Saturday, October 2, 2010

'Collective Bargaining' is Compulsory Bargaining

Update (2/2/2012): Welcome RedState readers and thanks for the mention LaborUnionReport. LaborUnionReport is my go to newsfeed for everything union. Please check out my more posts on compulsory bargaining.  

This is my second broadside against unions. The first is here.

The right to 'Collective Bargaining' is the core of union power and at the same time widely misunderstood.

To the layman 'collective bargaining' is the process of voluntary negotiation between workers and their employer for terms of employment where the workers are represented by a union. This is to be contrasted with a situation where the workers are not organized and instead negotiate individually.

But 'collective bargaining' has legal protections that give it an opposite meaning (hence the quotation marks).

The United States (and many other countries) recognize a 'right to collective bargaining'. This is codified differently for different industries. Its defined by the Railway Labor Act (1926) for railroads and airlines and by the National Labor Relations Board Act (1935) for most other private industry. For public employees there are numerous laws, for example in California: the Meyers-Milias-Brown Act for California local public employees (signed by Gov. Reagan in 1968), the Dills Act for state employees (signed by Gov. Jerry Brown in 1978), and the Rodda Act for public school teachers (Brown, 1976). If that's not messy enough, there's additional legislation like the Agriculture Labor Relations Act (ALRA) for farm workers in California (Brown, 1975). (Farm workers were specifically exempted in the NLRB.)

The ALRA is illustrative of most of these laws. It encourages and protects
the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing, to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
Since 'interference' and 'restraint' includes such employer acts as firing union members, prohibiting union membership or refusing to negotiate with unions, employers are forced to deal with unions. 'Collective bargaining' comes to mean compulsory negotiation with a union. There's a pretense that employers are 'negotiating', that their rights are recognized. The wiki entry for collective bargaining defines it as "voluntary negotiation between employers and trade unions." But that's the big lie. As soon as you put 'right to' in front of 'collective bargaining', voluntary goes out the window. A 'right to collective bargaining' is compulsory negotiation.

All of the laws establishing a right to collective bargaining also specify the punishments should an employer refuse to 'negotiate'. These are principally fines, but should the employer refuse to pay, they would undoubtedly escalate to prison time. If you haven't thought of it, there's another term for negotiating under the threat of property seizure or imprisonment--Extortion. As defined by the Hobbs Act for example (which I found here):
(2) the term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
And that's what the right to collective bargaining is. It is extortion on the part of unions against employers, to obtain better wages, pensions or work conditions.

Workers do have a real right to associate, to form unions, even to make demands. That is indisputable. But they have a right to do it on their own time and own expense! An employer can rightly forbid any union activities on his property. His property rights include the right to exclude whomever he wants or make conditions for entry onto his property. Furthermore his right to dispose of his property includes the right to set the terms for giving someone a paycheck, including the right to forbid certain activities. FURTHERMORE, the employer also has the right to freedom of association, the right to chose who he wishes to work with, the right to refuse to associate with union members! None of these employer rights are recognized by collective bargaining laws.

If employers rights were recognized, as they once were, there would be workers organizations. Most employers would see the value in engaging such associations as a means to communicate policies, get feedback, manage training, etc. Those organizations would not be a threat. They would not be a threat because if the workers' organization adopted a stance or made demands inimical to the companies interests, the employer would have the means to protect himself. If all else failed he could fire the employees threatening him. (This is the right employers now lack, that we all now lack as employers of teachers, firemen and policemen and that we need to recapture.)

Would the fired workers freedom of association be thereby violated? Not at all. They could still meet in someone's house and associate to their hearts content. They could still designate representatives and even make demands, for what it'd be worth. But the employer wouldn't be forced to deal with them. The employer would be free to hire other willing employees.

There are collateral victims of violating an employer's right to refuse to negotiate with unions. Non-union members, alternate unions, and disgruntled former union members can't negotiate separately with the employer, because under most collective bargaining laws this is forbidden to the employer. Decertification is an option, but if that can't be done, the individual worker is deprived of his right to associate and voluntarily negotiate with the employer. He can only do so through union representatives. Ditto for the unemployed, the potential strike-breakers ("scabs"). The employer in most cases is prevented from hiring them on better terms (better terms for himself and for the unemployed).

The 'right to collective bargaining' falls in the category of 'positive rights' invented by marxists to obliterate freedom. A right that obliges another person to supply your means of exercising it, is not a right. Its a contradiction. A 'right to a good job' that has to be supplied by someone else a the point of a gun is absurd. A 'right to healthcare' that has to be supplied by someone else at the point of a gun is absurd. A 'freedom from want' that gives someone else only the freedom to feed you, is absurd.

As Ayn Rand put it
A “right” does not include the material implementation of that right by other men; it includes only the freedom to earn that implementation by one’s own effort.
Rights impose a negative obligation on your neighbors: don't attack me. If they imposed a positive obligation on your neighbors, like 'feed me', they would be and attack on your neighbors. Positive rights obliterate all rights. Their implication is that anyone who has been foolish enough to acquire wealth, build something, invent something, should be compelled to give it to those who haven't. And once all the wealth has been destroyed and there are no more victims to fulfill your 'right to a job' or protect your 'freedom from want', well then there's just naked savagery -- a life nasty, brutish and short.

The 'right to collective bargaining' is the right to present your demands to someone who is compelled to listen to you and pretend to negotiate with you, under threat of fines or imprisonment. You could argue that there should be a 'freedom to bargain collectively,' something that wouldn't be compulsory, but that already existed. Setting aside the decades of the Sherman Anti-Trust suppression of unions (a topic for a separate post), workers did have the right to associate and the freedom to appoint representatives. And negotiation has been 'collective' on the employer side all along, insofar as there are often many owners and that their interests are usually represented by someone else in negotiations. There is not even a need for the term 'collective bargaining' to designate non-coercive negotiation between represented groups. Its called 'bargaining' or 'negotiation'. That's what we need to get back to, negotiation without force where either party can walk away. As they say in westerns: "gentlemen, leave your guns outside."


  1. Shane,
    Well written and thought provoking. The theory behind collective bargaining law is that there is a free rider problem which undermines the interests of the majority of the workers if they voted to organize themselves into a union. If they vote for a strike, and all members are not then compelled to join in the strike, then those that do not will gain any benefits won this way and at the same time will undermine the strength of the collective bargaining. I am not advocating this argument, but I mention it, because if one is to argue against coercive representation, then this issue must be dealt with.

    Interestingly enough, in today's mostly free private sector labor market, workers can leave their jobs if they don't like the conditions. However, as an economic fact, the government's programs to increase home ownership have actually damaged the ability of workers to migrate. By propping up home prices, workers get trapped when a region loses jobs, because now home prices drop and it is a human tendency to not take a loss on one's biggest investment. We would be better off if fewer workers owned their own homes, at least in terms of labor mobility.

  2. The free rider problem I guess is that after the union obtains higher salaries, shorter hours, more rigid definitions of jobs, for the workers, those that didn't support the union also benefit. But that's the unions own doing. They start out by presuming to represent ALL workers, negotiate and their behalf, and then whine that some of the beneficiaries didn't even join the union. The solution is not to force those 'free riders' to join the union, its to only let the unions bargain on behalf of their voluntary membership! Of course the unions would never go for this since it would mean that their members would be responsible for the unions choices and might just get themselves all fired. The employer would likely choose to negotiate (in the real sense) with the non-union members to obtain cheaper, happier and less belligerent labor.

    There could be truer 'free riders' like if the union was large, non-confrontational and obtained better working conditions that couldn't just be granted to union members but would benefit everyone. But if the union and employer both decided that the bargain was to their mutual benefit, who cares about free riders? They could think about ways to monetize it, to get the free riders to pay, but that by no means should include forcing them into the union, forcing them to pay dues or forcing the employer not to speak to them. They could for example include the free rider problem in the negotiations themselves, ask the employer to cut the salaries of the non-union members. I doubt that your average employer would see so much benefit in a union that he'd punish people for not joining it. Possible I guess.

    Lastly, there's an aspect of the 'free rider' argument that shows up in other debates. It goes like this: the government pays for your emergency room visit, so you have to wear a seat belt to reduce your injuries. Basically you receive a benefit involuntarily (usually from the government), therefore you should be forced in some other way to pay for it or ameliorate the cost. How does that make sense?

  3. The problem in all this is that it virtually begs employers to lower wages to a Bangla Desh level, or at least to a Mexico level. If employees cannot bargain collectively--if they cannot say, "If you don't pay this, you just plain won't have any workers"--then employers can simply pay just enough that their employees don't starve, and by moving together to share household costs, don't get thrown into the street. You're looking at a world in which the average worker makes perhaps $4 or $5 an hour. Yes, there is a corollary effect--with nobody making enough to buy the company's products or services, because all the other employers are doing the same thing, business goes down the tubes. Henry Ford recognized the principle when he said he wanted Ford's employees to make enough to buy Fords. Modern businessmen don't think like Ford did. They all shipped their jobs overseas in order to have Chinese or Bangla Deshi workers at 50 cents an hour. Now there aren't enough purchasers of their goods and services to have a profitable business. The handful of highly-skilled or highly-connected, and therefore highly-paid, people is not enough to make much of a market. Take away collective bargaining, and it will only get worse.

  4. Allowing employees and employers to freely negotiate individually or as a group, but without the compulsion to do so, would allow employers to hire those they feel are most worth the salaries they're willing to pay. In some jobs this would mean they would pay less, perhaps much less. And yes, the undeserving unionized job would be lost to the deserving. There are 4 people involved here. There's the employer wanting to hire someone to make something, there's the unionized employee wanting to be payed more than what he deserves, there's the unemployed worker willing to work for less and actually earn the job, and there's the consumer. By forcing the employer to negotiate with the union, the employer loses, the unemployed guy loses, the consumer loses.

    And no, wages wouldn't diminish to Mexican levels. That fallacy has been debunked numerous times. Consider that a little less than 10% of the private sector is unionized. That other 90% is not working on Mexican salaries.

    Compulsory bargaining with unions is an assault on the deserving and productive, violates freedom of association, speech, assembly, and really just hurts everyone but union leaders. Its a handout to leftist organizers parading as champions of labor.