The “Unequal Bargaining Power” Trope

Defenders of trade unions generally, and of constitutional protections for union rights, notably the right to force an unwilling employer into collective bargaining and the right to strike, usually invoke the “unequal bargaining power” of workers and employers in support of their position. The Supreme Court relied on this claim when it constitutionalized the right to collective bargaining in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, and the right to strike in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245. In Mounted Police, the majority claimed that

Without the right to pursue workplace goals collectively, workers may be left essentially powerless in dealing with their employer or influencing their employment conditions. … Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals. [68, 70]

The problem with this statement is that it is simply not true. I said so here and in a National Post op-ed. But you don’t have to take it from me. Take it from the economist Bryan Caplan, who has a detailed, point-for-point reply to an “unequal bargaining power” argument over at EconLog. Hard as it is to resist the temptation to copy and paste the whole thing here, I’ll content myself with just two quotes:

Everyone talks as if bosses have the better end. But talk is very different from action. If everyone were trying to start their own businesses and hire workers, that would count as “acting as if bosses have the better end of the deal.” Most workers, however, make no effort to become entrepreneurs. You could object that most workers don’t have the money to open their own businesses, but most rich workers make no effort to become entrepreneurs either.

And:

Most workers in the U.S. aren’t in unions. Most aren’t even close to being in unions. Yet most U.S. workers earn well above the minimum wage. A simple supply-and-demand story can explain this. [The “unequal bargaining power means unions are necessary”] story doesn’t.

Please, please, please read the whole thing ― and pass the link on to a Supreme Court judge the first chance you have. Thank you!

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota