There’s been a lot of fuss recently from respected libertarian thinkers like J.D. Tuccille and Jonathan Adler about whether or not right to work laws are libertarian. They are offensive to the principle of freedom of contract, the argument goes, and so no right-thinking free marketeer should support them.
Up to a point, Lord Copper. Tuccille and co. are right that they are offensive to freedom of contract. Should an employer so wish, he should be able to enter in to an exclusive negotiating arrangement with a union and require that all his or her employees join that union if they want to have a job at that company.
So far so good. Yet the possibility of such arrangement does not exist. The default position of federal labor law is that if a union gains a simple majority of votes cast in a workplace (50 percent plus one), it is authorized as the exclusive bargaining representative for all workers in that bargaining unit, including those who voted against the union. This is also demonstrably unlibertarian.
States cannot overturn U.S. law. That is why, as my colleague Ivan Osorio explains, states pass right to work laws. They are the only practical option for those who find the framework damaging to worker freedom.
Yes, it would be better to repeal or reform the Wagner Act, but that is extremely unlikely to happen at present. Passage of right to work laws allows some relief from that oppressive statute and also makes the eventual reform of the Wagner Act much more likely. When enough states have passed right to work laws (there are currently 24, including Michigan) then there might be enough groundswell to overcome the entrenched opposition of the union bosses in D.C.
As CEI founder Fred Smith has said, when you are in enemy territory the route back to safety is not always a straight line.