A legal challenge slowly winding its way through courts in Idaho, West Virginia and Wisconsin aims to have right-to-work laws declared unconstitutional. Organized labor hopes a more liberal Supreme Court will toss out over 70 years of precedent for the significant number of American workers who don’t want to be involved with a union.
Fortunately, there is a solution that should turn the current court cases, never mind the potential Supreme Court challenges, into a moot point. Called “Worker’s Choice,” it would make unionized workplaces into much more free and fair environments.
Unions are challenging right-to-work laws under the takings clauses of state constitutions and the U.S. Constitution’s Fifth Amendment, which says that private property cannot “be taken for public use, without just compensation.” Unions are arguing that right-to-work laws amount to a taking because, while employees in right-to-work states are not obliged to support a union, these “free riders” are still, by law, represented by unions.
Unions’ complaint here rings more than a bit hollow, given that unions themselves have lobbied to keep the current all-or-nothing situation in place. These so-called free riders are really “forced riders,” many of whom would like to represent themselves, but can’t. Even in right-to-work states where unions cannot get workers fired for not paying them, workers must still accept union representation whether they want it or not.
The unions’ proposed solution to the free/forced rider problem is to compel every worker to be represented by and pay money to a union. In their ideal world, workers would pay up and largely let someone else speak for them. But this solution ignores a more commonsense approach that even most union members support.
According to a Google online survey of rank-and-file union members across the country—including those who are happy with their union--almost 70 percent believe that employees should represent themselves with their employer if they decide to opt out of paying dues. The poll (sponsored by the National Employee Freedom Week campaign which runs August 14th to 20th) was not geared toward anti-union or independent workers. The same union members were also asked if they would leave their union if they could do so without penalty. More than one-quarter, or 28.7 percent, said they would use the right to exit. In short, even though two-thirds of those surveyed said they would stay in the union, a large majority supported giving full freedom to those that wanted out of the union contract. A less generous interpretation would be that they didn’t want to pay for workers who wanted nothing to do with them.
Congress and state legislatures could recognize this reality by giving all parties what they claim to want. Congress could change federal law to give this right to private sector employees while states could do the same for public. Let unions represent only those workers who are willing to be represented by unions, which frees them of the expense of representing everyone else. At the same time, let those workers who don’t want to be represented by unions handle their own negotiations over compensation and workplace rights.
Being able to bargain directly with their employer will allow these workers to get out of a one-size-fits-all contract and negotiate for wages and working conditions tailored to their individual needs. The seniority system most union contracts mandate only allows workers to receive a raise by logging another year on the job. But if a worker wants to be rewarded for how hard she works, she could use Worker’s Choice to negotiate for merit pay.
For employers, Worker’s Choice does not create any increased burdens. It still maintains the status quo where only one union represents all unionized workers at the worksite. Further, it treats former union members the same as the 87 percent of workers in the economy who are not represented by a union. This means the employer doesn’t have the same obligations to these workers, such a being forced to bargain, as they do with unions.
Union leaders may not like Worker’s Choice approach initially but it is by no means clear they would lose a great deal from it. A chief selling point of organized labor is that union representatives are good at negotiating the best possible deal for workers. If they can deliver on this promise, non-union employees won’t be non-union for long — and those who are in the union will have little incentive to opt out. However, workers shouldn't be forced to pay for a service they do not want simply to keep their jobs.
F. Vincent Vernuccio is the director of labor policy at the Mackinac Center for Public Policy. Jeremy Lott is an adjunct scholar at the center.
The views expressed by authors are their own and not the views of The Hill.