Amendment 47 and the "Freedom of Choice"

My dad and I have come out against Amendment 47, the so-called “right to work” measure. So has Diana Hsieh. This has generated some discussion regarding the merits of the proposal, so here I further detail my case against it.

The problem with Amendment 47 is that it interferes with the freedom of contract. That this interferes with the employee’s “freedom to choose” is irrelevant. For instance, an employee does not have the “freedom to choose” to gab on the phone with friends while at work, create a painting when the job requires customer service, etc. Beyond the context of individual rights, the “freedom to choose” is either meaningless or in direct violation of individual rights. For example, you do not have the “freedom to choose” not to pay your mortgage and remain in your house. You do not have the “freedom to choose” to walk out of a grocery store without paying for your food. You do not have the “freedom to choose” to unilaterally force an employer to offer a contract that he does not want to offer. At least, within the bounds of individual rights you have no such freedom.

Is it true that, due to federal controls, unions have the ability to force contractual concessions that they would not be able to achieve on a free market in which the individual rights of both employer and employee are fully protected? Yes, that is true. But two wrongs do not make a right. One violation of contract rights does not call for another. The undue power granted to unions by federal legislation should be repealed. The answer is not to impose new contractual restraints by state force.

Now let us take a look at the actual constitutional language that Amendment 47 would impose:

(2) (a) No person shall, as a condition of employment, be required to: (I) Be a member of a labor union; and (II) Pay any dues, fees, assessments, or other charges of any kind to a labor union or to any charity or other third party, in lieu of such payments. … (3) Any person who directly or indirectly violates any provision of this section commits a misdemeanor and upon conviction thereof shall be punished by a fine in an amount equivalent to the most stringent misdemeanor classification provided by law.

Whom is the criminal penalty directed toward? The employer. How exactly is threatening employers with criminal sanctions protecting their rights to contract?

An argument against the measure in the Blue Book aptly summarizes another problem: “By defining labor union to include organizations that provide mutual aid or protection, employers may be banned from requiring employees to belong to organizations that promote workplace safety or provide job-related education programs.”

Indeed, the language is so broad — “any charity or other third party” — than an employer would not be able to require funding of any civic group as a requirement of employment. Now, I do not think employers should be in the business of requiring civic participation, but I think they have every right to do so, as a matter of contract.

Employers also have the right to create a union shop. Does this interfere with the employee’s “freedom of choice?” No; they retain the freedom to work elsewhere. Contracts are a two-way street, and the rights of both parties must be protected, by the principle of individual rights.

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  1. The Myth of Compulsory Unionism

    Adults are often called upon to make important decisions that may have a significant impact on themselves and their families. These decisions are often economic in nature and are not, one would hope, made without careful consideration of their moral consequences. The decisions of moral men and women, who are compelled to choose principle over economic comforts, are sometimes criticized as naïve and self-destructive. Those of us who have been confronted with such quandaries, and went with our principles, are secure in the knowledge that we made the correct choice and can comfortably face ourselves in the mirror each morning.

    One of the decisions we make as adults is the type and place of employment we might seek to best provide for our families needs and future. A principled person will not, under any circumstance outside of the very survival of himself or his family, betray those principles and take a job that he or she feels is contrary to those principles. Nor can, or should, any outside force compel them to do so against their will. For this person, it is beyond the pale to perform, or to take employment with a company who will ask them to perform, a task or assignment they find repugnant. When seeking employment, such a person must be vigilant to ensure that they accept no condition of employment that runs counter to their principles.

    A somewhat unsettling aspect of modern employment is the host of concessions that a company will ask of a potential employee. While many people are disturbed by the nature of some of those requests, the employer reserves the right, as an act of self-preservation, to seek permission to delve into the most intimate details of the job seekers life and employment history. The principled adult must, at this point in the potential employer/employee relationship, decide if they are willing and able to, among other things:
    Take a drug test
    Take a physical
    Take a polygraph test
    Take a personality profile examination or undergo psychological testing
    Consent to a medical history search
    Consent to a background check, including police records
    Consent to a credit check of themselves and their spouse

    The applicant, who deems these requirements acceptable will agree to them and, should all go well, be asked to return to the job site for further discussion. The discussion often times leads to another set of conditions that the potential employee must agree to in order to be eligible for employment. These might include:
    Getting a haircut
    Shaving or removal of facial hair
    Removal of all jewelry or piercings
    The necessity to work a schedule other than the preferred 9 to 5, Monday through Friday
    A diminished salary until a probationary period is completed
    Required participation in the company health plan, whether needed or desired
    Required participation in the company stock purchasing program or 401k
    Required payment for the use and cleaning of uniforms
    Payment for required tools or vehicles necessary to perform the work

    Voicing unwillingness or reluctance to agree to these terms might be met with a terse “These are the terms and conditions of employment. You must accept each and every one before you can start work”. Making the decision that these conditions are acceptable will lead the applicant to their first day of work. Making the decision that they are not acceptable will lead the applicant to the door, seeking employment with a company that does not require the acceptance of employment terms the applicant finds unacceptable.

    Suppose the principled job seeker agrees to all the requirements of a particular employer and states that they are ready to go to work. The employer says ‘Oh, one more thing… the employees here have a Union. Should you accept employment with us, you would be required to become a member of that Union”.

    The applicant, who may have negative feelings regarding Union membership, is simply confronted with another decision. As in the previous cases, acceptance of that condition will lead to employment, non-acceptance the door. The applicant, finding the idea of being in a Union repugnant, can state so and seek employment elsewhere. Their moral compass has provided direction through the turbulent waters of this decision and they can continue to look themselves in the mirror each morning, confident in the correctness of that decision.

    The claim that an applicant is subject to “compulsory Unionism” by accepting employment at an establishment where the employees have, democratically and under protection of the law, made the choice to form a Union is cynical and is, most often, made by those who would benefit from the dismantling of Unions. It also diminishes the significance of the decision of those employees who exercised their right to form a Union at that workplace and to collectively bargain with their employer. The fact that they did form a Union may explain why the wages, benefits and terms and conditions of employment at their place of employment are more attractive than those at others.

    The very idea that an adult, who lives by the morals and principles that they carry with them, can be “forced” to join a Union demeans every person who fills out an application. They either have the capacity to make reasoned decisions on, and take responsibility for, the many choices they are confronted with in the search for employment or they do not.
    A responsible and principled person who does not want to be in a Union should, when applying for a job, make the question “Is there a Union here?” their first. If the answer is “Yes”, they should move on and seek employment with a company that will not present them with a condition of employment that they find contrary to their principles.

    A worker who finds themselves confronted with a situation where their co-workers have initiated a Union election is neither defenseless nor “doomed” to become a union member. Their options include urging their co-workers to vote no in the election or urging them to vote down any contract that includes “closed shop” language. Should they be unsuccessful in those attempts they have the right, after one year, to initiate a de-certification of the Union. The employee has the same right to initiate a de-certification election that their co-workers had to initiate a certification election.

    Should the anti-union employee be unsuccessful in their attempts at the first three options then, as a person of integrity and principle, they can exercise their right to not be a union member by finding a different job. Not fair, you say? Well, the fact is that thousands of people quit their jobs every day. They quit for a variety of reasons; the boss is not fair or is mean to them, they don’t get paid what they are worth, the work is too dangerous or dirty for the pay given etc… The best way to generalize all the reasons workers leave their jobs is to say that the conditions of employment have become intolerable. The pay and benefits are no longer sufficiently motivating to continue doing the work and the employee self-selects non-employment. They are not bound, in a democracy, by any legal requirement to stay at a job they find unpalatable and can, at any point, self-select and move to other employment.

    We have, in this country, found that the best way to make decisions that impact a group is to rely on the democratic process to determine the will of that group. The wishes of the majority will prevail, unless that wish is counter to some inalienable right guaranteed by law. It was decided by our representatives in Congress, vis-à-vis the National Labor Relations Act of 193X, that the ability to collectively bargain was worthy of federal protection and that the principles of democracy should determine whether or not employees want to exercise that right. This process is guided by the NLRA and is monitored by an employee of the NLRB to ensure the process is indeed democratic and immune from conditions that would negate the true desires of the group. Each employee in the group has equal opportunity to express their desire and to communicate that desire to other members of the group. That individual does not, however, have the right to enjoy the benefits of remaining in the group without assuming the responsibilities assigned to each member of that group.

    There is a legal term called “coming to the nuisance” that can be applied to the concept of “forced unionism”. The term restricts an individual’s right to make claims against an entity for conditions that existed prior to the individual being negatively impacted by those conditions. For example, if someone buys a home along the flight path of an established airport, they can make no claim against the airport for the noise that existed before, or at the time when, they bought the home.

    The reason they would have no claim is that a) the airport was there before the individual was b) the individual should have known that the house was on the flight pattern, had they used due diligence in investigating the conditions and c) they knew about the conditions and purchased the home anyway, thereby accepting the conditions that existed prior to their arrival. This principle protects existing enterprises from being sued or having complaints filed against it by people who, knowingly and willingly, come to the nuisance and then attempt to have the nuisance removed, thereby causing the enterprise harm or the inability to continue operation.

    If someone applies for a job at a company that has an existing agreement between the employer and employees that states “all employees who fall within the bargaining unit, as determined by the NLRB, will be required to be a member of the union”, what right does the individual have to keep themselves outside of that agreement? The “nuisance” of union membership existed before they applied, they knew, or should have known, that there was a condition of employment requiring union membership before they accepted employment and they had the opportunity to avoid the “nuisance” by declining acceptance of that condition.

    An employee who is confronted with a union election at their worksite has equal opportunity to participate in that process and to communicate their desires to their co-workers. Should their co-workers disagree, and vote for a union, the opportunity exists to keep a “closed shop” agreement from being passed. Finally, they have the opportunity to decline the groups’ requirement of union membership by avoiding the “nuisance” and removing themselves from the group. The individual has no right to remain in a group without meeting the requirements of that group.

    Right-to-Work legislation attempts to restrict the employer and employees from negotiating contract language that would require all employees to support the organization that the group has determined will advance their common interests. Such an agreement does no harm to the employer and, under Colorado law, requires an additional polling of the group to determine whether or not a majority of employees desires such language. This illogical restriction on an agreement between two legally recognized entities, the employer and the employees’ organization, is not, as its advocates claim, intended to safeguard some non-existent right to avoid “compulsory unionism”. It is, rather, a cynical attempt to diminish the actual right of employees to collectively bargain with their employer. Those that seek to weaken that right are attempting to fool voters into aiding and abetting their goal by disingenuously couching legislation in language designed to manipulate the good intentions of the people of Colorado.

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