With the US Supreme Court hearing arguments today over agency fee requirements in public sector unions, its worth considering not only what the arguments are, but how we got here.
For those that may not know a lot about unions, we have an “all or nothing” system in the US. Workers are supposed to be able to freely decide if they want a union or not. If 51% of a group does, then then whole group is represented by the union, but if only 49% does, then no one can be represented by the union. Dues, in this case agency fees specifically, are effectively the only financial resource a union has to function. “Right to Work” requires unions to represent people that pay nothing, draining the resources of the union to serve actual dues paying members. Imagine any other membership organization being required by law to operate that way. “Right to Work” undercuts the Freedom of Association of union members. The argument the other way is that people shouldn’t be required to pay dues to an organization they don’t support. Now you might not fully support everything your government does, but you probably still pay taxes.
So how do we provide the Freedom of Association fully to those that want to join and those that don’t?
Let’s start by realizing that US labor laws were not created primarily for the benefit of workers. In the 19th and early 20th centuries, labor strikes were often messy and sometimes bloody events, like the 1892 Homestead Strike for example. As protests and strikes started becoming more common and widespread during the Depression, Congress passed the National Labor Relations Act of 1935. According to the NLRB: “Congress enacted the [NLRA] to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses, and the US economy.” So our labor laws were set up channel people’s anger into the “all or nothing” collective bargaining system we have today, not necessarily for the good of the workers, but to avoid the disruptions of previous strikes for businesses and the economy. The “all or nothing” system gave employers the opportunity to only deal with one union for a group of workers, or none at all. In the midst of instability the Depression, “all or nothing” collective bargaining gave employers the opportunity of stability and predictability. I say predictability because imagine one faction of workers strike for a couple hours one day because of a grievance, then a different faction of workers striking for a couple hours the next day over a different grievance. (This is how it works in some other countries today.) In other words, Congress set up a system in 1935 that allowed democratic majority rule to supersede freedom of association.
If you really want Freedom of Association in the workplace, then the only way to do that is by getting rid of our “all or nothing” system. Require employers to recognize and bargain with Unions even if they represent a minority of workers in a group, and don’t require Unions to represent people who aren’t members. Then and only then can you really have Freedom of Association for people to join or not join a Union, to pay dues or not pay dues. Now this would be a radical departure from our current system, but it would be more similar to the European system, where a much higher percentage of workers join unions. Therein lies the truth, “Right to Work” isn’t about your rights or freedoms, it’s simply about undercutting the resources and membership of unions.