Right to Work legislation is in the news again, as New Hampshire Republicans fail to round up sufficient votes to become the 23rd state to enact such legislation. Over at the Washington Examiner, Timothy Carney sets out (with a little help from RadGeek Charles Johnson) a libertarian case against Right to Work laws, but then wonders (with a little help from F.A. Hayek) whether the case in favor of them is stronger than he thought. Grover Cleveland, at Pileus, thinks it is.

Right to Work (hereafter RTW) laws basically prohibit agreements between labor unions and employers that make membership in a union,or payment of union dues, a condition of employment. Libertarian-leaning proponents of such laws say they are needed to ensure that workers aren’t forced to join unions they don’t want to join. But there is a seemingly devastating problem with this argument, which Carney notes in his original post. For what RTW laws actually do is “interfere with the right of contract and they bar certain consensual economic arrangements — specifically, they bar employers from agreeing to hire only union workers.”

Workers might feel like they are being coerced into joining a union in situations where a closed shop agreement exists between the union and the employer. But might not workers feel just as “forced” to work overtime, or wear a uniform, at jobs where this is required of them? And would not the correct libertarian response be that, so long as they accept the employment voluntarily, whatever requirements their employers place on them are not really coercive in the morally significant sense, regardless of how workers perceive them?

In his second thoughts, Carney relates a passage from Friedrich Hayek, which reads:

If legislation, jurisdiction, and the tolerance of executive agencies had not created privileges for the unions, the need for special legislation concerning them would probably not have arisen in common-law countries. But, once special privileges have become part of the law of the land, they can be removed only by special legislation. Though there ought to be no need for special ‘right-to-work laws,’ it is difficult to deny that the situation created in the United States by legislation and by the decisions of the Supreme Court may make special legislation the only practicable way of restoring the principles of freedom. [Constitution of Liberty, p. 279, reprinted in A Tiger By The Tail: The Keynesian Legacy of Inflation, p. 92 – see here]

So, on this view, RTW laws are necessary because previous legislation has stacked the deck in favor of unions by means of special legislation like the Wagner Act.

But here the left-libertarian response seems precisely on point. Sure, government has not been a neutral player in the relationship between capital and labor. But if the deck has been stacked in any direction, it has been against workers, not in favor of them. Thus what Will Wilkinson describes (in another context) as the Progressive view of the matter seems far more sensible:

Progressives generally think, not implausibly, that government has already put a thumb on the scale in favour of employers through the legal definition of the character and powers of the corporation, such that it is manifestly unjust for government to fail to put an equalising thumb on the scale in favour of unions.

At least, it seems that way so long as we focus only on the conflict of interest that exists between employers and unions. Such a conflict certainly exists, and most legislation probably does favor the interests of economically and politically powerful employers over less-powerful workers. But there is a second conflict of interest as well: that which exists between unionized workers and non-unionized workers. Put simply, to the extent that unionized workers obtain concessions from their employers in the form of higher wages, better working conditions, greater job security, etc., such concessions often come at the expense of non-unionized workers who have a harder time finding work, or adequate compensation for the quality of their work, than they otherwise would.

If the only conflict of interest were between workers and employers, then strengthening unions by blocking RTW legislation might make sense as a way of righting the scale that has already been tipped so heavily in favor of employers. But if strengthening unions means hurting non-union labor, then the solution seems not to be so clear.

At least, not to me. But this isn’t an issue on which I have terribly well developed views. So I’m curious to hear your thoughts!

UPDATE: Hyena in the comments links to an extensive left-libertarian treatment of labor issues from Kevin Carson here. Well worth taking a look at.