My Libertarian Philosophy in the Real World (see right sidebar) critiques our liberal democracy from the perspective of Nozick’s rights-based libertarianism. Chapter 5 (the regulatory state) includes an in-depth analysis of the statutory regime governing public and private sector unions, and Chapter 8 (public education) describes how the collective bargaining authorized by these laws enable the teachers unions to unjustly promote their interests at the expense of dissenting teachers (forced to pay union dues), taxpayers, and students. Given the ever-increasing evidence of serious, pervasive rights violations by local law-enforcement, I wish I had devoted a section to this specific problem.
Because public sector unions wield enormous political power by virtue of their campaign contributions and other types of support, and since the government has a quasi-monopoly on the services it provides, negotiations between labor unions and politicians are not arms-length. Accordingly, to protect the rights of taxpayers, collective bargaining by state and local public sector employees should be prohibited, just as it is now at the federal level.
The inevitable abuses of collective bargaining also inflict more widespread harm. In the context of public education it means that teachers cannot be hired, fired, promoted and demoted on the basis of merit, nor can schoolboards recruit and retain teachers highly accomplished in math and science by offering them dramatically higher compensation than what is offered to those who are not. The suffocating effects of union work and disciplinary rules are why the authorities have to hold lotteries for slots in charter schools, which are generally not unionized.
It is quite clear that collective bargaining is also having a disastrous effect on the delivery of police services. To illustrate this, imagine you are the CEO of a private firm that sells to the public. In this capacity, you hire salespeople and customer service agents that represent you in the marketplace. Naturally, your employees run the gamut from superstars destined for promotion, to the incompetent, who sell no product and anger your customers.
Now, imagine further that you are not permitted to compensate your employees for performance, but only on the basis of seniority. To add insult to injury, suppose that any decision you make to demote or terminate a substandard worker is subject to an expensive, time-consuming review by an arbitrator sympathetic to the suspect employee. How long could you stay in business under these conditions? Answer: unless your competitors are all wearing the same shackles, about a New York City minute.
The political power wielded by the police unions in the thirty-one states that authorize collective bargaining for public sector workers makes the above thought experiment a reasonable approximation of the obstacles faced by any county sheriff or chief of police trying to do the right thing. It appears that citizen complaints regarding police abuse involving non-lethal violence or disrespect are investigated rather casually, and only mild penalties are imposed. Worse, due to the arbitration rights enshrined in union contracts, unless an officer is convicted of a felony in a court of law, it is very difficult to remove them from the force.[1] Thus, executive officials are denied the opportunity to terminate cops with long records of credible citizen complaints before they employ deadly force in dubious circumstances, or even commit murder.
Citizens abused by bullies with a badge, who are disproportionately minorities, naturally resent this treatment. This poisons the relationship between the police and the communities they are supposed to serve and reduces citizens’ cooperation with law enforcement, thereby harming the public at large.
Police, like most private sector employees, should be employed “at will.” If their superiors believe that an officer is unfit for duty, they probably are, and the public should not be exposed to the real dangers presented by such cops. The law should provide that an officer who believes he or she has been fired for illegitimate reasons may sue for reinstatement, back-pay, attorney’s fees, and even punitive damages in egregious cases. Such an arrangement would strike a fair balance between the rights of the public and law enforcement personnel.
The rule of law requires that the state be strictly neutral in its dealing with the various groups and constituencies that it serves. As Hayek noticed long ago, when it picks economic winners and losers, or arbitrarily favors some at the expense of others, this is not only objectionable in and of itself, but further bad consequences are sure to ensue. Public sector collective bargaining is a prime example, and reform is long overdue.
______________
[1] Union contracts generally provide for review of serious disciplinary actions, including termination, by independent arbitrators. The process for selecting these decision-makers is dictated by the collective bargaining agreement. Although there do not appear to be any reliable nations statistics on this, it appears that terminations of employment of police officers by their commanders are reversed in at least half the cases (see the link in main text). This is appalling, because it seems very likely that chiefs would only fire the truly bad apples because they have a natural sympathy for their officers and do not wish to incur the ire of their remaining workforce.
