the matter seems far more sensible:

Progressives generally think, not implausibly, that government has already put a thumb on the scale in favour of employers through the legal definition of the character and powers of the corporation, such that it is manifestly unjust for government to fail to put an equalising thumb on the scale in favour of unions.

At least, it seems that way so long as we focus only on the conflict of interest that exists between employers and unions.  Such a conflict certainly exists, and most legislation probably does favor the interests of economically and politically powerful employers over less-powerful workers.  But there is a second conflict of interest as well: that which exists between unionized workers and non-unionized workers.  Put simply, to the extent that unionized workers obtain concessions from their employers in the form of higher wages, better working conditions, greater job security, etc., such concessions often come at the expense of non-unionized workers who have a harder time finding work, or adequate compensation for the quality of their work, than they otherwise would.

If the only conflict of interest were between workers and employers, then strengthening unions by blocking RTW legislation might make sense as a way of righting the scale that has already been tipped so heavily in favor of employers.  But if strengthening unions means hurting non-union labor, then the solution seems not to be so clear.

At least, not to me.  But this isn’t an issue on which I have terribly well developed views.  So I’m curious to hear your thoughts!

UPDATE: Hyena in the comments links to an extensive left-libertarian treatment of labor issues from Kevin Carson here.  Well worth taking a look at.

 
  • Anonymous

    Hi Matt,
    You write, “For what RTW actually do is ‘interfere with the right of contract and they bar certain consensual economic arrangements — specifically, they bar employers from agreeing to hire only union workers.’” Can you (or the experts you reference) cite a single case where an actual, real world employer desired to sign a closed shop agreement and was legally prevented from doing so. This is, in my opinion, extremely far fetched. You must realize that under a closed shop agreement, in the event of a strike the employer will be bogged down in mandatory negotiations for months while his business suffers or even dies, whereas under a RTW law the employer could simply hire willing workers, whether exisiting employees or outsiders. This criticism of RTW is like saying that laws against mugging are wrong because they deprive people of the right to be mugged. At the most, this argument suggests that RTW laws should have an exception for employers who sincerely desire to commit business suicide.

    The real libertarian criticism of closed shop laws are that they cut off the right of workers to decline union representation and to avoid paying union dues against their will. Workers who believe that they can negotiate for themselves a better deal with their employer than the union are deprived of this opportunity, as are those who don’t believe that union representation is worth what they must pay in dues are deprived of this choice, i.e. these laws are inconsistent with the right of soverign moral agents to choose for themselves. Very simple, case closed in my view.

    • http://blog.hecker.org/ Frank Hecker

      Regarding your second line of argument, it seems to me to apply also to other voluntary arrangements that are ostensibly designed to improve the condition of those participating in them but do so at the expense of limiting the freedom of the participants to opt out in various ways. For example, I live near Columbia, Maryland, a planned city of 100,000 people in which almost all residential property is subject to a homeowners association lien (comparable in size to local property taxes) and restrictive covenants of various sorts. If I moved to Columbia I might well feel that I don’t want to be subject to that lien or to those covenants, because I don’t find the various amenities that the homeowners association provides me to be of value, or I feel I can do a better job of maintaining my property’s value myself (e.g., by making home improvements forbidden by the covenants). Does that mean that from a libertarian perspective homeowners associations are “inconsistent with the right of sovereign moral agents to choose for themselves” and therefore I should lobby for a “right to reside” law that allows me to opt out?

      I think your first line of argument is more relevant here: To the extent that libertarianism (at least in its main political incarnation at present) is about increasing freedom of action for businesses and those who own and manage them, then of course right to work laws make sense; they’re motivated by the general desire to avoid regulations that increase costs to employers and restrict what they can do vis-a-vis employees. Homeowners associations and similar arrangements aren’t relevant to this agenda, so they get a pass even where they might involve similar philosophical issues regarding personal liberty.

      This doesn’t mean that right to work laws are unjustified, it’s more that I think they have to be justified more based on their benefits to people in general, as opposed to being justified based on considerations of liberty in general or the liberty of particular employers or employees. Are people in a state with RTW laws better off economically than those in other states without them? Are people in the US in general better off economically than people in (say) Denmark or other countries with high levels of unionization? And perhaps more important from a BHL perspective, are poor people in states with RTW laws or countries with low levels of unionization better off than otherwise–which is related to the point Matt Zwolinski closed with regarding the impact on non-unionized labor.

      • http://twitter.com/KipEsquire KipEsquire

        It’s facially absurd to analogize HOAs to labor unions. Matt’s whole point is that the employer is coerced into dealing with unions ab initio. Is the landowner required to recognize an HOA involuntarily? Of course not – the landowner CREATES the HOA.

        Now, if the state were to suddenly strip landowners of their right NOT to have an HOA ab initio and suddenly invent a “right” of his neighbors to force him into such a regime*, then (and only then) the analogy would be robust.

        *Which, of course, could never ever happen in a free society: http://www.azcentral.com/news/articles/2011/06/26/20110626peoria-neighborhood-watchdog.html

        • http://blog.hecker.org/ Frank Hecker

          Good point, though note that I was looking at this from the perspective of the potential employee/home purchaser coming into the situation once the arrangement is already in place, not from the point of view of the employer/original landowner. That’s also the way Mark Friedman was apparently looking at it in his second line of argument — making the case against closed shop arrangements in terms of their being an infringement on the liberty of the worker, not on that of the employer — and I think that’s also the way RTW laws are typically justified to the populace at large (as the very name indicates).

          • Anonymous

            Hi Frank,
            Thanks for the response. There is a lot to say about HOAs, not all of which I have totally thought through, and I think you raise an interesting point. However, one obvious difference is that “closed shop” laws exist in entire states and even regions within the U.S., so that a worker wishing to avoid them must move to an entirely different part of the country. Whereas, those wishing to avoid HOAs can easily do so. Also, a group of homeowners or a developer who wished to establish a community in which each homeowner WOULD be solely responsible for the management of his individual property (i.e. no HOAs) now and forever should be able to do so in MD, and if they can’t, THIS is immoral. But in “closed shop” states a comparable option is taken away from employer/employees who don’t want unions–they can never be sure that a union will not come and organize, cutting off the right of the employer and employees who wish to opt out of union representation to make agreements independently of the union. 

          • http://blog.hecker.org/ Frank Hecker

            Both you and KipEsquire are correct in that the analogy between HOAs and closed shop arrangements is not exact. My point in bringing it up was really to push back against the notion that the case for RTW laws was purely or even primarily based on considerations of the liberty of the employee. “Right to work” is a great slogan, but I think what we’re really talking about is a larger question of whether unions (or at least unions of a particular type) are good for the economy as a whole and the people affected by it, and I think that’s more an empirical than a philosophical question.

            A related point is that, although you might find the occasional disgruntled homeowner who’s mad at his HOA and wants to get rid of it, for the most part the interests of the homeowners and the developers (i.e., the original landowners) who establish them are aligned. That’s not the case with employers and unions of course, at least not in the US.  It may the case that there are other ways to organize unions and union-related laws to make those interests more aligned (as suggested by j_m_h), but then I think there would still be the issue of whether such employer/union alliances would be good for those businesses and employers not party to them.

          • Anonymous

            The problem with debating about whether unions are, as you say, “good for the economy,” is that (as you seem to recognize) this is impossible to prove one way or the other. I, as a libertarian, take a different approach, i.e. if persons have a right to do something, like bargain for themselves, this trumps utilitarian considerations. So too, even if I wish to offer an opinion that really offends people and contributes nothing to the vaunted “marketplace of ideas,” I still have a right to express it. I acknoweldge that this position breaks down at the extreme edge–given a choice between a rights violation and a nuclear bomb going off killing millions, I’ll accept the rights vioilation. But that hardly seems to be the case with “closed shop” laws. 

          • http://blog.hecker.org/ Frank Hecker

            Actually, I don’t think it’s impossible to assess the impact of unions on the economy. It’s just that I haven’t read enough of the relevant literature to have a settled opinion on the question.

            Based on some of the other comments here and on other sources I’ve skimmed, I’m also skeptical that a rights-based approach is that cut and dried in terms of the conclusions one is necessarily led to, especially given some of the past and present government distortion of the corporation-union relationship (e.g., government restrictions on the types of labor-related actions unions can engage in).

            So speaking personally I’d rather put the classic “right to work” liberty-based argument to the side and focus instead on questions relating to whether, where, and how unions of some sort might play a useful role in the 21st century economy (including what Federal and state legislative changes might be warranted in relation to that).

          • Damien S.

            There’s also stuff beyond unions, like worker-owned and -operated businesses, and workplace democracy.  They seem to work well when tried, but capital concentration doesn’t favor their formation.

          • http://twitter.com/VALiberaltarian VA-Liberaltarian

            You’re right on the HOA front. The HOA can be created some time in the future and then later home purchasers come into the situation. In the same way the closed shop could be done under the mutual agreement of everyone at a business, but later on it limits future employees coming in.

            I think Kip is being absurd in assuming that the only way an employer would want to deal with unions or work with a closed shop is through coercion, where the incentives may be in place for them to want to negotiate with a union because it makes it easier to plan long term. That is, after all, why some of the push for unionization laws in US history came from larger corporations.

            Politically, Frank is right. Most RTW laws are justified by the political rhetoric focusing on closed shops being an infringement on the worker, not the employer. But that doesn’t necessarily mean that the actual justification in the courts and legal system is the same. Politically, most of the justification for smoking bans in bars and restaurants is that customers don’t like smoke. But legally, the justification is that it is protection of employees at the bar and their health.

          • Anonymous

            Why do you think Boeing just spent some $100 million to relocate a manufacturing plant from Washington State (closed shop) to SC (RTW)? Why did EVERY foreign transplant automaker (BMW, Toyota, Honda, etc.) elect to locate to RTW states? Why is CA losing hundreds of corporations to TX? Yeah, companies sure love closed shop laws, don’t they. Give me a break!

    • http://twitter.com/VALiberaltarian VA-Liberaltarian

      Can you provide an example of a situation where a worker believes that he or she can negotiate for themselves a better deal with their employer than the unions?

      • Anonymous

        Sure. My sister for many years taught AP English in an inner city school. My sister is very intelligent. Year after year the vast bulk (80%) of her students passed the AP test while the students of the other AP English teachers passed at a rate of less than 40%. Under the union-negotiated contract, she and her fellow teachers were paid solely on the basis of senority. She believes that if school principals were free to compensate based on merit, she would have been paid more. Somehow, I don’t think my sister is alone in the world in thinking she might have been better off without union representation.

        But this is not the sole point. Workers who dislike unions for ANY reason (their politics, on general principles, etc.) should not be FORCED to be represented by them or forced to pay dues.

        • Hyena

          Public unions aren’t on the table because they’re fundamentally different. Specifically, in most cases they have a monopoly or approximate monopoly (95%, say) in the service.

          If you join a union shop, you should be forced to join the union. Don’t want to join? Don’t apply or don’t take the job. Simple as that.

          • Anonymous

            The point of my example–the unfairness to and coercion of the worker–remains exactly the same, whether we are talking about public sector or private sector jobs. If you need help seeing this, imagine that my sister worked in a private school in a closed shop state. She would then not be coerced by a public sector union, but the result would be identical. Does this help?

            Sorry, but your second paragraph is just absurd. Imagine that the state gave unions the right to simply steal money from the workers–would you then say, “well, if you don’t want to join, don’t take the job?” When the thief says: “Your money or your life!,” he is giving you a choice, but he is still acting in a morally outrageous way, no? Think about it for awhile.

          • Hyena

            First: yes, I’d still say that.

            Second: the difference is in the monopoly power. If your sister wanted to, for example, work in a hotel, there are union and non-union hotels and union hotels under different unions one-to-the-other.

            If all schools were private schools, then your sister would have a large diversity of employers, unions, non-unions and so on. As it happens, this is pretty much not the case and she has the choice, in her area, of one school system and one union. 

            Public sector unions are off the table because they are the story of government monopoly over some industry and nothing more.

        • http://twitter.com/VALiberaltarian VA-Liberaltarian

          “Workers who dislike unions for ANY reason (their politics, on general
          principles, etc.) should not be FORCED to be represented by them or
          forced to pay dues.”

          Sure. And what about voters who dislike one political party for one reason or another. Why should they be FORCED to be represented by them and forced to pay taxes for causes they don’t support?

          • Anonymous

            You may be shocked, but I totally agree with you. Citizens shouild NOT be forced to pay for things they don’t agree to or want—that’s why I’m a libertarian!! As a “minimal state” libertarian I do make exceptions for national defense and law enforcement, but my reasoning is a little too involved to explain here. If interested, you can read my book. 

          • http://twitter.com/VALiberaltarian VA-Liberaltarian

            Why the exception for national defense and law enforcement? We can privatize both. David Friedman and all that.

          • Anonymous

            Very briefly, on national defense there is the problem of free riders, plus the unfairness of asking some people to pay more than their fair share for the supply of an essential public good. For law enforcement, I don’t want to be subject to the administration of justice by a private group that is not regulated by society at large, assuming for purposes of my argument that the society in question is one substantially governed by the rule of law. This is a complicated question, and the above is just an outline.

          • Anonymous

            The free-rider aspect doesn’t bother me. The problem I cannot see a solution to is where some want to participate in some foreign conflict while other’s don’t. There’s no way that that situation will not result in war coming home to those who never wanted to be involved.

            I’m not sure if there’s a connection to modern terrorism from external sources in the USA but I think there’s some type of parallel.

          • Hyena

            Ummm….

            The objection to having a privatized military is that it doesn’t work out well historically. Italy, for example, came to be largely dominated by the condottieri because they had accumulated vast wealth through their contracts and, importantly, had an army.

            The nationalist military system has worked a lot better vis-a-vis the mercenary system from a political stability point of view.

          • Anonymous

            One might ask what definition of working better might be. I’m not really disputing you’re point but find the following from Wikipedia somewhat interesting: “Further, a prisoner was always more valuable than a dead enemy. In consequence of all this their battles were often as bloodless as they were theatrical. Splendidly equipped armies were known to fight for hours with hardly the loss of a man (Zagonara, 1423; Molinella, 1467).”

            So if warfare was largely show and victory often determined by negotiation I have to then ask: who is worse off after the war? Probably politicians and, perhaps, the wealthy. If the average Joe’s life is largely unchanged but avoids the physical damages to person and property of war maybe it’s not so bad a system.

            I would concede the problem of “disorderly conduct and rapacity seem often to have exceeded that of other medieval armies”. Clearly this aspect would also need to factor in in the evaluation. However, we might also point to the behaviors by our current police forces well documented in The Agitator blog. It’s not clear the problem is mercenary versus national but controls and selection processes.

            The other thing the Wikipedia article implies is the presence of economies of scale in the size of the group seeking defense — small states and cities face higher unit cost in providing military services. “Towards the end of the 15th century, when the large cities had gradually swallowed up the small states, and Italy itself was drawn into the general current of European politics, and became the battlefield of powerful armies – French, Spanish and German – the condottieri, who in the end proved quite unequal to the gendarmerie of France and the improved troops of the Italian states, gradually disappeared.”

            If this inference is true then we must also ask if the progress in technology between then an now changes the structure of production and perhaps has eliminated the economies of scale present in the past.

            Last, I think the experience of the Hansa in Germany shows a different history of reliance on private/contract military services. The Hansa seems to have been rather successful for 350 to 400 years without maintaining a military of it’s own like a national military.

            Still, even if your objection was overcome I would not be sure doing away with a national level structure for military actions is a good idea for the reason I stated.

          • Hyena

            The issue is that the period in which the condottieri are mostly taking prisoners overlaps with the period in which taking prisoners, in general, is a main purpose in war.

            The rapacity of the condottieri included seizing power for themselves, even among Italian republics. That’s a bit worse than what the police are engaged in.

            Lastly, this isn’t a discussion of “private military forces” proper. This is a discussion of contracting out state military force. I just noticed this fact and so, that our discussion is completely irrelevant to the question.

          • Damien S.

            I’d think high technology has made the economies of scale even more extreme.  Besides, there’s a fundamental issue of geometry.  If you double your radius, you double the perimeter you have to defend, but quadruple the resources and population you have to defend it with.  Twice as many potential soldiers and taxpayers per unit of border. Advantage goes to the big.

            And nationalism seems to motivate people to risk their lives better than money does.  How’d France go from the usual European stalemates to conquering most of Europe in a few years?  The Revolution.  Advantage nation-states with a complelling ideology over mercenaries.

          • Damien S.

            My memory of Machinery of Freedom is that David handwaved away the national defense issue as a deep problem he wasn’t up to solving.

          • Anonymous

            I believe Damien is right on this, which confirms that the supply of national defense is the toughest nut to crack for proponents of individual anarchy.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      I don’t quite understand your mugging analogy.  A mugging is, by definition, a non-voluntary transaction.  So I’m not at all sure what a “right to be mugged” would mean.  

      An agreement between an employer and a union to set up a closed shop is at least the kind of agreement that could in principle be voluntary.  Do I know of specific examples in which a company wanted to do this?  No, but I wouldn’t expect to know them, even if they were abundant.  Suppose, though, that there aren’t any examples.  Suppose that no company would voluntarily agree with a union to set up a closed shop.  Can you explain why, on libertarian grounds, it should be made illegal for them to do so, as RTW laws appear to do? 

      Moreover, if Kevin Carson’s analysis is correct, then might it not be the case that the reason more companies do not desire to enter into closed shop agreements is that the state has hindered the bargaining power of unions? 

      As for the “real libertarian criticism” you present in your last paragraph, I’m again a bit unclear.  When you say “closed shop law” you mean laws that allow closed shops, not laws that mandate them, correct?  But if that’s the case, then I don’t see how closed shop laws violate anybody’s rights at all.  Take an analogy.  Suppose an employer establishes a contract with a uniform manufacturer, and requires every new employee to purchase a new uniform from them every year they are employed.  In this scenario, workers who believe they can get a better uniform somewhere else are being seprived of this opportunity, as are those who don’t believe that the uniforms are worth it.  But surely no libertarian would argue that the rights of employees are being violated in this case, right?  

      • Anonymous

        Three things. (1) I believe that it is extremely disadvantageous from the economic perspective for an enployer to voluntarily enter into a closed shop agreement (see comment above about Boeing, transplant automakers, etc.).  It would be like volunteering to be mugged (financially). But I agree, if any employer actually wants to do so the law should let them.

        (2) If Carson’s idea is to get the state ENTIRELY out of the business of regulating employer/employee relations, then I am all for it. But, the results will be much worse for unions then he thinks, but better for workers overall.

        (3) Your counterexample doesn’t work. Workers who don’t like the uniform arrangement, can if it is material to them, search for employment elsewhere–like any other term of employemnt, if unreasonable, it gives the worker an incentive to leave. And, the workers can attempt to negotiate this item with the employer, pointing out that it makes it less attractive for the employees to remain. Employers do NOT like to lose good employees, believe me I know. But this situation does not involve the state, just the employer/employee.

        On the other hand, closed shop arrangement are a matter of state law. They prevent by law a worker from even attempting to negotiate a different arrangement than agreed to by the union. If the union declares a strike, everyone must go out, even those who prefer to keep working. The closed shop is a tyranny of the majority, imposed by a majority of workers on the minority, and enforced by the state. So the only alternative for the dissenting worker is to leave the state or an entire region.

        • Damien S.

          I see no evidence of this “state law”  you allege.  Closed shops and union shops are contracts between the union and the employer, enforced by the state only in the same sense as any other contract is so enforced.  No law specifically enabled them; rather, Taft-Hartley banned closed shops, and so-called right-to-work laws ban union shops.  The state is interfering on the side of the employers, not the unions.

          • Anonymous

            Closed shop laws are different precisely because they permit a majority of workers to impose their will on the minority. Suppose a majority of workers in a particular workplace are Catholic. Would a state law that provided that these workers could declare Catholicism the official religion of that site, banning all other religions and atheism, be just? Of course not, but closed shop laws do the same thing. An employee who simply wishes, for whatever reason, to represent him/herself is legalled precluded from doing so. What other type of state law can you identify that has this effect? 

            There are no federal laws that ban closed shop laws, which is why 28 states have these laws.

          • Damien S.

            You seem to be conflating (formation of a union with sole bargaining power via majority vote), with (a closed shop where only union members can be hired).  The US has majority vote unionization, but closed shops have been banned since 1947, so the two are clearly separable.

            As a libertarian, do you favor anti-discrimination laws, forcing employers and landlords to associate with people they find distasteful on various grounds?  If not, I’d find your Catholic-workforce example inconsistent.  If so, yay, but one can say that religion like race is irrelevant to the workplace, while economic bargaining issues aren’t.

          • Anonymous

            This is from West’s Encyclopedia of American Law:
            Exclusive Representation
            A majority of the workers in a bargaining unit must designate a representative with the sole or exclusive right to represent them in negotiations with the employer’s representative (29 U.S.C.A. § 159(a)). The employer is not required to bargain with an unauthorized representative (§ 158(a)(5)). Once a valid representative has been selected, even workers who do not belong to the union are bound by the collective bargaining agreement and cannot negotiate individual contracts with the employer (J. I. Case Co. v. NLRB, 321 U.S. 332, 64 S. Ct. 576, 88 L. Ed. 762 [1944]). As a corollary, the employer may not extend different terms to any workers in the bargaining unit, even if those terms are more favorable, unless the collective bargaining agreement contemplates flexible terms (Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 95 S. Ct. 977, 43 L. Ed. 2d 12 [1975]).
            As you can read for yourself, in states w/o RTW laws, once a majority decides it wants a union, this cuts off the right of any dissenting worker to bargain for him/herself. When states enact laws that allow unions to act as the EXCLUSIVE bargaining agent, the above-quoted federal law kicks in. These state laws are called closed shop, because to have a job in that workplace you must be represented by the union (if it has been selected as the representative). Any questions?

            Regarding anti-discrimination, I am totally opposed to any state discrimination against any group, either in the content of the law or how it is enforced. I do support people’s right to choose to be bigots in their personal lives, just as I think they have a right to “hate speech” or Holocaust Denial, no matter how odious those views are. But my analogy works precisely because the state IS enforcing these objectionable labor laws, and it is thus not like private discrimination. 

          • http://profiles.google.com/entelechy77 Kurt Horner

            You’re clearly still not understanding what a closed shop is. The statutes above merely cause the union to bargain on your behalf whether you like it or not. They do not require union membership unless that is specifically negotiated between the union and the employer. RTW laws prevent closed ships from being agreed to. They do not allow individual bargaining. If a union gets NLCB certification, individual bargaining is outlawed, period. States cannot opt out of that provision of labor law.

          • Anonymous

            I know closed shop laws don’t require union membership, but they require dissenting workers to pay union dues and to be represented by the union, against their will. This is the point–actual union membership is irrelevant. And, critically, if people don’t have to pay dues to work, and are used to bargaining as individuals, they do not vote to elect unions as their representative. This is why Boeing just spent a fortune moving an assembly line to S. Carolina and why all the transplant automakers have located in RTW states. In the absence of coercion, unions lose out.

          • http://profiles.google.com/entelechy77 Kurt Horner

            The law only requires representation against their will (and that part of the law is not optional at the state level). Neither dues nor membership are required. In non-RTW states an employer may agree to have dues required, and/or membership after a specified period but this is not mandated by the law anywhere in the US. 

            (Damien: Yes, technically a pure closed shop is illegal, but union shops are very close. I was using “closed shop” as a generic term for a workplace where dues and/or membership are required at some point.) 

          • Damien S.

            AIUI, closed shops are illegal, period.  RTW laws further disallow union shops.  I’m not sure if there’s great practical significance to the distinction, but the distinction is there.

          • Anonymous

            OK, my terminology may be wrong. I may be referring to “closed shop” laws, when I mean “agency shop” laws. But my description of the effects of these law–mandatory dues and forced representation–are correct.

        • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

          I don’t have the empirical knowledge necessary to assess your first two points.  But I do think my counterexample works. :-)

          Again, the situation in the absence of RTW laws simply gives companies the option to set up a union shop.  They don’t have to do it.  If they choose to do it, then yes, workers who take a job at that company are bound to some extent by majority decisions.  But so what?  Libertarianism, as I understand it, is not opposed in principle to the “tyranny of the majority.”  There’s nothing wrong, from a libertarian perspective, from a private club deciding to select a dress or speech code on the basis of majority vote.  And there’s nothing wrong with a company doing so.  So long as each individual consents in some way to the majority decision making procedure, it is justifiable on libertarian terms.  And since people can choose to work, or not work, at a union shop, I fail to see how there is any libertarian problem with their being bound by majority decision-making and whatever rules the company and union choose to impose.  If they don’t like it, they should work elsewhere.  I just don’t see how this is any different from any other policy a company might choose to adopt.

          • Anonymous

            With all due respect, I don’t think you understand how the law works. In ANY state, with or without RTW laws, even if an employer elects NOT to have an agency shop arrangement, once the union gets 51% employee support, it becomes by law the EXCLUSIVE bargaining agent for all employees. Again, the employer has nothing to say about this once the 51% threshold is reached. What RTW laws do is make is much less likely that the 51% level will be reached, because employees in such states do not need to pay union dues to work at a workplace, so it is harder for the union to oraganize. As a practical matter only, the RTW laws make unionization less likely, which is why companies like to locate in RTW states.

            On the moral issue specifically: if a state passed a law providing that if an employer and a majority of employees all practiced a certain religion, they could if they wished make that religion the official religion of that workplace, and only those religious holidays and no other would be given as days off, no contrary religious expression would be tolerated, etc. be OK with you?  How does this differ in principle from what you are saying?

          • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

            I’m neither a lawyer nor an expert on labor issues, so you’re quite possibly right that I’m misunderstanding the law.  So what you’re saying is this:
            If I’m an employer, and 51% of my employees vote to form a union, I have to treat that union as the exclusive bargaining agent of all employees, regardless of my desires or the desires of the other 49% of employees?
            If that’s true, then that seems bad to me, and is definitely not something that I support personally, or that I see as compatible with libertarian principles.
            But I also don’t quite see the connection between this rule, and the RTW issue.  My understanding of RTW laws is that they prohibit agreements between labor unions and employers that make membership in union or payment of union dues a condition of employment.  Your claim is that RTW laws make it less likely that the 51% threshold will be reached because they deprive unions of the power to compel employees to pay dues.    
            But if I’m an employer in a non-RTW state, then either I’ve made an exclusive agreement with a union to set up a union shop or I haven’t.  If I have, then the 51% issue is moot, right, since the the place of business is already a union shop by virtue of the employer’s agreement?  And if I have not, then the mere fact that I am in a non-RTW state doesn’t give the unions the power to raise funds until after they’ve cleared the 51% threshhold.  So in neither case does the presence of a RTW law seem to make the vote to establish a union more likely to go through.  Unless I’m missing something?
            Even if it did, though, your argument seems to amount to the claim that RTW laws are justified because they make it less likely that companes will establish closed shops.  But if the mechanism by which they do this is by violating the rights of the employer and labor union to enter into a voluntary agreement, then aren’t they illegitimate on libertarian grounds, regardless of how desirable their effects might be?

          • Anonymous

            Earlier in this thread, I was corrected by a commentator about how the labor code works, and I am an ex-lawyer, so it does get complex. Your first paragraph accurately summarizes my understanding of the law, and I am pleased we share (with Hayek, C of L, p.269) the intuition that this coercion is wrong.

            Your second paragraph also accurately summarizes my views about RTW laws. But, in the third paragraph, you are missing the fact of what unions call the free rider problem. In a RTW state, the employees can just sit back and wait to see what develops. If a union comes in secures the 51% support and negotiates a better deal than the status quo, all employees get the benefit w/o having to pay dues, either before the 51% level is obtained or after. So, many workers do not join the union or pay dues, and this makes it harder for the union to organize that workplace.

            Finally, as said above, I agree that if an employer in a RTW state sincerely wishes to require union membership and union dues as a condition of employment at the workplace, it should be able to do so. But for the same reason that Boeing just spent a huge sum of cash to move one of its assembly lines from Washington (agency shop) to SC (RTW), most employers do not wish to make love to unions, they wish to escape from them. So, by far the most common case in both RTW and non-RTW states will be employers hoping that the union does not obtain the 51% level of support, which will trigger the coercion discussed in paragraph 1. Hope this helps.

          • Anonymous

            It’s rather odd that both the employer and unions don’t like the required exclusive bargaining status — if I’m reading this thread correctly. 

            If so, where did it come from? Why is it so hard to get rid of that specific aspect? Seems like the only source of the political support should be the non-unionized workers but they are generally taken to be politically weak since they have no organizational structure.

          • Anonymous

            No, unions very much like the current law. If they just get 51% support, they become the bargaining agent for ALL workers under federal law (see the excerpt from the legal encyclopedia above). This law was passed in a different era of American history, when unions were considered the answer to widespread poverty.

          • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

            But, in the third paragraph, you are missing the fact of what unions call the free rider problem.
            I assume you meant the fourth paragraph?  But I’m still not sure how the free rider problem is an issue given what I said immediately below:

            if I’m an employer in a non-RTW state, then either I’ve made an exclusive agreement with a union to set up a union shop or I haven’t.  If I have, then the 51% issue is moot, right, since the the place of business is already a union shop by virtue of the employer’s agreement?  And if I have not, then the mere fact that I am in a non-RTW state doesn’t give the unions the power to raise funds until after they’ve cleared the 51% threshhold.  So in neither case does the presence of a RTW law seem to make the vote to establish a union more likely to go through.

            The free rider problem might be a problem, but it doesn’t seem to have much to do with the presence or absence of a RTW law per se.

          • Anonymous

            I’m not sure this will answer your point, but let me try. In a non-RTW state the unions can include in a labor agreement the requirement that ALL workers pay union dues as a condition of employment. And, these agreements almost always do. So, in a non-RTW state, 51% union support = 100% workers paying union dues. In RTW states, the above provision in a collective bargaining agreement is illegal. So, 51% in support of the union as bargaining rep might still only result in 25% dues paying members. Thus, I think unions have less incentive and ability to oraganize in RTW states.

          • Anonymous

            That makes more sense to me — somewhere I got the impression that even in the non-RTW states those against the union might get the same contract but were not required to pay union dues.  That’s why I thought unions didn’t like the exclusive bargaining condition.

          • Anonymous

            Let me try a different approach. Nationwide, unions represent about 8% of the private sector workforce. In RTW states it is much lower. So, typically in a RTW state the employer does not need to negotiate with a  union. The unions would like to be elected as the bargaining representative. Tthe way to do this is to threaten a strike; but w/o a union, there can be no strike. And, due to the free rider problem described above, they can’t get to 51%. So, RTW laws preserve the status quo, and the status quo = no union representation.

    • https://profiles.google.com/arickteson Ricketson

      “Can you (or the experts you reference) cite a single case where an actual, real world employer desired…”

      The above statement is nonsensical. The employers sign the closed shop contract in order to get something in exchange from the union (such as calling off a strike). The above question is like asking whether I really wanted to sign that two-year contract with my phone carrier. No I, didn’t; but that is totally irrelevant to whether it was a voluntary interaction.

      “The real libertarian criticism…”

      …addresses a totally superficial point. These laws against closed-shops are built on top of large and complex system of power and privilege. You can spend hours debating their merits on “libertarian” grounds, but that only distracts from the initial infringements. There is no way to get involved in this debate without getting dragged into a class-war debate(capitalist bosses, vs. union insiders, vs. unattached workers), in which case the only question is “whose side are you on?”

  • Anonymous

    I think there are several cuts at the issue one can take. As Matt points out the bargaining this labor law involves is not merely employer-employee but employer-union-non-union. Anyone familiar with Public Choice literature will recognize the risk non-union workers face: little to no consideration in the formation of the law.  We can actually take that a bit farther when we realize the many employers are not large corporations but small businesses. While large corporations and unions can be described as concentrated narrow interests that’s not true of non-union employees or small businesses. Both these groups will lose out in the political process of generating legislation. If one buys into the view that small businesses are the source of employment growth (and possibly economic development and growth) rent-seeking legislation in the form of labor laws may be quite harmful to a society.

    There’s also the empirical question that Mark brings up above. Theoretically RTW laws may restrict an employer’s ability to enter a closed shop agreement. That doesn’t mean it has so perhaps it’s no different than laws against my flapping my arms and flying. Still, RTW legislation should not be written in a way that prevent any employer from entering into such an agreement.

    The flip side of this might be that legislation that is not RTW should not be allowing unions to strike in order to force all employees into a union or to force an employer into signing  closed shop agreement. That’s seems like extortion. Similarly, legislation that then allows a majority or workers to decide that will be the outcome seems similarly wrong. There’s no justification for assuming that all aspects, or even some of the economic aspects of our lives, should be determined via some democratic process. Why is union representation a public issue? Seems like it’s a private choice that some will choose and some will not. The vote will show who is on each side of the line here but it’s not something that should decide how all of us will “live” going forward.

    My last thought is about the idea of who “owns” the job. It’s not clear to me that a job is owned by anyone. Employers have control of capital and equipment and, typically the output.  Workers control labor skills, some capital (e.g., tools, special and general skills…). The job/employment is the blending of both sides and is more a relational item than something separate. It seems to me that too much of the discussion and thinking behind these types of issues and resulting legislation/regulation is driven by some concept of getting ownership of the job. I think if we move away from that perspective, and solve the Public Choice aspects, we can come up with a set of rules that allows flexibility from non-union shops to closed shops without the rules creating some structural.

    • http://twitter.com/VALiberaltarian VA-Liberaltarian

      I like the approach of your argument, which focuses first on looking at the real world impact of unionization laws falling more heavily on small businesses than larger corporations. That’s true of almost all forms of regulation, which tends to increase compliance costs on small businesses to drive them out of business. It’s wrong to say that employment growth comes from small businesses, the connection is really between new businesses that smart out small today, the founder’s on the cover of Forbes in five years, and in ten years you wonder how the world ever got along without company X. So we should care more about policies that inhibit new businesses from starting up, not necessarily policies that may burden existing small businesses that have stayed small for years and contribute little to the economy. Unless you find a reason to care about the share of the economy under small businesses vs. big businesses.

      I think this comes down to a mutual interest between unions and big business to have legislation that favors both interests at the expense of both non-union workers and small businesses. This moves towards a more corporatist model of labor markets being controlled by larger interest groups.

      • http://blog.hecker.org/ Frank Hecker

        I agree whether your comment to the effect that it’s not small businesses per se driving employment growth, it’s small businesses that get big, and sometimes very quickly. I’d add that much of the hiring by a growing business, especially one in hypergrowth mode (not uncommon in the IT industry I work in), is speculative hiring on the expectation of future robust growth, hiring that can’t be justified based solely on current revenues, or revenues under a relatively conservative growth scenarios. I think such hiring in particular is likely to be sensitive to labor arrangements that restrict employer flexibility in hiring and firing.

  • http://blog.hecker.org/ Frank Hecker

    One other comment: On the general subject of the effect of unionization on employment, a recent “Democracy in America” post by Matt Steinglass, “The effect of organized labour“, has links to good references on the subject. (Steinglass himself finds the arguments that unionization lowers overall employment to be persuasive, but remains not 100% convinced, partly because he is “simply generically suspicious of arguments which advance the interests of rich people while arguing that when poor people unite to pursue their interests, they only make things worse for themselves”.)

    • Anonymous

      Unions are never made up of poor people, nor instigated by poor people.

      • Damien S.

         Yeah, those United Farm Workers were really raking it in before they unionized, and Cesar Chavez was a typical slumming millionaire.

        Or, you know, not.  Your preference for ideology over reality is showing again.

        • Anonymous

          You may be right re Chavez. But there may be some devil in those details. Will get back to you on that. But still, the ratio would now be 9:1.  Any others?

          With your charge about “ideology over reality”, combined with other retorts you have flung like a monkey in a tree does feces, I wonder if you ever were a libertarian. You seem not to even understand the basics. Especially concerning economic statements. How can you argue with substance without having stepped in the shoes of the opposition?

          • Damien S.

            What’s your source for this 9:1 ratio?

            What, in fact, is your evidence that all (or now, most) unions and union-organizers have been non-poor?  Why should we treat this claim with enough respect to bother refuting it?

            I understand the basics just fine, thank you.

          • Anonymous

            See Mark Friedman’s comment below re the 9:1. I was speaking metaphorically. I suspect the the difference is much much greater in reality.

            The United Farm Workers went from over 70,000 to  mere 5000 members in less than twenty years. This was in spite of having very rich and powerful friends, like Gov. Jerry Brown, who championed the Agricultural Labor Relations Act, which compelled collective bargaining. Murray Rothbard once wrote that half of the funding for the UFW came from outsider “nostalgic” liberals. 

            In add, what were these migrant workers’ pay compared to what folks got back home in Mexico?

            Unionization is much more suited for high skilled/in demand workers. Unions cannot beat economic law. The migrants were a dime a dozen, replaceable. It is a good thing that the UFW was not too successful- as it would have choked-off opportunity for those laborers trekking north, and made grapes more expensive for everybody.

            At any rate, it seems that the UFW, in its initiation and survival, has not been even close to a pure poor people organization. To the extent that it is– it has mostly failed anyway.

        • Anonymous

          MOST, not all unions members, live well above the poverty line, i.e. UAW members, the Teamsters, public sector unions, etc. The key point is that when unions make labor more expensive, employers substitute other imputs or move overseas. So, if I make cars, and the price of steel goes up, I use other materials like aluminum, plastics, etc. When labor costs go up, I substitute technology, like computerized systems instead of real people doing customer service. This process most hurts those, mostly individuals who ARE poor, who are looking to break into the labor force, i.e. to get their first job. Milton Friedman’s chapter on this in CAPITALISM & FREEDOM is very persuasive, if you care to read it. 

          • Damien S.

            Raising their members above the poverty line is the whole point of unions!  You’re just saying they’ve been successful.  That’s not the same as saying they weren’t poor to start with.   You’re also taking examples from a mostly de-unionized country, one which e.g. Walmart workers really need a union but have been unable to form one.  Today’s surviving unions may be middle or upper-working class, but that doesn’t mean that’s representative of union history.

            Your logic seems to make it wrong for labor to ever try to earn more than subsistence wages.  Yet profit-maximization is the legitimate goal of businesses.  Interesting.

            I read C&F in high school.  Thought it was really awesome at the time.

          • Anonymous

            But you don’t seem to get his point. If I’m a poor minority carpenter trying to get my first job, I will be willing to work for $25/hr. But if all the employers in my area have union contracts that specify $50/hr., and I can’t join the union, I am frozen out of the workforce. By economic logic, employers will be willing to either hire fewer carpenters and pay them more per hr., or hire more carpenters, and pay them less per hr. By forcing employers to go for option #1, the union contracts help the “ins” and hurt the “outs.” If you really care about the poor, and I mean the real poor, you should prefer the second option.

          • Damien S.

            So if workers join, they’re impoverishing other workers and driving businesses overseas.

            If businesses join, they’re just pursuing greater efficiency, more power to them.

            There seems to be an asymmetry here.  Rooted, of course, in the asymmetry of initial bargaining power.  Those who have a lot can make more, the rest can take their crumbs.

            BHL seems to be about defending, as usual for libertarians, the ability of the rrich to hollow out the middle class, under a veneer of caring about the poorest.  The developed middle class is told to not be selfish and to sacrifice their hard-won gains; the rich are congratulated on how their further enrichment trickles down to the Chinese, with no need for them to actually sacrifice anything whatsoever.

            This is not very convincing.

          • Anonymous

            I would find your response more convincing if there were solid evidence that promoting unions and the other elements of the liberal agenda actually WOULD improve everyone’s life, particularly the poor and middle class. Pardon me if I remain skeptical about this, in part for the specific reason I gave in my last comment.

          • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

            Hey, don’t saddle BHL with Mark’s views.  :-)

          • Anonymous

            Hey, Matt, I have a bleeding heart too (!), although maybe mine bleeds a little less profusely than yours, and maybe I bleed in a slightly different way, i.e. my rationale for assisting the needy may be different than yours.

      • http://blog.hecker.org/ Frank Hecker

        To add some data points to the discussion, the Bureau of Labor Statistics publishes data on median weekly earnings of union members vs. non-union members. In general union members and those represented by unions do have higher median earnings.

        • Anonymous

          Thanks Frank!

  • http://twitter.com/VALiberaltarian VA-Liberaltarian

    Doesn’t this demonstrate the fundamental bandaid approach of government? Government passes policies that strengthen capital vs. labor. Later on, to solve the “problem” this creates, government passes policies that strengthen organized labor vs. capital. This in turn means we later have to solve the new “problem” through government policies that protect unorganized labor vs. organized labor, and small businesses vs. big businesses.

    I suspect that the real people losing out in the status quo right now are the supervisors and managers in the growing service/retail/creative sectors of the economy and the independent contractors who exploded in number during the recent housing boom/bust.

  • http://pulse.yahoo.com/_B2KDEPLTVWPWWSY23CDK2K4NFY Avery

    Thanks Matt. You’re right that an RTW (or as I prefer: “so-called right-to-work,” aka SCRW) just rules out a kind of contract rather than giving anyone any rights they previously had. If, as defenders of management like to claim, there really is a market, then any potential employee who does not want to work in a union shop can start his own business. If he cannot do this, then we are already talking about an unfree environment and focusing on collective bargaining agreements as the cause of reduced freedom is spurious.

    But two further points. First, the potential conflicts of interests are not just employer-employee and employee-employee, but employer-employer. Being surrounded by employers who are treating their employees in a way I think is immoral pushes me to either do the same, thus violating my conscience, or go out of business. In much the same way, Sunday-opening laws force religious Christians to open on Sunday. SCRW laws prevent union-friendly employers from both maintaining good relations with their unionized workforce and staying in business.

    Second, the “thumb on the scale” in favor of corporations as against unions is underspecified. One important way the government puts its thumb on the scale for bosses is by creating and protecting their collectives. If there can be a limited liability corporation that counts as a person under the Constitution, a board that is legally required to maximize shareholder returns, a  chamber of commerce, and so on, then to pretend that the problem of compromised liberty is caused by union contracts is, again, spurious. If abolishing agency shops was part of a package that also abolished chambers of commerce, the limited liability corporation, etc., then we would have started talking. If not, then it’s just an easily explained bias.

    • Damien S.

      Nice post!

      The US has been putting the screws on labor since 1947 via Taft-Hartley.

      Do individuals have the right to form a partnership, democratically governed amongst themselves, which offers their labor at rates they negotiate as a single business, and to make contracts with other businesses to be the primary or exclusive provider of labor for those businesses?

      Isn’t the above paragraph exactly what a labor union is, only dressed up in business-friendly terminology?

      Would not so called right-to-work laws be a bizarre and arbitrary government limitation of the right of such partnerships to form and contract?

      • Damien S.

        And libertarians frequently assume me that market monopolies can’t happen, or be stable, without government intervention, so there’s clearly no reason to think that such labor partnerships could monopolize the work force and destabilize the economy.

      • Anonymous

        Exactly. Something is very strange when libertarians say corporations should be free to any consensual interaction they want, including interaction with actual human beings who have almost no power…but then legally restrict what two corporations can do with each other, simply because one corporation is a ‘union’.

        Yes, yes, the government clearly interferes with the creation of unions by making them from all employees when 51% agree…and? If it wasn’t for the government, no corporations would exist at all.

        I think it would be interesting to repeal most of the the Wagner Act in exchange for repealing ‘right to work’ laws. Keep the things that say companies can’t retaliate for legal organizing, and that’s it. That’s the entity of any sort of ‘union’ law. And unions can negotiate any damn contract they want.

        Sure, it would mean that 51% of workers can’t vote yes and make everyone join a union…but it would also mean that 30% can invent their own union and strike, and people can randomly join them at will. And this isn’t the 1930s anymore, where corporations can hire people to beat strikers.

        It would also, more importantly, that unions would just sympathetically strike with each other. Oh, and for kicks, if workers don’t like their negotiated contract, they can leave the union and, you know, make another one.

        Good luck dealing with _those_ problems.

        Until then, corporations can’t run around yammer how they need ‘less regulation’, but also insist that they be _barred_ from signing a specific sort of exclusionary contract with another corporation. Because like all the other crap _they_ want to stick in contracts, with that contract they’re negotiating against an entity _with actual power_, and need the government to ‘protect’ them.

  • Hyena

    I’m typically with Kevin Carson on this point: the major problem is the government mandated structure to unions, which precludes them from organizing effectively. I think that absent these laws, union power would grow steadily. The problem is that, as firm-specific capital becomes more important, workers become more difficult to replace. A union that went guerrilla on mangement–unannounced walk-outs, slow downs, no shows and so forth–could cripple a business and bring management to the bargaining table.

    In fact, I doubt many executive compensation packages would survive the status side of the fight, being lost as a trophy for the victorious unio.

    • Andrew Cohen

      Quick Question: can you give an example of a “government mandated structure to unions, which precludes them from organizing effectively”?

      • Hyena

        I’ll do one better: Kevin Carson has an extensive treatment of the topic here: http://c4ss.org/wp-content/uploads/2010/09/C4SS-Labor.pdf

        • Andrew Cohen

          Actually, that is not one better for me.  Its 57 pages!  Too much other stuff to read ahead of it!  If you pointed me to specific pages, that would be welcome.  Alternatively, any simple example will do.  

          • Hyena

            Fair enough.

            The Taft-Hartley Act creates 60 day notice periods for strikes. This removes the most effective tool of labor, the wildcat strike. Since companies are often near their breaking point when employees are–hence the longer hours, pay shenanigans and so on–a wildcat strike can bring management surrender in a day or two. Mostly Taft-Hartley and Wagner create conditions where you have bureaucratic unionism that is ineffectual but legally protected, while the basic rights of workers are not.

    • Anonymous

      But in a true free labor / right to contract environment, employers could protect themselves from such behavior in the employment agreement. They could secure enforceable promises from workers not to engage in such behavior, not to unionize, etc. In some cases the repercussions could be financial. Others could call for specific performance.

      I expect some people would see this as horrible, but I think it’s perfectly reasonable and not problematic at all. Sure, you’re going to get people accepting onerous requirements. We already have that, everywhere. But the market acts on these attributes just as it acts on others. Price, after all, is just another negative attribute of a good. The company requiring a year’s notice before quitting, with stipulations of specific performance, is at a distinct recruiting disadvantage to the company that doesn’t. I don’t mean to crack open indentured servitude arguments here, I’m just leaping to an extreme example to demonstrate the point.

      • Hyena

        No, that wouldn’t work at all.

        In the walkout case, they’re already in general violation of their contract and yet this brings parties to the table. You can’t enforce a labor contract very well, it’s just a practical fact, because every mode of enforcement makes your situation worse, not better.

        • Anonymous

           There are methods to combat that, if they are allowed. Requiring employees to post bonds ensuring their adherence to the contract is one. Another would be a clause that barred the employee from working anywhere else as long as the employer was willing to complete the employment contract and the employee was refusing to. But I take your point: neither of these directly and immediately help the employer weather a strike as an operating business, and yet they are so onerous that they would be unlikely to become common place.

          • Hyena

            Posting a bond would never become common place, it would make it impossible to hire employees. There is no solution to the iterated prisoner’s dilemma; tit-for-tat minimizes losses, it does not yield better outcomes than everyone cooperating.

  • http://www.facebook.com/people/Michael-Giberson/100000176233472 Michael Giberson

    Matt, I don’t quite get the “conflict of interest” between employers and unions. Admittedly unions want higher wages, etc., for their members and employers want lower wages, but this is all negotiation over the terms of continued cooperation in what is fundamentally a cooperative arrangement. Your capital and my labor combine to produce an economic surplus, and so let us decide how to divide the surplus.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Yes, what Damien said below – it’s a conflict of interest within a harmony of interest, as, I think, just about any exchange that creates a cooperative surplus is.  Does that sound right?

      • http://www.facebook.com/people/Michael-Giberson/100000176233472 Michael Giberson

        A “conflict wrapped within a harmony,” yes that is about right (sort like spouses discussing division of household tasks, and perhaps sometimes as intense).

        Although the points below by Damien and Hyena add to the characterization. Workers negotiate with management, but to a degree workers and management compete over shares of the surplus created by their joint cooperation with capitalists/owners. Fundamentally a cooperative enterprise, but on the assumption the enterprise will continue to operate and create a surplus, competition for shares of the surplus.

    • Anonymous

      I think one should carefully define what surplus we’re talking about. There are a number of markets interacting with one another, each will have market determined costs and some producer surplus. To suggest that’s it’s all surplus is to say markets have no social value in setting prices.

  • Damien S.

    Yes, but the fight over that surplus can be pretty intense.  Should it go 90% to the capitalist and 10% to be distributed among the employees, or vice versa, or 50-50, or should the capitalist get paid the same as any individual worker (above and beyond what’s needed to maintain the capital), or other? The difference between extremes can be tens of thousands of dollars a year for the employees, or billions for the capitalist. Rather big stakes.

    • Hyena

      It’s at this point that I’ll point out the not-always-obvious: many times, the fight is really between the union and management, not the capitalists. Corporations currently favor capital gains over dividends, so most of the profits go to management either through pay or an increase in their personal kingdoms.

      In fact, I think a fight between the unions and the capitalists would be interesting to watch. I halfway bet it would end up a fight where it’s the unions and capitalists against management, where the union secures benefits for the shareholders using their power and the shareholders in turn give some to the union.

      • http://blog.hecker.org/ Frank Hecker

        Apropos of your first paragraph, in today’s Washington Post columnist Steven Pearlstein claims (based on research by Bebchuk and Fried) that “the top five executives capture about 10 percent of the net profits of large public companies, up from about 5 percent in the early 1990s”. As you say, with corporations (and investors) focusing on stock appreciation and not dividends, it’s easy to miss the impact of this. (Although if stock prices actually do reflect the present value of future earnings, diverting an extra five percent or more of earnings in perpetuity could be significant–if I have time later I’ll do the math.)

        Your second paragraph reminded me of the penultimate chapter of “Rules for Radicals”, in which Saul Alinsky got all excited about shareholder campaigns — although again I think the trend to people investing in index funds probably reduces the potential impact of such a technique today.

  • Carly Rose Jackson

    Correct me if I’m wrong, but I believe that unions have monopoly power over a certain industry within a certain geographic area.  When I was learning about filmmaking, it struck me as unjust that there was only one union to choose.  I like the idea that contract-workers could use an organization to provide some sort of retirement plan and insurance.  Why can’t a worker shop for different kinds of union representation?

    • http://twitter.com/VALiberaltarian VA-Liberaltarian

      Workers can shop for different kinds of union representation, at least in some situations. I recall a situation in Las Vegas a few years ago in which some teachers were unhappy with how the teacher’s union was treating them and they tried to instead organize as a chapter of Teamsters. That resulted in some controversy, to say the least.

    • Hyena

      Because the law is set up to prevent it, really. The whole point of labor law was to regularize union membership and consolidate it in a few bureaucratic organizations. By 1950, labor had the same sort of monopolistic, vertically integrated, highly bureaucratic structure the corporate world had.

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  • http://pulse.yahoo.com/_HSKXAWKADVEXMD6SG7DRBB7H3I Silly Wabbit

    The economics literature ( the real stuff, not the stuff from the think tanks) essentially finds that RTW laws have little to no effect on labor union organizing success or labor union density. In short,  they seem to be largely symbolic gestures to big business. 
    At the risk of sounding rude, it seems that a lot of commenters don’t understand what RTW laws really are. RTW has nothing to say about whether or not an employer can hire replacement workers during a strike; federal law gives employers the right of permanent replacement. Few unions have monopoly control over any particular industry (please recall that union density is around 11% in this country….)….the film industry seems like a good exception to this rule and in a few parts of the country craft unions (carpenters, plumbers, etc.) are strong but don’t have a monopoly. Remember that there are broad swaths of the country in which there are essentially no unionized workers. 
    Quite frankly, a number of posters have a clear anti-union agenda and make arguments based upon productivity -based pay vs. seniority. These issues are determined through a bargaining process between workers (typically thru elected union reps with the help of a union-paid attorney) and employers. At the end of the process, the workers vote to accept or reject the agreement. In other words, if the teachers in the example described above (why is is always teachers in these examples?) wanted some kind of piece rate system or pay-for-As scheme they could make those proposals in contract negotiations. My suspicion is that, on both sides of the bargaining, this type of compensation package is not generally wanted. However, there is nothing that prevents a high degree of performance -based pay in a union shop. In my limited time as a union member my contract contained a number of performance-based incentives (it was very regimented work which is probably more conducive to piecerate or performance bonuses). These incentives seemed to be pretty popular among the employees and presumably management was okay with them. I really don’t understand why people think that performance-based pay can’t exist in a union shop; its really strange how folks get that notion. 

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