If You Must Defend Forced Unionism, Defend It Forthrightly

JURIST – Forum: ‘Right to Work’ in Michigan: Depleting Unions …

Like the overwhelming majority of other forced-unionism proponents today, Michigan law professor Susan Bitensky seems reluctant to defend what she plainly believes: that the individual employee's freedom not to join a union should receive far less protection under the law than the individual employee's freedom to join a union. Image: thejobbingdoctor.blogspot.com

The U.S. Supreme Court’s unexpected decision in the spring of 1937 to uphold the National Labor Relations Act (NLRA) gave a massive and almost immediate boost to union organizers.  Millions and millions of workers joined unions during the late 1930’s, and contracts empowering union officials to act as employees’ “exclusive” bargaining agents in contract talks with their employers also proliferated.

However, despite the fact that the NLRA explicitly empowered Big Labor to get employees fired for refusal to join a union, whether they wanted it or not, compulsory-union-membership contracts remained relatively rare until World War II.  For several years, Organized Labor expanded rapidly while only occasionally resorting to forced unionism.

The turning point came during World War II, when FDR’s War Labor Board aggressively promoted so-called “union shops” and “closed shops.”  As soon as the American people became acquainted with such workplace arrangements, they took an intense dislike to them.  In 1944, Florida and Arkansas became the first two states to pass Right to Work laws protecting employees from termination for refusal to pay union dues or fees.  Over the next three years, Arizona, Georgia, Iowa, Nebraska, North Carolina, North Dakota, South Dakota, Tennessee, Texas and Virginia followed suit.

Though they rarely saw the need for compulsory unionism during the 1930’s, by the time World War II was over union bosses considered it their mainstay.  That’s why, in 1948, a coalition of unions brought a case to the U.S. Supreme Court intended to secure a decision declaring all state Right to Work laws unconstitutional.  In their brief to the High Court, which Justice Hugo Black quoted with some amazement in his majority opinion in the case (Lincoln Federal Labor Union No. 19129, AFL, et al., v. Northwestern Iron & Metal Co., et al, 335 U.S. 525), union lawyers openly declared that employees opposed to unionization should be second-class citizens.

The union brief sneered:

[T]he right to work as a non-unionist is in no way equivalent to or parallel of the right to work as a union member; . . . there exists no constitutional right to work as a non-unionist on the one hand while the right to maintain employment free from discrimination because of union membership is constitutionally protected.

Although Black, writing for a unanimous court, unceremoniously dismissed this argument and found Right to Work laws to be constitutional, 21st Century proponents of compulsory unionism like Michigan law professor Susan Bitensky clearly continue to believe that at least the individual worker’s right not to join a union is deserving of far less legal protection than his or her right to join.  But in her contribution to The Jurist last month attacking Right to Work laws (see the link above), Bitensky opts not to make a forthright argument as to why the “right to work as a non-unionist is in no way equivalent to or parallel of the right to work as a union member.”

Instead, Bitensky puts up a smokescreen.  Regardless of what one thinks about the morality of labor laws authorizing and promoting the termination of employees for refusal to join or pay dues to a union they don’t want, and never asked for, she implies, one should still oppose Right to Work laws, because they have such dreadful economic and social consequences.

In previous comments on this site over the past couple of weeks, I have already explained why several of the contentions Bitensky makes about the supposedly dire consequences of Right to Work laws are altogether spurious.  Today, in my final post on Bitensky’s anti-Right to Work screed for The Jurist, I would like to address two more of the statistics she cites.

Bitensky observes that Right to Work states have a greater incidence of fatal workplace injuries than non-Right to Work states, and insinuates that the higher mortality rate is a “serious adverse economic consequence” of prohibiting forced union dues and fees.  The evidence does not remotely support her insinuation.  Indeed, over the course of 70 years of debates over the Right to Work, Big Labor apologists have never been able to come up with a single example of workplace injury rates in general, or fatal injury rates in particular, going up in a state after it passes a Right to Work law, or even of injury rates declining less rapidly after a state passes a Right to Work law.

In December 2012, as the Michigan Right to Work legislation was being debated, James Hohman of the anti-forced unionism Mackinac Center for Public Policy commented on the case of Oklahoma, the last state to enact a Right to Work measure prior to 2012:

Consider Oklahoma, which became a right-to-work state in 2001.  From 2000 to 2010 its workplace injury rate plummeted, decreasing their average workplace injuries and illnesses by nearly 40 percent.  Overall, right-to-work states have a slightly lower incidence of workplace injuries.

The crude correlation cited by Bitensky completely overlooks other key facts.  As Hohman also observed, fatal workplace injuries are heavily concentrated in just a handful of industries like farming, fishing and forestry.  Fatalities are much higher for employees in such sectors, regardless of whether the enterprise is located in a Right to Work or a forced-unionism state.  Any comparison of workplace safety in Right to Work and forced-unionism states that fails to consider this factor provides us with no reliable information about labor policy’s impact, if any, on accidents.

Bitensky also observes that the average infant mortality rate is somewhat higher in Right to Work than in forced-unionism states.  Once again, she fails to furnish any evidence that infant mortality rises or falls more slowly in states after they switch from forced-unionism to Right to Work.  And this isn’t surprising, because once again there is no evidence that any state has experienced a slower decline in infant mortality, relative to other states, after adopting a Right to Work law than it had before.

Moreover, infant mortality tends strongly to be higher in rural areas than in urban areas, regardless of whether those areas are located in Right to Work or non-Right to Work states.  Right to Work states generally are far more rural than forced-unionism states, and this disparity may well explain the entire gap Bitensky identifies.  She certainly offers no evidence to the contrary.  It is also worth pointing out that the infant mortality rate for African Americans in Right to Work states is almost precisely the same as the infant mortality rate for African Americans in forced-unionism states.

In 2009, the infant mortality rate for African Americans in Right to Work states in the aggregate was 12.75 per 1000 live births, compared to 12.71 per 1000 live births in forced-unionism states.  Does Bitensky really want to conclude from this 0.3% difference that Right to Work laws have “serious economic consequences”?

A close examination of the data shows that the “workplace-safety and infant-mortality” line of defense for compulsory unionism is chimerical in addition to lacking a principled basis.  Bitensky still owes the readers of The Jurist an honest and forthright defense of corralling workers into unions.