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KINSLEY: The liberal case against right-to-work laws

The enactment of a so-called right- to-work law by the state of Michigan this week is indeed, as the news media have described it, a blow against the union movement. Michigan, of all places. But it is also a blow against fairness and common sense.

“Right to work” sounds like a law guaranteeing you a job, or at least protecting your job once you’ve got it. A lot of the propaganda by the Chamber of Commerce and similar business groups is about so-called forced unionism. In fact, it’s almost the opposite. The main effect of right-to-work laws is to outlaw regulations of employment and allow your boss to fire you without cause.

Here’s a little Labor Law 101. The Wagner Act of 1935, which officially gave workers the right to join a union, and the Taft-Hartley Act of 1947, which filled in some details, were supposed to create a system that was generally welcoming to unionism but didn’t dictate any of the terms. The notion was that the government would create and supervise procedures for labor negotiations, but the details of employment contracts (such as pay levels) would be negotiated by the parties.

Before Taft-Hartley, employers and unions were allowed to negotiate a “closed shop.” That meant a workplace in which you had to be a member of the union in order to get a job. If the union threw you out, for whatever reason, you were out of a job as well. This turned some unions into guilds, which excluded minorities or employed only relatives of current members, and so on. Taft-Hartley outlawed the closed shop as well as the “union shop,” meaning a workplace where the employer could hire anyone it wanted, but you had to join a union after you were hired.

Without a rule like this, unions faced a “free rider” problem: People could enjoy the benefits of union membership, including negotiation of wages, without sharing in the cost. Not only was this unfair to those who did pay their share, but it made organizing a union significantly harder. Why should I pay union dues if my fellow workers don’t? Taft-Hartley did allow the “agency shop”: a workplace where you didn’t have to join the union, either before or after you were hired, but you had to pay union dues. This was supposed to prevent the free rider problem while avoiding a “freedom of association” problem under the First Amendment, because no one would be forced into a union.

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