Anti-Union Shop Laws
by Gabriel Conroy
Anti-Union Shop laws (AUL’s, aka “right to work” laws) forbid “union shop” contracts. In such contracts, employees must join a union after they hired. In my opinion, the best arguments for AUL’s focus on those individual workers who disagree with what their union advocates. But I oppose AUL’s. They deny employers’ and employees’ “liberty of contract.” That’s a loaded term, but I do believe that public policy ought to start with the presumption that parties be free to enter into agreements they each deems beneficial.
Most supporters call AUL’s “right to work” laws. If we look at how the term “right to work” came about, we’ll see some rationale for it. Some unions used to advocate for the “closed shop,” in which the employee had to be a member in good standing of the union in order to be hired in the first place. The Taft-Hartley Act of 1947 outlawed closed shops, but I believe some industries (e.g., longshoring, some skilled building trades) continued to use union hiring halls in a way that, to me, suggests closed shops existed in practice after 1947.
Still, in a union shop, prospective employees at least retain their “right to work” because they can be hired regardless of whether they are in a union. Further in the US, union shops are in practice “agency shops.” Joining the union, I understand, is limited to paying union dues or a portion of dues. In some cases, the employee doesn’t even have to formally “join” the union, but must pay “fair share” dues. This means that in practice, workers aren’t subject to union discipline but instead have only to contribute to the upkeep of the union from which they derive benefits. And the potential benefits are more than just wage increases. They can also include some protection against arbitrary discipline and a say in how the company is run.
The pro-AUL argument I find most convincing looks at the situation of the worker who disagrees with or is disadvantaged by what the union does. Unions are designed to protect the interests of the bargaining unit. If the interests of the bargaining unit conflict with those of an individual member, the union is designed to prefer the interests of the unit. In practice, this conflict could mean that a worker with less seniority loses his/her job when layoffs are discussed. It could mean that a worker who would be willing to keep his/her job by taking a pay cut or fewer hours might not be allowed to do so under the contract.
Perhaps what the union “is designed to do” and what the union actually does are sometimes two different things. I suspect at any rate that in most cases, the interests of the bargaining unit align with the interests of the individual worker. Even the worker who suffers a conflict in one way may very well benefit from union representation in another. And unions are made of members, and well-run unions provide an opportunity for its members to determine what the union’s policies are. But a conflict can exist, and to me requiring someone to pay for the upkeep of an organization with which that person’s interests conflicts disagrees is wrong.
To address that wrong, I support “conscience exemptions.” With conscience exemptions, employees could direct their dues to be paid to a charity. Some union shop contracts already permit religious exemptions. Conscience exemptions would expand that protection to everyone. They are not a “free ride” because a dissenting worker would still have to pay. And frankly, if so many employees go out of their way to invoke the exemption so that the union’s coffers suffer, the union already has a lot more problems than just financial distress.
Opponents of AUL’s should remember that union shop clauses are no magic bullet. In this post, I’m neglecting other issues relevant to labor policy. To name a few examples: anemic enforcement of workers’ legal rights, the difficulty of reconciling New Deal era “shop floor” models with contingent employment and service sector jobs, proposals for “first contract arbitration” and card check, prohibitions against secondary strikes and boycotts, controversies over employer free speech rights during unionizing campaigns, and what some consider the “special case” of public employee unions.
I do concede the state has the legitimate authority to deem certain types of contracts “against public policy.” I can think of good (to me) arguments why union shop contracts ought to be so deemed. For example, a strongly unionized economy, which union shop clauses can help sustain, might sometimes prevent job growth. However to me, the presumption in favor of each party’s prerogative to enter into an agreement overrides that concern.