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Right-to-Work Legislation is Not the 'Good'

michigan-protestsby Gary Chartier and Sheldon Richman

Our friend Shikha Dalmia doesn’t share our view of so-called “right-to-work” (RTW) laws, or that of her fellow Reason writer J. D. Tuccille. Along with such other modern libertarians as Milton Friedman and Percy L. Greaves Jr., we believe libertarians should object to such laws. She doesn’t.

RTW laws are problematic for multiple reasons. For instance: they interfere with freedom of contract. And they boost state power and help to legitimize and intensify state intervention inthe economy. (See Gary Chartier, “What’s Wrong with Right-to-Work,” and Sheldon Richman,“Right-to-Work Laws and the Modern Libertarian Tradition.”)

For libertarians who embrace deontological natural-law prohibitions on interference with others’ just property, the fact that such laws forcibly impede contract formation will be, on its own,enough to rule out supporting them. Libertarians who oppose interference with others’ property and labor because of its systemic consequences will have similar reasons to reject RTW laws.

Of course, the world of work is already distorted by a range of government interventions. And some proponents of RTW laws see them as simply efforts to reduce the level of government involvement in the workplace. On this view, the Wagner Act framework forces employers to recognize and bargain with unions, something they wouldn’t do otherwise, and thus effectively enables unions to force unwilling workers to be members or at least pay union expenses. But we’re not sure this is an accurate characterization of the situation.

In brief: an employer might be entirely willing to bargain with a union absent the existing labor law framework to achieve certain kinds of efficiencies and to promote workplace comity. In addition, an unwilling employer could perfectly well be brought to the bargaining table by a union employing nonviolent tactics—something that certainly happened before modern labor law was in place. So government action isn’t a necessary condition for the conclusion of a union contract. And, since the government doesn’t force every employer to conclude a union contract,workers who would prefer not to work in union workplaces are not in any sense forced by the state to join unions.

Dalmia argues that RTW laws are Pareto-improving: they harm no one while benefiting employers and workers who wish to conclude nonunion contracts. But by restricting workers who could nonviolently persuade employers to conclude union-shop contracts from doing so, and by preventing employers who might see advantages to such contracts from making them with unions, RTW laws do, in fact, forcibly prevent some people from realizing their preferences.

In other words, an RTW law takes away a bargaining chip in the form of a possible contract provision. In a free environment, a workers’ association might offer a concession of value toan employer in return for a union-shop provision; alternatively, it might offer to forgo such a provision in return for a concession from the employer. RTW laws foreclose this sort of bargaining; it is simply irrelevant that their advocates can’t imagine why an employer might agree to such a provision.

Proponents of RTW laws will say that the Wagner Act removes any incentive for a worker association to bargain over a union-shop agreement, but that’s precisely our point. Wagner and other federal labor laws are the culprits: they should be the targets of those who favor untrammeled workplace freedom and who seek to enhance workers’ ability to change their workplaces. We have no wish to make the perfect the enemy of the good. Instead, we challenge the claim that enacting RTW laws is a move toward the good! And we do so because such laws prohibit a peaceful practice rather than repealing bad legislation.

The Wagner Act framework was created to domesticate and pacify unions. But someone who maintains that RTW laws are justifiable because they mitigate the effects of prior interventions should recognize that there’s an obvious counter: In line with Greaves’s argument, a history of interventions over many centuries has boosted the position of the employing classes in relation to those they employ, and any concessions made to labor under Wagner might be defended as responses to those prior interventions.

We don’t intend to justify any intervention. Thus, we reject the Wagner Act framework in toto, including Taft-Hartley. With Murray Rothbard, we oppose “extending the powers of the federal government to apply criteria of ‘fairness’ to unions as well as employers,” “extend[ing] government power over labor relations instead of removing it completely.”

Dalmia says getting rid of Wagner isn’t a viable libertarian strategy because it “under-estimates the capacity of people to put up with hell. It assumes that the worse things get, the more people are motivated to change them. That, however, is far from clear.”

Our answer is, first, that Wagner is becoming irrelevant. (See Steve Chapman on the “Irrelevance of ‘Right-to-Work’ Laws.”) Second, the end doesn’t justify the means. And, third, Dalmia might be read as implying that a union shop is, in fact, hellish, worth embracing by workers and employers only, if at all, to pacify union bosses; but, as we have already noted, we think there are reasons to imagine that union shop arrangements might emerge in freed markets.

As Rothbard observed in For a New Liberty, the Wagner framework “serves, first, to aggrandize the power of government over labor relations, and second, to foster a suitably integrated and Establishment-minded unionism as junior partner in government’s role over the economy.”While it obviously offers some advantages to organized labor, it hobbles labor organizing in other ways. As libertarians and as workers, we would be happy to see Wagner and Taft-Hartley repealed; we oppose state intervention in the economy on a consistent basis, and we believe that,especially in a world in which network culture facilitates concerted action, workers would have nothing to fear from a free labor market. Meanwhile, we see no point in making today’s unfree labor market more state-riddled—and therefore less free—by limiting the options available to workers and employers.

C4SS trustee and senior fellow Gary Chartier is a Professor of Law and Business Ethics, and Associate Dean of the School of Business, at La Sierra University. He is the author of Economic Justice and Natural Law (Cambridge University Press 2009), The Analogy of Love (Imprint Academic 20007), The Conscience of an Anarchist and the forthcoming Anarchy and Legal Order (Cambridge 2012), as well as articles in journals including the Oxford Journal of Legal Studies, Legal Theory, Religious Studies, and the Journal of Social Philosophy. He holds a PhD from the University of Cambridge and a JD from the University of California at Los Angeles.

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