A Wisconsin judge recently struck down the state’s right-to-work law. Dane County Judge William Foust ruled that under the law, “a free-rider problem is born — the ability of nonmembers to refuse to pay for services unions are compelled to provide by law.” He then sided with the three unions in the case, including the Wisconsin State AFL-CIO, that argued that the right-to-work law took their property without just compensation.
The ruling is incorrect and will almost certainly be overruled. But it does bring up a core issue when it comes to labor laws in the United States. Where Judge Foust and the unions see “free-riders,” others see a different problem: forced riders.
In a state without right-to-work, a person in a unionized shop must work under the terms and conditions negotiated by the union, and pay the union just to keep their job.
Even in right-to-work states, the union contract still binds the worker. Under right-to-work a worker cannot be fired for not paying the union, but that person must still accept union representation whether they want it or not.
While unions complain about free riders, they like having the condition that makes free riders possible. Unions have lobbied for a monopoly on representing all workers — even nonmembers — because it gives them a stronger hand at the bargaining table. So even a person who wishes to take advantage of a right-to-work law is still a forced rider, or as unions put it, a free rider.
There is a better way.
The solution to the free/forced rider problem is not to require payments to unions; it is “Worker’s Choice,” letting workers represent themselves, while also freeing unions from having to support nonmembers.
Under current laws, Worker’s Choice is not a possibility. Private sector workers must wait for Congress to act. But for the public sector, states have the power to free both employees and government unions from forced representation.
Versions of Worker’s Choice have already been introduced in the Michigan legislature by Rep. Gary Glenn, and to voters in Oregon, where it may be on the ballot.
With Worker’s Choice, unionized employees would truly have an option. They could stay a member of the union, pay and receive representation, or they could act like the nearly 88 percent of workers in the country who work without a union contract.
These employees could negotiate agreements that are tailored to their own needs rather than be shoehorned into a one-size-fits-all union contract. A worker could negotiate a merit pay deal that rewards his or her extra efforts and results, benefiting the employer as well with a more productive employee. Unions, by contrast generally prefer that raises be given out strictly on the basis of seniority.
Worker’s Choice would give employees who get into trouble at work the freedom to represent themselves in the most effective manner. Most union contracts require workers in disciplinary proceedings or other dealings with their employer to go through the union.
If the employee has a union representative who doesn’t take their problem seriously, as in the case of a Teamsters’ local president who called nonmembers’ grievances “frivolous,” they are out of luck.
Further, under Worker’s Choice there is no drastic change to collective bargaining. Only one union has the power granted under laws to represent all the unionized employees at a worksite.
Why should states or Congress address the free/forced-rider issue?
For unions, the trend toward right-to-work is accelerating. Earlier this year, West Virginia adopted right-to-work, putting a majority of states in the right-to-work column. And states like Kentucky and Missouri are just one election away from adding to that number. If unions are truly worried about free riders, as they claim, then Worker’s Choice is the answer.
Right-to-work supporters have less to worry about — for now. The judge’s ruling will likely be overturned on appeal, and right-to-work will stand in Wisconsin. But if President Obama does get his nominee placed on the Supreme Court, there is a slight chance the union’s far-fetched argument against right-to-work may be approved for the entire country.
While it is, in fact, unfair for unions to be required to bargain for those not paying them (ignoring the fact that they fought for the monopoly to represent everyone) it is more unfair to force workers to pay for unwanted services.
Thankfully those are not the only two options. The better way is to allow unions to say “goodbye” to workers who do not want to pay and workers to say “no thanks” to unwanted representation.
• F. Vincent Vernuccio is director of labor policy for the Mackinac Center for Public Policy, and author of “Worker’s Choice: Freeing Unions and Workers from Forced Representation” (Mackinac Center, 2015).