THE BLOG

The Fallacy of 'Right to Work'

04/01/2015 01:54 pm ET | Updated Jun 01, 2015

Wisconsin recently became the 25th state to succumb to the fallacy of "right to work" (RTW), as Governor Scott Walker has been bitten by the presidential bug. No term, however, is more misbegotten in our political lexicon than "right to work." There simply is no such right. The only remotely connected right is to seek a job on terms and conditions that employers choose to offer. Nonetheless, proponents of RTW insist that unions, through union-security agreements, abridge the (non-existing) right to work in an anti-democratic manner that threatens business competitiveness. All these specious arguments mask a concerted campaign to strip labor of its voice in political and economic affairs.

Simply put, existing labor law allows unions to negotiate with employers union-security provisions that require nonmembers of bargaining units to pay union dues as a condition of continued employment for the services and benefits they receive from representation. Proponents of RTW, which allows states to ban these provisions, argue that compulsory dues payments abridge the right to work, which is patently absurd given that all employment is conditional upon (1) possessing the requisite qualifications before hire and (2) maintaining adequate performance after hire. Employers may also impose other conditions on employment, such as non-competition, confidentiality, and pay secrecy requirements. Generally speaking, employees and managers serve at the will of employers (a right business fiercely guards) unless they are protected from unjust dismissal by grievance procedures such as those typically embedded in collective bargaining agreements negotiated by labor unions. It is organized labor, not the employer, that provides protection from such unfair treatment that nonunion employees do not enjoy.

Proponents of RTW also fallaciously argue that union-security arrangements, commonly known as the union or agency shop, are undemocratic because they compel payment from nonmembers. They sardonically ask, "What other organizations may compel nonmembers to pay membership dues or fees?" In retort I ask, "What other organizations are required by law to provide the same benefits to nonmembers?" The answer: Under labor law, unions must fairly represent all employees of the bargaining unit, regardless of whether they are members who pay dues. Nonmembers receive the same wages and benefits and other services as members do. If their dues cannot be compelled, they may choose to freeload. "Right to work" is an egregious misnomer. It is really the "right to dodge" (RTD) one's responsibility to pay for services provided by unions. No prospective employee is required to work for a unionized employer operating under a union shop. If he or she opts to work under such an arrangement, then he or she incurs an obligation to pay for the benefits and services received. And, in the first place, union-security provisions are negotiated by unions that have been chosen by majority vote of the employees to represent them. Furthermore, employers have agreed to these provisions, which have been ratified by the unions according to procedures set by their constitutions. Moreover, employees always retain the right to decertify union representatives if they are dissatisfied with the union shop or the services being provided.

Last, proponents of RTW (or, more aptly, RTD) argue that it poses a threat to business competitiveness. The absence of such a law in a state, so the argument goes, discourages businesses from entering. Why would this be the case? Employees in RTW states do not lose their rights to join unions or organize for purposes of collective bargaining; these rights are the same under the National Labor Relations Act as they are in non-RTW states. Is it because employees in non-RTW states have higher wages, higher benefits, or stronger safety and health protections? Or is it that the mere threat of unionization looms larger in non-RTW states? Let us put this latter point into perspective. The rate of unionization in the private sector in the United States is at a historic low point, at 6.6 percent; the average rate in non-RTW states is just 7.6 percent. If businesses cannot remain union-free in environments that, on average, are well over 90-percent non-union, then one might ask what are they doing wrong that makes them so vulnerable. Are they offering lower wages, fewer benefits, less-safe workplaces, and reduced security? Furthermore, formal union-organizing elections under the National Labor Relations Act touch only a fraction of the workforce: less than eight tenths of 1 percent in fiscal year 2014. The threat of unionization seems a bit illusory. (And that, to me, is not a good development.)

It is almost unfathomable that proponents of RTD would strike with such venom when labor is so down. Union density is at an all-time low. Strikes are a rarity. Organizing is at a standstill. And, with Citizens United, the political landscape has a decidedly business tilt. The objective behind the RTD push is manifestly not to uplift those whose wages are stagnant or those who struggle to secure employment. Rather, it is to entrap labor in a costly political battle, create division among ranks, and drain its financial capacity. RTD is not a bad anti-union strategy after all.