Among the proposals that didn’t quite make the cut in the final state budget passed by the Legislature this week was a provision that would have allowed University of Wisconsin System faculty and academic staff to unionize. They are currently the only state employees who lack the right to organize.
While the unionization issue, as it pertains to UW personnel, is perhaps more complicated than with other state employees — many UW faculty enjoy the unique right of tenure, guaranteeing them as much if not more job security than any union could ever offer, for example — it’s nonetheless unfortunate the provision wasn’t included in the final budget compromise. Workers have a fundamental right to unionize if they so choose, thus gaining the ability to collectively bargain for wages, benefits, grievance procedures and so forth. This right should apply no less to university faculty and academic staff (not all of whom enjoy tenure, anyway) than to other government employees — or to private sector employees.
In one sense, though, the UW faculty’s ongoing inability to unionize provides them with a unique right that no other group of workers in Wisconsin enjoys. It’s the right to work, or the right against compulsory unionization. On a more fundamental level, it’s the right to freely associate.
In the labor realm, Wisconsin operates under “union shop” or “agency shop” rules, in which an employee, after being hired at an organized workplace, must either join the union or alternatively start paying member dues following a short probationary period. The employer cannot mandate union membership at the time of hiring (such “closed shop” rules are illegal under federal law), but the probationary period is short enough — usually 30 days — that the near functional equivalent of a closed shop is created. If the newly-hired employee refuses to join the union or pay dues, the employer must terminate his employment.
Twenty-two states, on the other hand, operate under “open shop” rules. In these states, alternatively known as “right-to-work” states, membership in a union can at no time be a condition of employment. An employee at an organized workplace in those states is free to join the union if he wishes, but the union may never require the employee to join or financially support it.
The rationale for adopting open shop rules rests on a simple principle: if a worker possesses a skill attractive to an employer, and if the employer offers compensation in return for that skill at a level deemed acceptable by the worker, the two parties’ right to associate in a mutually beneficial manner should not be abridged. Requiring the employer and employee to negotiate through a third party — the union — when both were happy dealing solely with each other is not only burdensome, but it interferes with a basic right enshrined in the First Amendment.
Further, it stands to reason that a union that must actively promote itself to potential members will be a more effective union. Since it cannot rely on a coercive union shop or agency shop security contract to collect funds, the union must perpetually sell itself as a valuable service to entice workers to join. Taking up political causes, or working for benefits that help only a small percentage of workers, becomes far harder when the union must fight for its money.
The problem with an open shop, in the eyes of Big Labor, is that some employees won’t join the union. And since unions are exclusive bargaining units that must fairly represent all employees (whether union members or not), right-to-work laws lead to a free-rider problem. That is, a person who abstains from union membership or paying dues still reaps the benefits of the union’s collective bargaining efforts.
While it is true that some may enjoy the fruits of the union’s representation without ever financially contributing to it, it’s also true that a free-rider does not necessarily relish his status as a free-rider. Rather, these employees simply do not view the benefits of union membership as being worth the cost — or they don’t view the benefits of union membership as being worth anything at all. They have to accept the union’s representation, but they didn’t ask for or desire it.
A union naturally derives its strength from its numbers. But there’s no reason for it to derive its numbers from a coercive security agreement, as is allowed in Wisconsin. Unions still exist in right-to-work states, but their membership rolls and bank account aren’t artificially bolstered by the government’s allowance of mandatory union membership.
Of course, if federal law changed so that unions do not have to be exclusive bargainers for all employees, the free-rider problem would go away. Unions then would be free to only represent members, while an employer could in turn negotiate with the union, with another union and with individuals, all separately. Unions don’t advocate for this, though, because it would also strip away some of the bargaining power they obtain through compulsory membership.
Federal law probably won’t change anytime soon. Therefore, Wisconsin should adopt the right to work, for private and public employees. It should also grant faculty members at UW the right to unionize. Those are two rights that certainly do not make a wrong “" not for UW faculty, not for the Wisconsin economy and not for workers’ freedom.
Ryan Masse ([email protected]) is a first-year law student.
