The Libertarian Case Against Right-to-Work Laws

by Sheldon Richman, Reason.com  |  published on December 18, 2012

right to work

It’s not widely known, but an earlier generation of libertarians condemned so-called right-to-work laws as anti-market. For example, Milton Friedman, in Capitalism and Freedom, compared right-to-work to anti-discrimination laws. The Spring 1966 issue of the libertarian student-run journal New Individualist Review carried Professor Hirschel Kasper’s article “What’s Wrong with Right-to-Work Laws.” NIR was edited by University of Chicago libertarians Ralph Raico, Joe Cobb, and Jim Powell.

Among its editorial advisers were Friedman, F.A. Hayek, and Ben Rogge, a classical liberal long associated with the Foundation for Economic Education. (Of course this does not mean that any of these men necessarily agreed with Kasper, although [with one exception] that may not be an unreasonable inference, considering that NIR never published a pro-right-to-work article. The exception is Hayek, who wrote, curiously, in The Constitution of Liberty that “closed- and union-shop contracts … must be treated as contracts in restraint of trade and denied the protection of the law.”)

Percy L. Greaves Jr., a student and friend of Ludwig von Mises and a close associate of FEE founder Leonard E. Read, also made the libertarian and Austrian-economics case against right-to-work laws. The essay was published in a festschrift to Mises, On Freedom and Free Enterprise, which was assembled in 1956 to honor the 50th anniversary of his doctorate. One may draw one’s own conclusion about how Mises saw the issue, given Greaves’s choice of topic in this context.

In light of the controversy surrounding the recent passage of a right-to-work law in Michigan, Greaves’s lengthy argument is worth examining. For the record, no one was more fully devoted to laissez-faire than Percy Greaves, a dedicated promoter of Mises’s work. (See his Mises Made Easier.) And he was no union sympathizer—or, to be precise, he had no sympathy for compulsory unions under the legal regime created by the National Labor Relations Act of 1935 (the Wagner Act).

But Greaves was consistent, and when he saw businesspeople asking states to pass right-to-work laws, which forbid employers from agreeing to make union membership a condition of employment, he objected. Let’s first be clear about what these laws do. The 1947 Taft-Hartley Act, which amended the Wagner Act, contains provision 14(b), stating that Taft-Hartley should not

be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law. [Emphasis added.]

Thus states may forbid a particular kind of contract between an employer and a union. (Under Wagner a majority of employees can authorize a union to represent them regardless of an employer’s wishes, and employees who do not want to join must still pay fees to the union.)

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