Alright labour law students, we’re back and ready to start another year of Law of Work blogging on issues in labour and employment law! Let’s begin the Fall 2013 term with a story about ‘bullshit’. In particular, how ‘bullshit’ permeates most political debates about labour law policy these days.
This week, the far right wing corporate lobby The Fraser Institute issued yet another of its ‘studies’ advocating that Canada should follow the lead of low wage American states like Mississippi and Oklahoma by passing a law that would force unions to provide free services to nonmembers (“right to free ride law”). The present situation leaves the decision of whether workers must pay union dues up to the democratic process: a clause in a collective agreement requiring all employees covered by the agreement to pay union dues is required by law to be put to a vote of the employees, and if a majority of employees vote for the agreement, then a mandatory dues payment clause becomes enforceable. The majority can impose a requirement to pay union dues on the minority. That’s the majority rules system our governments created. In the 1980s, the Ontario Conservative Party strengthened the law by saying that if the union proposes the dues clause, then the employer can’t pick a fight about it. The law leaves it to the employees and majority rules ballot to decide.
Follow the argument:
The claim is that these laws lower the amount of the revenues unions bring in, which weakens the ability of unions to effectively bargain decent wages, benefits, and pension for workers, which makes being in a union less attractive to workers, which reduces the level of unionization, which causes companies to ‘create more jobs’, because if employers can pay crappier wages and benefits, they will hire more workers.
The Fraser Institute doesn’t explain the argument this clearly. ‘We need a law that produces crappy paying jobs” isn’t as catchy a slogan as
“we need a law that gives ‘worker choice’”, so they use the latter. In the US, they call laws that force unions to provide free services to nonmembers ‘right to work’ laws. Martin Luther King famously denounced this as a ‘false slogan’, noting that wherever the laws are passed wages are lower and civil rights weaker. So the Fraser Institute is taking on Martin Luther King here.
The reason that the Fraser Institute issued this ‘report’ now is that the Ontario and Federal Conservatives have plans to introduce the laws in question. The Tories want ‘right to work’ laws because they are desperate to weaken the voice of the labour movement in the political process. Hudak in particular has blamed labour funded anti-Tory ads for his humiliating defeat in the last provincial election. His attempts to stop these ads through litigation were tossed by the courts, and so the only way left to silence his political foe is to try and cut off their funds. Who knows whether the Tories actually believe the claims that these laws create jobs, but that is not the principal reason why the Tories want to cut off union funding. This is all about trying to silence a serious political foe.
The Fraser Institute’s role is to produce reports to support the political parties. They do this by citing ‘studies’ produced by American right wing think tanks, and by selectively quoting other scholarly studies that appear to support their wild claim that a mere little law about how unions collect dues can fundamentally alter the entire economic landscape of entire province or country. The Fraser Institute even produces an exact number. It says banning union dues collection clauses would ‘increase manufacturing output by $4 billion’ in Ontario alone!! Wow! Apparently, all those factories that moved to China and Mexico because of free trade will suddenly come rushing back to Ontario. Only thing stopping them from doing so now is little old Section 47 of the Labour Relations Act. What a very powerful law that must be.
Of course, this is all ‘bullshit’.
The Bullshit of Labour Policy Debates
Distinguished Yale philosophy professor Harry Frankfurt wrote a book On Bullshit. Great little book, which I highly recommend. Bullshit isn’t the same thing as lying, though they can overlap. Bullshit is a statement passed off as factual reality when in fact the speaker is indifferent to how things really are. They don’t care if their statement is true or false, because the statement is really just intended to advance some other unexpressed motive. A bullshitter may or may not be engaged in deliberate lying, but they are certainly engaged in deliberate misrepresentation or deception about what they are up to. Frankfurth put it this way:
The bullshitter may not deceive us, or even intend to do so, either about the facts or about what he takes the facts to be. What he does necessarily attempt to deceive us about is his enterprise. His only indispensibly distinctive characteristic is that in a certain way he misrepresents what he is up to… [The bullshitter] does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.
This definition of ‘bullshit’ describes perfectly what the Fraser Institute is up to, along with the Ontario Conservative Party in their paper “Paths to Prosperity” in which they propose the same right to free ride law for Ontario.
The one thing honest (non-partisan) scholars who study union dues laws agree on is that it is impossible to measure what effect those laws have on jurisdiction wide economic performance. We can’t isolate a causal relationship between a law that governs how unions collect dues, and the performance of an entire economy. Consider an example. We can look at Oklahoma and find that it has three times as many baseball diamonds as Ontario. Then we can look at wage rates in the two places. Let’s say that average wages are 10 percent higher in Ontario (I’m making up a number). Does that mean that having fewer baseball diamonds causes higher wages? That sounds stupid, but nevertheless, the raw statistics could be used to justify a law to reduce the number of baseball diamonds. This is the sort of voodoo economics and legal reasoning that goes on in labour law debates about union dues laws. Since the public doesn’t understand methodologies used in economic studies, it’s easy for politicians to say: “studies show that reducing the number of baseball diamonds leads to better jobs“. Or, ‘studies show that banning union dues clauses creates jobs“. That statement is technically true, as long as someone has written such a study. Enter the Fraser Institutes of the world. Their purpose is to produce those ‘studies’.
A politically neutral literature review done for the US Senate of the relationship between union dues laws and economic performance concluded this:
In assessing the potential effects of expanding RTW, existing empirical research is inconclusive. Comparing outcomes in states with and without RTW laws can provide limited perspectives on possible effects of these laws, but states’ economies are extremely complex and even the most sophisticated studies are unable to fully isolate the effects of varied union security policies. Furthermore, the variation in findings among researchers suggests that no consensus will be reached in the near future. As such, the ongoing debate on RTW may be driven by factors other than rigorous empirical evidence.
Reports issued by the Ontario Federation of Labour and the Canadian Centre for Policy Alternatives reference other studies and findings that refute the claims being made by the Fraser Institute and the Ontario Conservatives about the supposed causal relationship between a union dues collection law and economic performance of an entire jurisdiction. The public can’t make sense of the claims coming out of either side of the debate, but that doesn’t matter to advocates of new laws. The point of the exercise isn’t to educate and inform the public. It is to advance a particular political agenda that is never explicitly mentioned. The point is to bullshit voters.
Any politician (or think tank) who tells you that banning union dues clauses will have this or that effect on the Canadian economy is ‘bullshitting’. They don’t know what, if any effect the law will have, particularly since we’ve never had such a law in Canada. Even if Americans could prove a causal link between the laws and economic outcomes in the US (which they cannot), there is no reason to believe that the same results would necessarily follow in Canada. Our system, history, values, and practices are different. I suspect, for instance, that Canadian workers on the whole will be very uncomfortable with the idea of taking the higher wages, benefits, pensions, and job security in a collective agreement without contributing the small amount of dues their coworkers are paying. Peer pressure to continue paying will be enormous in a country with a long history of collective responsibility (think of the high support for collective public health insurance here).
Yet, Conservatives and the Fraser Institute will have us believe that they know for sure what will happen if the laws on union dues are changed, and that all of the results will be positive. The truth of their claims is not their point. They are ‘bullshitting’ the public. They have other motives. For the Conservatives and The Fraser Institute, the motive is to weaken a political foe, trade unions, by making it more difficult for them to collect fees for their services. You may or may not support them in this, but that’s besides the point. This is exactly what Frankfurt meant when he spoke of ‘bullshit’ in public discourse.
The Ontario Conservative Party’s ‘Bullshit’
Tim Hudak’s Path to Prosperity paper is chalk full of bullshit. There are some ‘facts’ in there that may or may not be true, but then the Party makes completely unsubstantiated claims about them that have no basis in reality. Here’s one of many examples:
“Over the last decade, more than five million Americans have moved from states where union financial support is mandatory to states where it is voluntary.”
See what they did there? They want the reader to infer that the two things (population migration and union dues laws) are related, though the Tories don’t actually come out and say that. I don’t know if its true that 5 million Americans moved as they claim. But I do know that nothing proves that they did so because of some little law about union dues collection. To suggest a link between these two unrelated events is like making a link between the quantity of baseball diamonds and wage rates.
Keep in mind that in the US, private sector unionization is at about 6 percent. The odds of a worker being unionized are so minuscule that it is nonsensical to suggest that people choose where to locate their families based on an obscure law about union dues. Most Americans will never be unionized, and the details of labor laws are completely irrelevant to them. Now note that workers in states that have laws of the sort Hudak wants to pass in Ontario (banning union dues collection) earn on average nearly 17% less than workers in states where no such laws exist (according to the Senate report linked to above), and have fewer health benefits, worse pensions, and more workplace accidents. So, the Tory argument is that people up and move their families to states with ‘right to work laws’ in order to earn 17% less money, have fewer health and pension benefits, and work in more dangerous workplaces, just for the assurance of knowing that, in the extremely unlikely event that they end up at a unionized workplace, they will not be required to pay union dues against their will. Beyond stupid. Complete ‘bullshit’, in the Frankfurter sense. This is the Oklahoma baseball diamond example. Yet, there it is. In a formal policy paper produced by a serious political party with designs on running Canada’s largest province.
Here’s another example of bullshit from Hudak’s policy paper:
“Numerous economic reports and academic studies confirm that such reforms boost economic performance across every indicator, from job creation to economic growth to standard of living to new business openings to shareholder investment.”
Here, the Tories appear to suggest that simply changing the law on how union dues are collected will miraculously lead to both higher wages and more jobs. That argument runs counter to the usual Tory argument that higher wages (think minimum wage increases, collectively bargained wage increases) lead to fewer jobs. Now the Tories are telling us that employers will rush into Ontario and pay higher wages than they are now, raising the standard of living of Ontarians, if only our laws allowed workers to opt out of paying union dues. Never mind all of the studies that show that wages in states that have these laws are considerably lower than states that do not. Neither the Tories nor the Fraser Institute mention those.
There are some truths scattered in the last passage, but they are half-truths, laced with misdirection. No doubt there are some ‘studies’ that show these things, but they are produced by organizations like the Fraser Institute. Any reputable study not funded by a Republican or corporate think tank will note that any findings about the supposed link between economic wide performance and a union dues laws are subject to lots of assumptions and provisos that prevent broader generalizations of the sort the Tories are making. The simple fact that earnings of workers in non-right to free ride states is nearly 17% higher makes you scratch your head at the Tory claim that their proposed law banning union dues clauses will raise the standard of living in Ontario. The list of US states with these laws include many of the poorest, lowest wage, least prosperous states in America.
And note the word “numerous” that opens the above quotation. Left unstated is the fact that there are many other studies finding the exact opposite of what the Tories claim, and still others that find it’s impossible to isolate any impact from these laws on economic performance whatsoever. The Tories are cherry-picking from a few studies that loosely support their claims while ignoring the much larger pile of studies that don’t.
Scholars try to ‘control’ other variables, but no reputable scholars dare suggest that they can draw a direct causal line between union dues laws and aggregate state- or national-level wages or employment levels. For example, it might be tempting to conclude that the lower union density rates in states that ban union dues clauses is a caused by that law. But, in fact, scholars have noted that all of the southern US states that passed these laws had union density rates well below the national average even before the law was adopted. This suggests that there is something about those states other than union dues laws that trends against workers joining unions. It may be that it is easier to pass these laws in states where workers are just less interested in collective bargaining to begin with, so that the causal relationship is reversed: low union density contributes to the odds that a state will pass ‘right to free ride’ laws, not the other way round.
Finally, remember that about 85 percent of Ontario employees in the private sector are nonunion! Even if the law were changed to allow workers to free ride on the work of unions, it would effect only a very small proportion of the Ontario economy. The odds of new businesses in Ontario becoming unionized are very small. That’s why our labour laws have had no effect whatsoever on decisions by huge American antiunion companies like Walmart, Target, Starbucks, and Home Depot, to name a few, to invest in Ontario. To suggest that Section 47 of the Labour Relations Act is holding back some $4 billion dollars in economic growth in Ontario is beyond ridiculous.
So, thanks to the Tories and the Fraser Institute for providing us with a textbook example of Frankfurther’s ‘bullshit’ thesis. Let’s keep our collective antennas up for more bullshit in the months to come as these issues get debated by politicians.
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