There’s no escaping the fact that “right to work” laws (like the one just passed in Michigan), far from being “free market” policies, are regulatory restraints on the freedom of employers to enter into exclusive representation contracts with unions. And there’s no escaping the fact that these laws, as amended under the terms of “right to work” legislation, require unions to represent and negotiate the same wage packages for scabs as for their own members.
Some libertarians, while acknowledging these facts, take a dialectical approach to arguing for “right to work” laws. A dialectical libertarian argument evaluates a state action based not on its formal statism taken in isolation, but on its functional effect within the larger system. A new regulation, while formally a state interference with a private actor’s freedom of choice, may actually restrict a nominally private actor’s discretion to abuse a privilege granted by some similar prior state interference.
The classical illustration of this principle is libertarian writer Arthur Silber’s case of pharmacists being legally prohibited from refusing to sell “morning after” pills. Such regulations are, indeed, a formal restriction on the seller’s freedom in the market. Silber argues, however, that it is a restraint on a prior grant of state privilege. The pharmacist is in a monopoly position via licensing, patent law, FDA and medical licensing restrictions on the free production of generic alternatives and marketing them through cooperative efforts like “pill-buying clubs.” Since the pharmacist has a state-granted monopoly on the distribution of pills, she cannot abuse this power by imposing her personal moral preferences on customers.
Defenders of “right to work,” arguing on this basis, say that such laws, while formal restrictions on freedom of contract, are really restrictions on the exercise of a prior, larger grant of monopoly privileges to unions. For example Charles Baird (“The Government-Created Right-to-Work Issue,”, The Freeman, January 1, 2006) writes:
“we live a second-best world. If there were no [National Labor Relations Act] classical liberals should oppose right-to-work. The ideal policy prescription from a classical-liberal perspective is to repeal the NLRA. Until that happens, in my view a classical liberal is justified in supporting RTW laws.”
Thomas Woods of the Ludwig von Mises Institute recently argued on Facebook that, in the context of the existing legal framework, passing a “right to work” law creates a closer approximation of market freedom overall than failing to do so:
“Suppose there were a law saying Walmart was the single supplier of goods to all people, even those who did not vote for it. Left-libertarians would absolutely be justifying regulations on that monopoly as a second-best alternative to a pure free market. Substitute unions for Walmart, and left-libertarians won’t take the same stand.”
Let’s evaluate such dialectical libertarian arguments on their merits. Is the primary effect of the NLRA’s grant of exclusive representation to certified locals really to benefit the union? Who’s the real beneficiary of a grant of privilege — the “pharmacist” — in this situation? If anything, I think it’s the so-called “monopoly” granted by NLRB certification that’s analogous to the morning-after pill requirement.
Under the terms of the Wagner Act, certified unions received monopolies on representation in their bargaining units in return for very large concessions to employers. They agreed (under Taft-Hartley as well as Wagner) to abandon their most effective tactics, like direct action on the job, wildcat strikes, unannounced walkouts, sympathy strikes and boycott strikes. They relegated themselves to the role of wage and benefits negotiators within a framework of Fordist management, becoming enforcers of contracts in the period between negotiations. The job of a bureaucratic business union in the AFL-CIO, arguably, is more to enforce management control of the workplace than to serve as a weapon for labor struggle.
Many employers favored the industrial unionism model promoted by Wagner because — in return for a grievance process, seniority and productivity-based wage increases — it secured industrial peace in the workplace, allowing management to deal with a single bargaining agent that could enforce the terms of a contract on its own rank-and-file.
The “American Plan,” which corporate CEOs like General Electric’s Gerard Swope exerimented with, resembled the Wagner model of industrial unionism in many particulars. In fact Swope had tried, unsuccessfully, to get AFL chief William Greene to create an in-house industrial union to act as the exclusive bargaining agent for GE workers, on terms very like those of NLRB certification.
All this said, in a fundamental sense such discussions of whether new laws tweaking the effects of old laws are a closer approximation to “market freedom” are a trap. The fundamental role of the state is to guarantee privilege for an economic ruling class. You can be sure that the ruling class will never allow qualifications on its privileges to an extent that genuinely approximates market freedom, because it would mean no freedom for them at all. Any such qualifications will merely serve to make the privilege more endurable — and hence more secure.
The Wagner Act was passed because, overall, it served the needs of employers and forced labor to fight with one hand behind its back. It should be obvious, as a matter of common sense, that no labor regulation favored by employers will change this basic state of affairs.
The most effective unions these days are those that ignore Wagner and refuse to even bother jumping through the hoops of the NLRB certification process, instead relying on Wobbly-style direct action on the job, walkouts, public information campaigns, LulzSec-style doxxing, and broad solidarity with workers outside the workplace. The Coalition of Imolakee Workers is a good example of a union winning a long string of victories through such a strategy. After its training wheels come off, OUR Walmart will probably be another.
The Wagner regime was originally given to us as crumbs from the master’s table. It’s time to leave the crumbs on the table and go for the master’s throat.
