Collective Bargaining and Human Rights
AUGUST 29, 2012 by CHARLES W. BAIRD
Government-sector collective bargaining is being challenged in many states. In response, government-employee unions (GEUs) are asserting that the human rights of government employees, including freedom of association, are under assault. But a correct understanding of human rights gives the lie to the unions’ self-serving jeremiads.
In states such as Indiana, Ohio, Rhode Island, and Wisconsin, chronic budget deficits and monstrous unfunded liabilities tied to government-employee pension funds and retiree health benefits have led to a revolt against GEUs. In Indiana, Governor Mitch Daniels cancelled the executive order of his predecessor that allowed collective bargaining among state employees. In Ohio, Governor John Kasich and the legislature adopted restrictions on collective bargaining and GEUs that were later overturned by referendum. In Rhode Island, State Treasurer Gina Raimondo convinced her Democratic colleagues in the legislature to adopt significant pension reforms that outraged the GEUs. In Wisconsin, Governor Scott Walker and the legislature restricted the scope of government-sector bargaining, forced GEUs to face periodic recertification, eliminated forced payment of agency fees by government employees, and stopped government agencies from automatically deducting union dues on behalf of the GEUs. For this, Governor Walker faced a recall election on June 5, which he won.
I have written on human rights and freedom of association in this magazine before. In brief, a genuine human right is nonrivalrous; that is, it can be exercised by every human at any time without one person’s exercise of the right interfering with, or diminishing in any way, any other person’s exercise of the same right. Philosophers usually refer to nonrivalrous rights as “negative” rights because the exercise of them by anyone imposes a duty on others not to interfere. Nonrivalrous rights are not created by politicians or anyone else. They are our birthright.
Jefferson called such rights “inalienable”—all human beings hold them simply because they are human beings. They are our natural rights. Thus the rights delineated in the Declaration of Independence are nonrivalrous. For example, the right to pursue happiness can be exercised by all without conflict or contradiction. In contrast, there is no right to achieve happiness in the sense that anyone is guaranteed to succeed in his pursuit of happiness. We can all pursue happiness by, for example, making offers of voluntary exchange to others, which they are free to accept or reject in their pursuit of happiness.
If I, on the other hand, had a right to achieve happiness, there would have to be some others who have a duty to provide me with the means necessary to guarantee my success. In that case my exercise of the right to achieve happiness would be in conflict (rivalry) with the right of those others to achieve their happiness. Philosophers call rivalrous rights claims “positive” rights because the exercise of such a right by Person A imposes on Person B the duty to provide Person A with the means to achieve success. Politicians are fond of enacting positive rights—that is, giving some people legal, but not natural, claims to the resources of others. Positive rights are simply politician-granted privileges.
Freedom of association is a genuine human right. It is the right of Person A to associate with any Person B who is willing to associate with him. This right can be exercised nonrivalrously. It applies to all humans simultaneously. If freedom of association meant that Person A could associate with any Person B even if Person B did not want to do so, it would be a Person A right, not a human right.
Is there a human right to collective bargaining? Yes. However, not in the way that collective bargaining is defined in the National Labor Relations Act (NLRA) and in the state statutes that impose NLRA-style unionism on state and local government employees.
Politicians have created mandatory good-faith bargaining between employers and certified unions representing employees. Workers are coerced into association with unions through majority vote, and employers are forced into a bargaining association with the unions. The bargaining must be in “good faith,” which means that no take-it-or-leave- it offers may be made. All of this is coerced, not free, association.
Collective bargaining is consistent with human rights when a union, representing only voluntary members, bargains on behalf of them with an employer who agrees to bargain with the union. Both sides would be able simply to say no and walk away. The ordinary common law of contract would apply.
Moreover, mandatory good-faith collective bargaining in the government sector violates basic principles of democratic government. The U.S. Constitution, like each state constitution, specifies three branches of government—the executive, the legislative, and the judicial. There is no mention of a fourth branch of government called government-employee unions.
Mandatory “good-faith” bargaining is done behind closed doors with the general public having neither access nor voice. Terms and conditions of employment in the government sector are matters of public policy that have, among other things, significant effects on taxes. The government agencies that employ workers are typically part of the executive branch. Because bargaining is mandatory the executive branch is compelled to bargain with GEUs on matters of public policy. Because of “good faith” rules, the agency bureaucrats that allegedly sit on the opposite side of the collective-bargaining table from the GEUs must get consent on some matters of public policy, thus the GEUs have veto power over those matters. In effect the GEUs are coequal with the executive branch of government in all matters that come under the scope of collective bargaining. They are a fourth branch of government.
During government-sector collective bargaining the agency heads that negotiate with the GEUs do not represent the interests of taxpayers. The bureaucrats want larger and larger budgets, and the GEUs want higher and higher wages, salaries, and retirement benefits. Thus the bureaucrats and the GEUs have a common interest—picking the pockets of taxpayers.
Politicians created these positive rights for unions, so politicians are entitled (I think morally compelled) to take them away. Scott Walker and the others violated no human rights when they reduced the set of privileges given to GEUs by their predecessors. Unions do not have natural rights. Only humans have natural rights. Moreover, there are no “labor rights” apart from the human rights possessed by all workers. Government-sector bargaining is always based on arbitrary privileges pretending to be human rights.