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“Freedom of Representation” Is a Better Name Than “Right To Work”

15 Friday Sep 2017

Posted by pnoetx in Right to Work, Unions

≈ 1 Comment

Tags

Agency Fees, Compelled Riders, Competitive Enterprise Institute, David Boaz, David Henderson, Eric Greitens, Exclusive Representation, Free Riders, Gary Chartier, Holman Jenkins, Ivan Osorio, Joe Lehman, Mackinac Center for Public Policy, Missouri Right to Work, monopoly, Monopsony, National Labor Relations Board, Right to Work, Sheldon Richman, Taft-Hartley Act, Vinnie Vernuccio, Wagner Act

Missouri’s Right-to-Work (RtW) legislation, signed into law by Governor Eric Greitens in February of 2016, essentially states that no employee or prospective employee, with certain exceptions, can be required to join a union or to pay union dues or agency fees. But before the RtW law’s effective date on August 28th, well over 300,000 signatures were collected in opposition, which is believed to meet state requirements for a referendum on the issue. As a consequence, the law was put on hold, pending a vote in November.

A casual look at a variety of statistics by state “right-to-work” status shows an impressive advantage for RtW states, though that doesn’t imply causality. One can certainly think of reasons why the causality might be operative, and I find some of them plausible, but that’s not the line of argument I want to pursue here.

The Libertarian Divide

Libertarians are of divided opinion on the desirability of RtW laws. David Boaz wrote about this division back in 2012. On one side, it’s clearly an abrogation of an individual workers’ rights to require, as a condition of employment, entry into a third-party association against their will, or to coerce payment of dues or fees for collective bargaining and ongoing representation on a variety of job-related issues. Such a requirement would violate the constitutional protections on freedom of association, freedom of speech, and freedom of contract. Boaz quotes Vinnie Vernuccio and Joe Lehman of the Mackinac Center for Public Policy:

“Right to work does not change any aspect of collective bargaining other than preventing employees from getting fired for choosing not to join or remain in a union and pay union dues or agency fees, which may go toward political causes they don’t support. Collective bargaining still exists in right-to-work states, and workers are of course free to organize.“

This may overstate the consequences for workers who would rather not join a union. Non-union workers have so-called Beck rights, which allow them to opt out of “core membership” and  pay reduced dues covering only representation. An appropriate accounting for that portion of dues might not be straightforward, however, and it is still likely to represent an involuntary payment. Moreover, awareness of Beck rights is far from universal, and asserting them might not be straightforward.

Libertarians who disagree with the perspective expressed in the quote above emphasize the employers’ freedom of contract as though it takes primacy over worker autonomy in the shaping of voluntary and mutually beneficial employment relationships. The thinking is that an employer might actually prefer to host a union shop. There are presumed efficiencies of collective bargaining, standard and agreed-upon work rules, lower turnover, and perhaps even worker loyalty. Among this group of libertarians are Holman Jenkins, Sheldon Richman, and Gary Chartier:

“When a legislature interferes with voluntary employment contracts, it infringes people’s freedom to bargain with their own labor and possessions. Treating this kind of interference as acceptable means licensing arbitrary interventions into the market by politicians, who are ill-equipped to second-guess the decisions made by the real people making work agreements with one another.“

Labor Law

One could be forgiven for thinking that Chartier and the others view RtW as a form of government intervention in otherwise free labor markets. These critics acknowledge, however, that there is already intervention in labor relations via the Wagner Act (1935), which among other things prohibits any refusal “to bargain collectively with the representative of the employer’s employees.” Under the Act, the National Labor Relations Board (NLRB) is charged with:

“… overseeing the process by which employees decide whether to be represented by a labor organization and prosecuting violations. ... issue rules interpreting the labor legislation. This will generally be binding, unless a court deems it to have acted outside its authority. … prevent unfair labor practices, lead investigations, collect evidence, issue subpoenas, and require witnesses to give evidence.“

So, the NLRB is empowered to force employers, if it so chooses, to bargain collectively and even to rule on whether a vote by employees was “fair”. RtW laws are defended as a force to countervail against this federal power. The Wagner Act was later amended by the Taft-Hartley Act (1947) to curb union power and abuses. It created more balance in the relations between unions and employers and it offered some protection to non-union job seekers by prohibiting closed shops. It also allowed states to pass RtW laws to proscribe the forced payment of agency fees by non-union employees, if states so choose. Nevertheless, labor law continues to support monopoly union privileges and abusive tactics. Moreover, restrictions on unions’ use of dues and agency fees for political activities are difficult to enforce in the absence greater requirements for union financial transparency. The response from libertarian critics of RtW laws is that there are avenues for additional reform at the federal level without adding additional interventions (RtW) at the state level.

One of the clearest rebuttals to the above arguments against RtW laws comes from Ivan Osorio of the Competitive Enterprise Institute, who first quotes Chartier on prospective legislation in Indiana:

“‘If employers choose to conclude union-shop contracts with unions, what gives the Indiana legislature the right to interfere?‘”

Here is Osorio’s rejoinder:

“... there is no jurisdiction anywhere in the United States where there is no such interference at all. Simply replace “union shop” with “open shop,” and the one-sidedness of Chartier’s query … becomes clear. Why should the government forbid an employer from negotiating a voluntary membership agreement with a union?“

Exclusive Representation

Another side of the RtW debate is the contention that non-union workers receive the same benefits achieved via collective bargaining if they are employed by a firm having an otherwise unionized work force. Thus, the non-union workers are said to be “free riding” on the union’s efforts. This framing is highly misleading, however. Under the Wagner Act, a firm’s non-union workers are not entitled to pay for benefits negotiated by the union unless the union has opted for exclusive representation. In that case, those non-union workers are not so much free riders as “compelled riders“, who may be forced to accept certain terms, working conditions and particular representation in grievances against their wishes. The union’s exclusive power is thus flexed in two ways: as a monopoly seller of labor to the firm, and as a monopoly seller of agency services to the worker, extracting dues or agency fees in the process.

Balancing Rights

David Henderson’s perspective on the RtW issue is appealing, as he accounts for the tradeoff between emphasizing the rights of workers and employers:

“It’s true that [RtW] laws make it illegal for employers to do what some of them might want to do: namely hire only union workers, require everyone who works for them to join unions, or require everyone who works for them to pay dues to a union. But are there really likely to be many such employers? I don’t think so. …

Now, I don’t know that there are no such employers. Maybe there are some. If so, then it becomes a tradeoff. On the one hand, preserve the rights of many non-union workers, many union workers, and unionized employers but trample on the rights of those few unionized employers. On the other hand, trample on the rights of many union workers, non-union workers, and unionized employers but preserve the rights of those few unionized employers. I choose the first option because I think it tramples on way fewer people’s rights. And, remember, that if you say right-to-work is wrong and you get your way just on that issue, the federal government will continue to trample on many people’s rights. …

… the best solution is to abolish the law that gives government-enforced monopoly power to unions. Sheldon [Richman] and I agree on this. The issue here is whether we should just settle for saying that and pushing for that or do something else meanwhile.“

Union representation can protect workers from an imbalance of power between a large employer and individual workers. But it is not all sweetness and light for unionized workers, not to mention consumers who pay for the influence of unions on prices in general. While unions played a critical role in establishing and defending workers’ rights over the years, they have increasingly presented agency problems for their constituencies. They have also hastened declines in industries facing competitive pressures, which in turn have hastened the decline of union representation generally. (Public sector unions present a different set of problems involving conflicts of interest with taxpayers, but those are beyond the scope of this post.) In general, worker rights in the private sector are better served by allowing self-determination in the matter of union representation. To the extent that state RtW laws protect that autonomy, they are probably worthwhile at this point in the evolution of labor relations. However, if that is the primary effect, RtW is something of a misnomer.

Courts and Their Administrative Masters

04 Tuesday Apr 2017

Posted by pnoetx in Big Government, Regulation

≈ 1 Comment

Tags

Administrative Law, Administrative State, Chevron Deference, Chevron USA, Clyde Wayne Crews, Competitive Enterprise Institute, Ilya Somin, Jonathan Adler, Kent Jordan, Natural Resources Defense Council, Neil Gorsuch, Philip Hamburger, Regulatory Dark Matter, Separation of Powers

IMG_4007

Supreme Court nominee Neil Gorsuch says the judicial branch should not be obliged to defer to government agencies within the executive branch in interpreting law. Gorsuch’s  opinion, however, is contrary to an established principle guiding courts since the 1984 Supreme Court ruling in Chevron USA vs. The Natural Resources Defense Council. In what is known as Chevron deference, courts apply a test of judgement as to whether the administrative agency’s interpretation of the law is “reasonable”, even if other “reasonable” interpretations are possible. This gets particularly thorny when the original legislation is ambiguous with respect to a certain point. Gorsuch believes the Chevron standard subverts the intent of Constitutional separation of powers and judicial authority, a point of great importance in an age of explosive growth in administrative rule-making at the federal level.

Ilya Somin offers a defense of Gorsuch’s position on Chevron deference, stating that it violates the text of the Constitution authorizing the judiciary to decide matters of legal dispute without ceding power to the executive branch. The agencies, for their part, seem to be adopting increasingly expansive views of their authority:

“Some scholars argue that in many situations, agencies are not so much interpreting law, but actually making it by issuing regulations that often have only a tenuous basis in congressional enactments. When that happens, Chevron deference allows the executive to usurp the power of Congress as well as that of the judiciary.”

Jonathan Adler quotes a recent decision by U.S. Appeals Court Judge Kent Jordan in which he expresses skepticism regarding the wisdom of Chevron deference:

Deference to agencies strengthens the executive branch not only in a particular dispute under judicial review; it tends to the permanent expansion of the administrative state. Even if some in Congress want to rein an agency in, doing so is very difficult because of judicial deference to agency action. Moreover, the Constitutional requirements of bicameralism and presentment (along with the President’s veto power), which were intended as a brake on the federal government, being ‘designed to protect the liberties of the people,’ are instead, because of Chevron, ‘veto gates’ that make any legislative effort to curtail agency overreach a daunting task.

In short, Chevron ‘permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the [F]ramers’ design.’

The unchecked expansion of administrative control is a real threat to the stability of our system of government, our liberty, and the health of our economic system. It imposes tremendous compliance costs on society and often violates individual property rights. Regulatory actions are often taken without performing a proper cost-benefit analysis, and the decisions of regulators may be challenged initially only within a separate judicial system in which courts are run by the agencies themselves! I covered this point in more detail one year ago in “Hamburger Nation: An Administrative Nightmare“, based on Philip Hamburger’s book “Is Administrative Law Unlawful?“.

Clyde Wayne Crews of the Competitive Enterprise Institute gives further perspective on the regulatory-state-gone-wild in “Mapping Washington’s Lawlessness: An Inventory of Regulatory Dark Matter“. He mentions some disturbing tendencies that may go beyond the implementation of legislative intent: agencies sometimes choose to wholly ignore some aspects of legislation; agencies tend to apply pressure on regulated entities on the basis of interpretations that stretch the meaning of such enabling legislation as may exist; and as if the exercise of extra-legislative power were not enough, administrative actions have a frequent tendency to subvert the price mechanism in private markets, disrupting the flow of accurate information about resource-scarcity and the operation of incentives that give markets their great advantages. All of these behaviors fit Crews’ description of “regulatory dark matter.”

Chevron deference represents an unforced surrender by the judicial branch to the exercise of power by the executive. As Judge Jordan notes in additional quotes provided by Adler at a link above, this does not deny the usefulness or importance of an agency’s specialized expertise. Nevertheless, the courts should not abdicate their role in reviewing an agency’s developmental evidence for any action, and the reasonability of an agency’s applications of evidence relative to alternative courses of action. Nor should the courts abdicate their role in ruling on the law itself. Judge Gorsuch is right: Chevron deference should be re-evaluated by the courts.

Lighten Up For Human Achievement Hour!

25 Saturday Mar 2017

Posted by pnoetx in Free markets, Human Welfare

≈ Leave a comment

Tags

Chelsea Follett, Competitive Enterprise Institute, Earth Hour, Fracking, Free Markets, Human Achievement Hour, Human Ingenuity, HumanProgress.org, Lowering Emissions

idea-light-bulb

Tonight, Saturday March 25th from 8:30 to 9:30, I’ll be doing my part to celebrate humankind’s ascendence over the bare subsistence and misery that was ubiquitous until just the last few centuries. Human Achievement Hour is sponsored by the Competitive Enterprise Institute (CEI) to celebrate the incredible technological miracles  brought forth by human ingenuity and free markets:

“Originally launched as the counter argument to the World Wide Fund for Nature’s Earth Hour, where participants renounce the environmental impacts of modern technology by turning off their lights for an hour, Human Achievement Hour challenges people to look forward rather than back to the dark ages.

Symbolically or not, Earth Hour is a misguided effort that completely ignores how modern technology allows societies to develop new and more sustainable practices, like helping people around the world be more eco-friendly and better conserve our natural resources.

While Earth Hour supporters may suggest rolling brown-outs in India are desirable, we respectfully disagree. Instead of sitting in the dark, Human Achievement Hour promotes new ideas and celebrates the technology and innovation that will help solve the world’s environmental challenges.”

The following are suggestions from CEI as to how you can participate in the celebration. I’ll take them up on the third and sixth items on this list, just as I have for the past several years.

  • Use your phone or computer to connect with friends and family
  • Watch a movie or your favorite television show
  • Drink a beer or cocktail
  • Drive a car or take a ride-sharing service
  • Take a hot shower
  • Or, in true CEI fashion, celebrate reliable electricity that has saved lives, by bringing heat and air conditioning to people around the world, and keep your lights on for an hour

Light up the night! Here are a couple of links with information on the worldwide progress in improving human living conditions:

The Human Progress Blog

Thank Fracking For Reduced Emissions

We are winning the war against starvation, disease and poverty around the globe, though progress can seem frustratingly gradual in real time. Nevertheless, over the sweep of history, we are winning the battle in a dramatic way.

Good Bets, Bad Bets & Student Debts

07 Sunday Aug 2016

Posted by pnoetx in Education, Student Loans

≈ Leave a comment

Tags

Competitive Enterprise Institute, Default Risk, Free College, National Public Radio, Paul Kupiec, Ryan Nabil, Sandy Baum, Student Loans, Subsidized Lending, Urban Institute

garbageducation

Recent proposals for “free” college education are partly motivated by a hubbub over crushing student debt, but a recent book by Sandy Baum of the Urban Institute questions that narrative. Entitled “Student Debt: Rhetoric and Realities of Higher Education“, the book offers perspective on the use of debt to fund post-secondary education. Student loans are perfectly good funding methods in many circumstances, but it should go without saying that borrowing is a bad idea when the sought-after education is a bad idea.

Here are some facts about student-loan debt presented in an interview with Baum by National Public Radio (NPR). They are not particularly alarming:

  • A third of college students who earn a four-year degree graduate with no debt…. 
  • A fourth graduate with debt of no more than $20,000.
  • Low-income students hold only 11 percent of all outstanding [student] debt.
  • Almost half of the $1.3 trillion in student loan debt is held by 25 percent of graduates who are actually making a pretty high income.“

Hindsight is 20/20 when a student fails to complete a course of study, but a non-trivial percentage of individuals have no business entering college programs to begin with, let alone with the aid of publicly subsidized loans. Quite simply, good risk management demands that loans be withheld from students who lack minimum academic qualifications. Odds are heavy that it would be a favor to the taxpayer, and an even bigger favor to the erstwhile student. There are many degree programs that have low labor-market value, which are therefore likely to be poor investments for students and lenders. And a number of institutions have records of poor performance in preparing students for the labor market. It would be wise for anyone seeking additional education to avoid these schools.

Baum asserts that these issues must be addressed through better guidance for prospective students:

“Some schools don’t serve students well. Some students aren’t prepared to succeed no matter where they go to college. We just tell everybody: ‘Go to college. Borrow the money. It will be fine.’ … We don’t give people very much advice and guidance about where … when to go to college, how to pay for it, what to study.“

Baum goes on to offer a socioeconomic profile of individuals with a high propensity to default on student loans:

“The problem is that we have a lot of people actually borrowing small amounts of money, going to college, not completing [a degree] or completing credentials that don’t have labor market value. They tend to be older. They tend to come from disadvantaged, middle-income families and they’re struggling. [But] not because they owe a lot of money.“

For those who are not promising students, many skills can and should be developed by leveraging low-level employment opportunities. That may well be the most productive path for them, and we should not be shy about saying so, but mutually beneficial work arrangements between employers and these prospective workers are discouraged by wage floors and other regulations.

What isn’t mentioned in the NPR interview is that some individuals fitting the socioeconomic profile actually have excellent academic prospects, so borrowing might be worthwhile. And Baum notes that the great majority of students entering baccalaureate programs are very good credit risks. Subsidizing them with a “free” education is unnecessary and bad public policy:

“People have an image of a recent bachelor’s degree recipient who went to college for four years and is now 22-23 years old and is working at Starbucks. Those people are very rare. … People who earn bachelor’s degrees, by and large, do fine. … We should worry a lot less about 18-year-olds going off to college and borrowing $20,000, $25,000, for a bachelor’s degree.“

While Baum justifiably contends that many students are good credit risks, I do not subscribe to the notion that all student loans should be subsidized by taxpayers at below-market interest rates. The returns to education are such that most students can afford to pay market rates, but those rates must compensate lenders for the risk of default. Minimizing default risk on the lending side becomes an impotent afterthought in a world of lax academic standards and universal loan subsidies. Bad loans can only be reined-in by sober admission policies and wise selection of degree programs that have labor market value. For this reason, Paul Kupiec and Ryan Nabil of the American Enterprise Institute recommend reforms that would give academic institutions better incentives to ensure the success of their students by putting “skin in the game”:

“Colleges typically do not lend to students directly. Consequently, they have little incentive to ensure that the debts incurred by their students are repaid. So, like brokers in a predatory lending process, colleges and universities push their students to take on debt, regardless of their future ability to repay.“

To correct these misaligned incentives, schools would essentially pay a financial penalty when their former students, graduates or dropouts, default on loans.

“With ‘skin in the game,’ colleges will face pressure to control unnecessary costs and limit student indebtedness. Colleges will redouble their efforts to ensure that students graduate with the skills necessary to succeed in the job market. Resources will no longer be freely available for unnecessary non-educational university spending. To achieve these goals, the share of university-provided student funding must be large enough to give colleges the requisite incentives.“

Kupiec and Nabil briefly describe several possible mechanisms whereby schools could handle these kinds of demands.

Problems with crushing student loan debt are confined to certain segments of borrowers. Failure to complete a program, and degree programs that add little to a student’s labor market value, are prescriptions for default. Admitting unqualified students and offering weak degree programs are shortcomings of the schools themselves. Without fundamental reform, schools have little incentive to act responsibly. Furthermore, loan subsidies encourage excessive borrowing and fuel inflation in tuition. “Free college” proposals do not offer a serious solution for stemming these losses.

Human Achievement, Comfort and Joy

28 Saturday Mar 2015

Posted by pnoetx in Human Welfare

≈ 1 Comment

Tags

Alex Epstein, Competitive Enterprise Institute, Earth Hour, Fossil fuels, Free Markets, Human Achievement Hour, International Dateline, Matt Ridley, Ronald Bailey, The Rational Optimist, Tonga

sisyphus-when-you-ve-got-a-minute

2015’s Human Achievement Hour (HAH) starts at 8:30 p.m. on Saturday, March 28. That’s tomorrow night! It starts at 8:30  p.m. in every time zone, so it’s a rolling celebration. But you can celebrate human achievement for a full 24 hours, starting Saturday at about 2:30 a.m. Central Daylight Time, when it will be 8:30 p.m. Saturday in Tonga, just over the international date line. It’s coming up soon! This will be my third year of celebrating HAH. To mark the occasion I just might start celebrating with the Tongans. Here is the Facebook event page for HAH. The Competitive Enterprise Institute is the sponsor of HAH. Here is the first part of their description, followed by their suggestion for how to celebrate.

“Observing Human Achievement Hour is about paying tribute to the human innovations that have allowed people around the globe to live better, fuller lives, while also defending the basic human right to use energy to improve the quality of life of all people.” “In order to celebrate with CEI and friends worldwide, we invite you to enjoy the benefits of energy, capitalism, and human innovation by utilizing your favorite innovation or human advancement…“

Once again this year, I will illuminate every lightbulb in my home to pay homage to the wonder of widely distributed electricity and the tremendous benefits derived from our ability to harness the power of fossil fuels. In a review of Alex Epstein’s The Moral Case for Fossil Fuels, Ronald Bailey of Reason says:

“As humanity burned more fossil fuels and increased carbon dioxide in the atmosphere, human lives dramatically improved. ‘Weather, climate, and climate change matter—but not nearly as much as they used to, thanks to technology,’ Epstein writes. For example, the death rate from extreme weather events has dropped 98 percent since 1920. Indeed, the chief benefit of burning fossil fuels has been longer and healthier human lives. The central idea of Epstein’s book is that ‘more energy means more ability to improve our lives; less energy mean less ability—more helplessness, more suffering, and more death.’“

Matt Ridley adds his thoughts on the benefits of fossil fuels at The Rational Optimist blog. Both Ridley and Bailey are confident that humans will one day achieve such efficiencies in the production of energy from renewable sources as to be competitive with fossil fuels. That will be worth celebrating. We are not there yet, however, and we do ourselves no favor in attempting to restrict fossil fuel consumption in the meantime. In fact, the risks of anthropomorphic global warming are far less severe than climate activists insist. Moreover, a warmer climate would not be unambiguously bad for people.

It is no accident that HAH is scheduled to coincide with Earth Hour, a “celebration” that stands in stark contrast to HAH in its antipathy for free market institutions and its condemnation of humankind’s relatively recent success in adapting to our planet’s environment. But there is no doubt that our progress in reducing poverty has hinged on the complementary nature of human ingenuity and the free market, the latter being a fairly recent (on historical scales) and most powerful innovation for promoting voluntary human cooperation and enrichment. Here is a recent Ridley post in which he elaborates on reasons for continued optimism. A quote:

“For 200 years, pessimists have had all the headlines-even though optimists have far more often been right. There is immense vested interest in pessimism. No charity ever raised money by saying things are getting better. No journalist ever got the front page writing a story about how disaster was now less likely. Pressure groups and their customers in the media search even the most cheerful statistics for glimmers of doom. Don’t be browbeaten-dare to be an optimist!“

Let’s celebrate for the right reasons. The flourishing of human welfare in the face of a harsh natural environment is real achievement.

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A Commonwealth immigrant's perspective on the UK's public arena.

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News, Sports, Weather, Traffic and St. Louis' Top Spots

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The world's most viewed site on global warming and climate change

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Commentary from a Paleoconservative and Nationalist perspective

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In advanced civilizations the period loosely called Alexandrian is usually associated with flexible morals, perfunctory religion, populist standards and cosmopolitan tastes, feminism, exotic cults, and the rapid turnover of high and low fads---in short, a falling away (which is all that decadence means) from the strictness of traditional rules, embodied in character and inforced from within. -- Jacques Barzun

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