Saturday, March 12, 2011

Wisconsin Labor - Right Or Wrong?

I've watched the events in Wisconsin unfold with a sense of disappointment and confusion, but not for the reasons many have.

The confusion was mine, because during all the coverage of this conflict, not once have I heard anyone explain what these "collective bargaining rights" (CBRs) are and why they are morally desirable (I was generally familiar with labor law, but not as implemented in Wisconsin for public employees). In my opinion it's not enough to simply say something "benefits" members of your "side" in a dispute. To use an extreme example, would it be OK if teachers were using slaves in dungeons to provide them a higher standard of living? Would it still be OK to keep the laws on the books? No. You have to define exactly what it is, and that it is morally right.

The disappointment comes from the fact that Americans are forced to -- and do -- make up their minds on the issue in spite of not having this knowledge. Democrats side with unions, Republicans side with the governor. But why? To Republicans, I pose the question: if these are genuine rights, shouldn't they be defended? Would you give up free speech merely because the federal government is short on cash this year? Budgets should not trump fundamental rights. To Democrats and unions I ask: if the advantages enjoyed by public unions are based on morally unjust powers, shouldn't you be willing to give them up?

I had my suspicions regarding these laws. After all, I'm a laissez-faire capitalist (as defined here, not as defined by the progressive media):
Capitalism is a social system based on the recognition of individual rights, including property rights, in which all property is privately owned.

The recognition of individual rights entails the banishment of physical force from human relationships: basically, rights can be violated only by means of force. In a capitalist society, no man or group may initiate the use of physical force against others. The only function of the government, in such a society, is the task of protecting man’s rights, i.e., the task of protecting him from physical force; the government acts as the agent of man’s right of self-defense, and may use force only in retaliation and only against those who initiate its use; thus the government is the means of placing the retaliatory use of force under objective control.

However, I am loath to come down conclusively on one side or the other without having all the facts in hand. What if the Wisconsin laws are just protections of legitimate rights?

So, what are these rights?

I challenge you to quiz yourself or someone else about this subject:
  • How do CBRs differ from simply getting a bunch of people together and negotiating with an employer?
  • Is there some reason why they can't already do that?
  • Does working for the government mitigate any rights an employee might have?
  • Should the fact that political favors can be bought and sold impact a public employee's rights in any way vs. a private-sector employee?
I commend you if you can answer these questions off the top of your head.

And how about the obvious question: why does the government need to "permit" a group of people to bargain in the first place? Isn't our right to assemble protected by the Constitution?

That is one of the points made by Linn and Ari Armstrong in this excellent essay that appeared in the Grand Junction Free Press. As the Armstrongs suggest, we have historically treated groups of individuals differently from single individuals, yet we already have rights as individuals, and membership in a group should not change that.

Unfortunately, many of our laws don't follow that pattern. When individuals form a labor union, certain legal advantages have historically been added compared to the rights afforded to those individuals. When that group is a profit-making enterprise, rights have historically been reduced compared to those of individuals. This is primarily because of the incorrect belief that wealth = force, and that the intervention of legislators is required to "rebalance" this imbalance of power.

The Wisconsin laws

I finally got fed up with the lack of concrete information and looked up the laws myself. Here is the referring page, which is on the web site for the American Federation of State, County and Municipal Employees, AFL–CIO.

Based on what I read, the Wisconsin laws are based on the pattern of national labor laws in the Wagner Act (NLRA) and are loosely premised on the idea that such laws are necessary to keep society moving smoothly (to avoid conflicts and strikes and their impacts).

For example, here is some text regarding the law's justification (section 111.01(2)):
Industrial peace, regular and adequate income for the employee, and uninterrupted production of goods and services are promotive of all of these interests. They are largely dependent upon the maintenance of fair, friendly, and mutually satisfactory employment relations and the availability of suitable machinery for the peaceful adjustment of whatever controversies may arise.
It is also recognized that whatever may be the rights of disputants with respect to each other in any controversy regarding employment relations, they should not be permitted, in the conduct of their controversy, to intrude directly into the primary rights of 3rd parties to earn a livelihood, transact business, and engage in the ordinary affairs of life by any lawful means and free from molestation, interference, restraint, or coercion.

This is quite a mouthful, but basically it says that we can't permit labor disputes to upset society and the economy.

Already, they've lost me. That is a thoroughly collectivist, non-rights-protecting justification for something. It's awful. To use free speech as an example again, just look at the extent to which we go to protect it, regardless of its impact. We protect parading Nazis who think entire races should be murdered. We protect crazy, hateful fundamentalists saying gays should die. We don't simply say "Gee, that speech will upset someone, or the balance of social needs, so we can't allow it". There is no balancing act. It is a clearly defined principle that is upheld no matter what anyone else thinks.

In my opinion, the justification quoted above has failed the test because genuine rights are not subject to any social calculus of benefits. They must be upheld for all people and at all times. If these labor laws embody real rights, they should be upheld regardless of the economic impact of strikes and lockouts. If problems or impacts arise, we already have laws to deal with that: criminal and tort law (lawsuits). So, this does not disqualify the law, but it does not morally justify it.

Bargaining rights

Now for the substance of the Wisconsin law. Below are some important passages pertaining to CBRs. Employers are prohibited by law from engaging in any of the following practices (section 111.06):
  • To refuse to bargain collectively with the representative of a majority of the employer's employees in any collective bargaining unit with respect to representation or terms and conditions of employment, except as provided under ss. 111.05 (5) and 111.17 (2) [Note: these deal with the University of Wisconsin Hospitals and Clinics Authority];
  • To encourage or discourage membership in any labor organization, employee agency, committee, association or representation plan by discrimination in regard to hiring, tenure or other terms or conditions of employment except in a collective bargaining unit where an all-union, fair-share or maintenance of membership agreement is in effect
  • To bargain collectively with the representatives of less than a majority of the employer's employees in a collective bargaining unit, or to enter into an all-union agreement except in the manner provided in par. (c).
  • To initiate, create, dominate or interfere with the formation or administration of any labor organization or contribute financial support to it
These provisions are clearly modeled after the NLRA. Every single one of them prohibits by law activities which an employer rightfully should be able to engage in, and serve to unjustly entrench the union.

For example, employers should be able to take any peaceful (non-violent) actions they wish to try to prevent unions from forming. They should not be prevented by law from contributing to them (I understand the conflict of interest notion, I am merely saying that this is a peaceful activity and they should be able to do it). Unless prohibited by contract, they should be able to hire and fire for any reason. Unless prohibited by contract, companies should be able to negotiate with whoever they wish, and the representatives of each employee in turn should be determined only by such agreements as they make, not imposed by statute.

Probably most important, employers should not be forced to the bargaining table. This is a bit like saying you can travel wherever you want, you just have to do it in prison. Employers should be able to walk away from negotiations entirely at any time, if they wish to do so. Requiring good faith negotiations by law inherently stacks the deck in favor of those making demands of the employer, because their demands always form the starting point for negotiations.

Basically, employer/employee relations should be guided by consent and by contract alone. Anything that prevents that by imposing statutory prohibitions on certain consensual activities prevents negotiation, rather than supports it. Such laws may give unions a leg up, but that is gained at the cost of coercing employers, which is wrong.

That said, it is true that workers have the right to associated and bargain, but such rights are merely an extension of freedom of assembly and to associate. Labor laws should be an extension of these rights, not an abrogation of them.


So, after finally finding out what the Wisconsin laws consist of, I have to side with the government. The CBRs granted to public employees, instead of being protections of individual rights, actually use force to impose an unfair negotiating advantage on behalf of unions. For this reason, they are wrong and should be repealed, regardless of their effect on the state budget.


  1. Excellent post. Thank you for doing all that "homework."

  2. HaynesBE - Thanks. Sometimes you just have to dig for yourself. Or maybe I'm just the only person in the US who hasn't memorized each state's labor laws :)