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Michael Nuwer <[log in to unmask]>
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AFEEMAIL Discussion List <[log in to unmask]>
Sun, 28 Jul 2013 13:58:34 -0400
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This is an interesting topic, but, as my comments below will suggest, 
I'm not in agreement with the main points. Perhaps these comments will 
open a discussion of this important issue.

On 7/15/2013 12:39 PM, Oren Levin-Waldman wrote:
> When states pass right-to-work laws, they claim that they are creating 
> working conditions conducive to choice. Workers can choose to join a 
> union or not, but because these laws effectively bar closed shops 
> workers are no longer coerced to join unions.

This should say "these laws effectively bar union shops." Closed shops 
have been illegal for most of the 20th century. Moreover, US courts have 
long held that there is no meaningful difference between an agency shop 
and a union shop. Under the NLRA, union membership is limited to payment 
of dues.

> Opponents of these laws point out the obvious: because unionization 
> efforts have been made more difficult, the power of unions is 
> diminished, and so too are the legitimate rights of workers. And yet, 
> right-ro-work laws rest on a fundamental assumption which has long 
> permeated American labor law. That is, employers have property rights 
> while workers do not. Hence the asymmetrical balance of power between 
> workers and their employers.

Right-to-work laws seem a bit irrelevant to this power imbalance. The 
imbalance existed before the NLRA and the NLRA reenforced the 
asymmetrical power balance. That workers have no property rights under 
the NLRA is laid out in NLRB v. Borg-Warner (1958). "Nothing the court 
holds today should be understood as imposing a duty to bargain 
collectively regarding such managerial decisions which lie at the core 
of entrepreneurial control."

> The National Labor Relations Act (NLRA) which created the National 
> Labor Relations Board (NLRB) was so important when it was passed in 
> 1935 because it called for collective-bargaining as a means to prevent 
> labor strife and instability in labor markets.

But it (1) made the jurisdiction and determination of a bargaining unit 
a matter for the NLRB, not the labor organization -- since labor peace 
was declared to be the public interest, bargaining structure was 
subordinated to that peace; and (2) it required that local unions give 
up the "wild-cat" strike as a means to enforce the contract.

> By threatening to strike, which was now legal, employers would be 
> forced to bargain with their employees. Prior to passage of the NLRA, 
> employers could easily assert their property rights and claim that 
> unions and strikes were an infringement of those rights. The courts 
> originally took the position that unions were illegal because they 
> violated the Sherman Anti-Trust Act by creating labor monopolies in 
> restraint of free trade. Nobody would deny that they were monopolies,

A 19th century labor union that entered into a closed shop agreement 
with an employer is no more a monopoly than any modern supplier in a 
supply chain. There is quite a bit of history on this matter. Describing 
unions as monopoly sellers of labor plays into the anti-labor ideology 
of the employing class.

> but institutional economists maintained that so long as workers had 
> neither power nor property rights, they needed a measure of bargaining 
> power that only unions and collective bargaining could afford them. 
> Then when states attempted to pass maximum hours and minimum wage 
> laws, which would effectively grant a measure of monopoly bargaining 
> power to those not covered by collective bargaining agreements, the 
> courts held them to be a violation of liberty of contract.
> The Supreme Court famously asserted in the 1905 case of Lochner v. New 
> that a maximum hours law for bakers violated the workers’ liberty of 
> contract because it prevented them from negotiating more hours. And 
> yet, what the Court was really saying was that state intervention on 
> behalf of workers really violated the property rights of employers to 
> dispose of their property as they saw fit. In other words, an employer 
> has a right to determine the working conditions on his premises. 
> Moreover, because employers purchased labor services from their 
> workers through wages, workers had no rights beyond the wages they 
> agreed to. Certainly, they would have no rights to suggest how their 
> employers should dispose of their property. Workers, after all, are 
> nothing more than mere commodities, and when purchased by employers 
> they too become their property as well.

US courts acknowledge that Lochner was a mistake and they have abandoned 
it's philosophy. Labor unions need to seek the repeal of the NLRA and 
peruse their social and economic agenda along alternative channels. 
Without the limitations and restrictions of the NLRA, for example, 
unions could enhance their bargaining power under the scope of the 
Norris-LaGuardia Anit-Injunction Act. After all, it was the 1932 
Norris-LaGuardia Act, not the 1935 NLRA, that recognized the power 
imbalance:  "... under prevailing economic conditions, developed with 
the aid of governmental authority for owners of property to organize in 
the corporate and other forms of ownership association, the individual 
unorganized worker is commonly helpless to exercise actual liberty of 
contract and to protect his freedom of labor, and thereby to obtain 
acceptable terms and conditions of employment ... "

> That is why the concept of collective bargaining and the right to it 
> granted by the NLRA was so important.

Since the right to bargain collectively was not granted by the NLRA, 
repeal of Act will not take away the right. Repeal, will, however, 
remove many of the limitation and constraints that the Act placed on the 
right to bargain.

> It effectively upended that assumption. If employers are required to 
> recognize collective bargaining units and sit down and negotiate with 
> their workers, workers are in effect being recognized as having a 
> property right to their labor. But that may not be enough. Labor law 
> needs to define the labor services that workers sell as property 
> rights so that when workers’ rights are violated, so too are their 
> property rights. Perhaps this is what makes right-to-work laws so 
> dangerous. By assaulting labor they effectively deny workers property 
> rights in their labor. It is true that if workers were viewed as 
> people with legitimate property rights in their labor, the property 
> rights of employers would effectively be diminished. Measures taken by 
> management that reduced the value of their workers’s property in labor 
> would essentially be akin to a “taking” worthy of some compensation. 
> It is highly unlikely that American labor law will go this far, but if 
> we are ever to right this economy and rebuild the middle class, 
> American labor law needs to strike a better balance between the 
> property rights of employers and the property rights of workers.