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Freedom of association key ingredient for Colorado labor law

My great-grandmother sewed thick layers onto my grandfather’s pants so he could work on his knees in a coal mine above Palisade. Rough work. My grandfather often said he worked three of the most dangerous jobs in the world: miner, farmer (he grew peaches for decades), and soldier (he served in the Pacific Rim during WWII).

In Colorado it nearly goes without saying that laws and government actions surrounding the workplace are profoundly important. If you need a refresher check out the Wikipedia entries on the Cripple Creek strike of 1894, the Colorado Labor Wars of 1903 and ’04, the Colorado Coalfield War of 1913 and ’14, the related Ludlow Massacre of 1914, and the Colorado Coal Strike of 1927 and ’28. An important sign of progress is that today labor disputes take place in the capitol hearing room, business meeting room, and courthouse, and are conducted with words rather than bullets. It was not always so!

An effort to revamp labor laws

Now some Democrats want to change Colorado’s union laws to make it easier for unions to collect dues from employees. This provides a good opportunity to reevaluate those laws.

Back in November Ed Sealover wrote an excellent backgrounder for the Colorado Chamber of Commerce. He points out that the Labor Peace Act has been in place since 1943. Under those rules, he writes, “Workers here can unionize with a majority vote but must pass a second vote with 75% approval to permit union security, which allows organized labor to deduct fees from their checks to help fund union work and bargaining activities.” Democrats, he writes, want to “end its requirement for a second election before union negotiators can collect fees from workers.”

Loren Furman, president of the Chamber, casts the LPA as a “middle ground between business and labor,” writes Sealover. Likewise, Independence Institute’s Jon Caldara characterizes the LPA as a “peace treaty” worth retaining. (II publishes Complete Colorado.)

Caldara further warns that, if successful, Democrats will prompt a reaction, via a recently filed ballot measure: “If progressives in the state legislature remove that 75% requirement, that compromise which kept the peace for eight decades, there will be a counteraction to protect individuals who . . . don’t want to join [a union]. That protection will be right to work.”

So what is “right to work?” The National Conference of State Legislatures summarizes: “Right to work refers to an employee’s ability to work for an employer without joining a union or paying agency fees for representation.”

Sealover explains, “26 states . . . have right-to-work laws preventing mandatory union membership and 23 states that require workers at unionized companies to pay fees to the unions that negotiate on their behalf.”

An argument against “right to work” rules is that an employee could benefit by union action while freeloading off the dues of others. An argument for them is that individual employees should be able to decide for themselves.

Freedom of association

Contrary to myth, free market economists generally are not opposed to unions. For example, the great economics writer Henry Hazlitt points out in his Economics In One Lesson that, although “labor productivity is the fundamental determinant of wages,” unions can perform “the central function . . . to assure that all of their members get the true market value of their services.”

The issue, then, is not whether labor unions are a good idea. Every reasonable person agrees they play an important role. The question is how the rules governing unions should operate, and by what principles.

Rep. Jennifer Bacon, one of the Democrats supporting reform, casts the issue as one of majority rule. Sealover quotes her: “If a group of people knows what they need to thrive . . . why would we get in the way in the will of the people in a country that was founded on that principle?”

According to Bacon’s approach, the country was founded on the principle of majority rule, and people voting on whether to form a union is an application of that principle. But that’s totally wrong.

Yes, in the context of electing representatives to government, and in the context of legislative bodies, majority rule plays an important role. We do not have pure majority rule, of course. The presidential election takes place within the electoral college. The legislature is subject to the governor’s veto. And of course at the federal and state levels majority rule properly is limited by bills of rights that protect individuals from the abuses of majorities.

Unions are organizations of people, so the core principle at play is that of freedom of association. Generally, people have the right to associate with others by consent, and so also have the right to refrain from associating with others. We don’t generally try to force people into groups they don’t want to join. Normally you can’t just go around and demand that people give money to your group. People get to choose. My paycheck, my choice, right?

Typically a business is an organization of owners and employees. Although some people hold out the socialist dream of strictly employee-owned businesses, and although in some situations such arrangements work fine, most people don’t actually want the financial risks, stresses, and long-term commitments associated with business ownership. So generally unions pertain to employees of a business who wish to negotiate terms with the owners.

Prevent force and fraud

In this context, the business owners, no less than the employees of the business, have the right to freedom of association. For a business to work, all parties properly come together by mutual consent. Just as no one should be forced to work for a particular business, so no business owner should be forced to hire a particular employee. (Here we can leave aside issues of preexisting contracts and of discrimination law.)

What does this mean for unions? Here government properly has one job: To prevent force and fraud. No employer should be able to force people to work, and no employee should be able to forcibly shut down a business. Government’s job is to preserve the peace.

One implication is that government should not set any arbitrary boundary for union activity. If ten or thirty percent of the employees of a business wish to form a union, properly they have every right to do so. Their right to form a union, however, properly does not obligate the employer to retain union members on staff or to negotiate terms with them. Government should consistently recognize and protect the rights of all parties to freedom of association and freedom of disassociation.

Likewise, government should not set any arbitrary trigger for mandatory union fees. If someone does not wish to join a union, a vote of 50% or 75% or 99% of the other employees should not force the person to join.

So-called “right to work” laws also are a mistake, because employers properly have every right to require, as a condition of employment, that someone join a work-related union. This is not a use of force in the relevant sense, because someone retains the choice to work for the company in question or not. Compare: You have the choice of whether to move into a homeowner’s association, but a condition of that choice is that you have to pay dues.

The upshot is that neither the Labor Peace Act, nor the proposed Democratic reforms, nor “right to work” laws consistently recognize people’s rights to freedom of association. In the current context, the status quo seems like the least-bad compromise. In the longer term, though, the legislature should look to tip the scales neither toward labor nor toward business but simply to consistently protect the right of every individual to freedom of association.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.

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