The Right to Work: A Fundamental Freedom

HILLSDALE COLLEGE, "IMPRIMIS," May/June 2011 by Mark Mix, President, National Right to Work Legal Defense Foundation - The following is adapted from a lecture delivered at Hillsdale College on January 31, 2011, during a conference co-sponsored by the Center for Constructive Alternatives and the Ludwig von Mises Lecture Series.

BOEING IS A GREAT AMERICAN COMPANY. Recently it has built a second production line—its other is in Washington State—in South Carolina for its 787 Dreamliner airplane, creating 1,000 jobs there so far. Who knows what factors led to its decision to do this? As with all such business decisions, there were many. But the National Labor Relations Board (NLRB)—a five-member agency created in 1935 by the Wagner Act (about which I will speak momentarily)—has taken exception to this decision, ultimately based on the fact that South Carolina is a right-to-work state. That is, South Carolina, like 21 other states today, protects a worker’s right not only to join a union, but also to make the choice not to join or financially support a union. Washington State does not. The general counsel of the NLRB, on behalf of the International Association of Machinists union, has issued a complaint against Boeing, which, if successful, would require it to move its South Carolina operation back to Washington State. This would represent an unprecedented act of intervention by the federal government that appears, on its face, un-American. But it is an act long in the making, and boils down to a fundamental misunderstanding of freedom.

Where does this story begin?

The Wagner Act and Taft-Hartley

In 1935, Congress passed and President Franklin Roosevelt signed into law the National Labor Relations Act (NLRA), commonly referred to as the Wagner Act after its Senate sponsor, New York Democrat Robert Wagner. Section 7 of the Wagner Act states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Union officials such as William Green, president of the American Federation of Labor (AFL), and John L. Lewis, principal founder of the Congress of Industrial Organizations (CIO), hailed this legislation at the time as the “Magna Carta of Labor.” But in fact it was far from a charter of liberty for working Americans.

Section 8(3) of the Wagner Act allowed for “agreements” between employers and officers of a union requiring union membership “as a condition of employment” if the union was certified or recognized as the employees’ “exclusive” bargaining agent on matters of pay, benefits, and work rules. On its face, this violates the clear principle that the freedom to associate necessarily includes the freedom not to associate. In other words, the Wagner Act didn’t protect the freedom of workers because it didn’t allow for them to decide against union membership. To be sure, the Wagner Act left states the prerogative to protect employees from compulsory union membership. But federal law was decidedly one-sided: Firing or refusing to hire a worker because he or she had joined a union was a federal crime, whereas firing or refusing to hire a worker for not joining a union with “exclusive” bargaining privileges was federally protected. The National Labor Relations Board was created by the Wagner Act to enforce these policies.

During World War II, FDR’s War Labor Board aggressively promoted compulsory union membership. By the end of the war, the vast majority of unionized workers in America were covered by contracts requiring them to belong to a union in order to keep their jobs. But Americans were coming to see compulsory union membership—euphemistically referred to as “union security”—as a violation of the freedom of association. Furthermore, the nonchalance with which union bosses like John L. Lewis paralyzed the economy by calling employees out on strike in 1946 hardened public support for the right to work as opposed to compulsory unionism. As Gilbert J. Gall, a staunch proponent of the latter, acknowledged in a monograph chronicling legislative battles over this issue from the 1940s on, “the huge post-war strike wave and other problems of reconversion gave an added impetus to right-to-work proposals.”

When dozens of senators and congressmen who backed compulsory unionism were ousted in the 1946 election, the new Republican leaders of Congress had a clear opportunity to curb the legal power of union bosses to force workers to join unions. Instead, they opted for a compromise that they thought would have enough congressional support to override a presidential veto by President Truman. Thus Section 7 of the revised National Labor Relations Act of 1947—commonly referred to as the Taft-Hartley Act—only appears at first to represent an improvement over Section 7 of the Wagner Act. It begins:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any and all such activities. . . .

Had this sentence ended there, forced union membership would have been prohibited, and at the same time voluntary union membership would have remained protected. Unfortunately, the sentence continued:

...except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.

This qualification, placing federal policy firmly on the side of compulsory union membership, left workers little better off than they were under the Wagner Act. Elsewhere, Taft-Hartley did, for the most part, prohibit “closed shop” arrangements that forced workers to join a union before being hired. But they could still be forced to join, on threat of being fired, within a few weeks after starting on the job.

Boeing’s Interest, and Ours

It cannot be overemphasized that compulsory unionism violates the first principle of the original labor union movement in America. Samuel Gompers, founder and first president of the AFL, wrote that the labor movement was “based upon the recognition of the sovereignty of the worker.” Officers of the AFL, he explained in the American Federationist, can “suggest” or “recommend,” but they “cannot command one man in America to do anything.” He continued: “Under no circumstances can they say, ‘you must do so and so, or, ‘you must desist from doing so and so.’” In a series of Federationist editorials published during World War I, Gompers opposed various government mandate measures being considered in the capitals of industrial states like Massachusetts and New York that would have mandated certain provisions for manual laborers and other select groups of workers:

The workers of America adhere to voluntary institutions in preference to compulsory systems which are held to be not only impractical but a menace to their rights, welfare and their liberty.

This argument applies as much to compulsory unionism—or “union security”—as to the opposite idea that unions should be prohibited. And in a December 1918 address before the Council on Foreign Relations, Gompers made this point explicitly:

There may be here and there a worker who for certain reasons unexplainable to us does not join a union of labor. This is his right no matter how morally wrong he may be. It is his legal right and no one can dare question his exercise of that legal right.

Compare Gompers’s traditional American view of freedom to the contemptuous view toward workers of labor leaders today. Here is United Food and Commercial Workers union strategist Joe Crump advising union organizers in a 1991 trade journal article: “Employees are complex and unpredictable. Employers are simple and predictable. Organize employers, not employees.” And in 2005, Mike Fishman, head of the Service Employees International Union, was even more blunt. When it comes to union organizing campaigns, he told the Wall Street Journal, “We don’t do elections.”

Under a decades-old political compromise, federal labor policies promoting compulsory unionism persist side by side with the ability of states to curb such compulsion with right-to-work laws. So far, as I said, 22 states have done so. And when we compare and contrast the economic performance in these 22 states against the others, we find interesting things. For example, from 1999 to 2009 (the last such year for which data are available), the aggregate real all-industry GDP of the 22 right-to-work states grew by 24.2 percent, nearly 40 percent more than the gain registered by the other 28 states as a group.

Even more dramatic is the contrast if we look at personal income growth. From 2000 to 2010, real personal incomes grew by an average of 24.3 percent in the 22 right-to-work states, more than double the rate for the other 28 as a group. But the strongest indicator is the migration of young adults. In 2009, there were 20 percent more 25- to 34-year-olds in right-to-work states than in 1999. In the compulsory union states, the increase was only 3.3 percent—barely one-sixth as much.

In this context, the decision by Boeing to open a plant in South Carolina may be not only in its own best interest, but in ours as well. So in whose interest is the National Labor Relations Board acting? And more importantly, with a view to what understanding of freedom?

Public Sector Unionism

As more and more workers and businesses have obtained refuge from compulsory unionism in right-to-work states in recent decades, the rationality of the free market has been showing itself. But the public sector is another and a grimmer story.

The National Labor Relations Act affects only private-sector workers. Since the 1960s, however, 21 states have enacted laws authorizing the collection of forced union dues from at least some state and local public employees. More than a dozen additional states have granted union officials the monopoly power to speak for all government workers whether they consent to this or not. Thus today, government workers are more than five times as likely to be unionized as private sector workers. This represents a great danger for taxpayers and consumers of government services. For as Victor Gotbaum, head of the Manhattan-based District 37 of the American Federation of State, County and Municipal Employees union, said 36 years ago: “We have the ability, in a sense, to elect our own boss.”

How this works is simple, and explains the inordinate power of union officials in so many states that have not adopted right-to-work laws. Union officials funnel a huge portion of the compulsory dues and fees they collect into efforts to influence the outcomes of elections. In return, elected officials are afraid to anger them even in the face of financial crisis. This explains why states with the heaviest tax burdens and the greatest long-term fiscal imbalances (in many cases due to bloated public employee pension funds) are those with the most unionized government workforces. California, Illinois, Massachusetts, Michigan, Nevada, New Jersey, New York, Ohio and Wisconsin represent the worst default risks among the 50 states. In 2010, an average of 59.2 percent of the public employees in these nine worst default-risk states were unionized, 19.2 percentage points higher than the national average of 40 percent. All of these states except Nevada authorize compulsory union dues and fees in the public sector.

* * *

Fortunately, there are signs that taxpayers are recognizing the negative consequences of compulsory unionism in the public sector. Just this March, legislatures in Wisconsin and Ohio revoked compulsory powers of government union bosses, and similar efforts are underway in several other states. Furthermore, the NLRB’s blatantly political and un-constitutional power play with regard to Boeing’s South Carolina production line is sure to strike fair-minded Americans as beyond the pale. Now more than ever, it is time to push home the point that all American workers in all 50 states should be granted the full freedom of association—which includes the freedom not to associate—in the area of union membership.

MARK MIX is president of the National Right to Work Legal Defense Foundation, as well as of the National Right to Work Committee, a 2.2 million member public policy organization. He holds a B.A. in finance from James Madison University and an associate’s degree in marketing from the State University of New York. His writings have appeared in such newspapers and magazines as the Wall Street Journal, the Washington Times, the Detroit Free Press, the San Antonio Express-News, the Orange County Register and National Review.

Copyright © 2010 Hillsdale College. The opinions expressed in Imprimis are not necessarily the views of Hillsdale College. “Reprinted by permission from Imprimis, a publication of Hillsdale College.” Read More......

Excepts from 'Outline of a Platform for Constitutional Government'

By Larry P. Arnn
President, Hillsdale College
At the dedication of Hillsdale College’s Allen P. Kirby Center for Constitutional Studies in Washington, D.C.

IMPRIMIS, a publication of Hillsdale College, November 2010 - In the previous greatest crisis of the Constitution, when our College was very young, we also served in its defense. In the summer of 1854, with the extension of slavery not just a threat but a reality, the people of Michigan were invited to join together “to protect our liberty from being overthrown and downtrodden.” The result of that meeting was the birth of the Republican Party on July 6 of that year, in Jackson, Michigan, just over 30 miles from the Hillsdale campus. Several College faculty and administration members were leaders of this movement. One of them, Austin Blair, later governor of Michigan, was chosen to be on the committee on resolutions. The first president of Hillsdale College, later lieutenant governor of Michigan, also played a leading role. Among the resolves of that Michigan gathering was the following:

That slavery is a violation of the rights of man as man; that the law of nature, which is the law of liberty, gives to no man rights superior to those of another; that God and nature have secured to each individual the inalienable right of equality, any violation of which must be the result of superior force . . . .

Remembering this history, we have set our minds, in beginning our work at the Kirby Center, to thinking about what a platform for constitutional government today might look like. As was the case in 1854, the specifics of what to do amidst changing circumstances, and in light of the need to enlist the agreement of the American majority, are complex and difficult and require statesmanship. Solving our deepest problems will take years, and will require imaginative policies not yet contrived. But the general principles and goals seem to us clear. They were laid out for us by our fathers. We have set our hands to begin writing them down in the document that follows.

Outline of a Platform for Constitutional Government

On June 17, 1858, Abraham Lincoln said in his House Divided Speech, “If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it.” His analysis was founded upon a profound contemplation of the Declaration of Independence and its embodiment in the Constitution of the United States. It issued in a set of proposals designed first to limit and then to extinguish slavery by strictly constitutional means.

We require a similar kind of analysis today. Our most difficult policy issues are embedded in a vast administrative state that is built without regard for the principles of the Declaration in their true meaning, or for the proper constitutional operation of government.

The Declaration of Independence articulates the place of man in nature: below God and above the beasts. It says that we may be governed only by our consent. Woodrow Wilson and the founders of modern liberalism called these doctrines “obsolete.” They argued that we live now in the age of progress, and that government must be an engine of that progress. This idea changes how we view not only the purpose of government, but also the rights of its citizens.

Franklin Roosevelt added economic security to the natural rights, as the Declaration of Independence states, of “life, liberty, and the pursuit of happiness.” Government grew as a result, especially under Lyndon Johnson and Richard Nixon. And it continues to grow—all in the name of progress. Indeed, the current administration is the most aggressive proponent of the doctrines of Progressivism since they were first introduced.

Under the influence of these new doctrines, the government has grown to be, in simple quantitative terms, the largest single force by far in the land. It now consumes nearly half of all we produce, and it is soon to accumulate a public debt as a percentage of Gross Domestic Product equal to the largest in our history, matching our debt level at the end of the Second World War. This debt leaves us vulnerable to every mischance that may come upon the nation from abroad or at home. The burden of it stifles enterprise and closes opportunity for all but the well connected.

As the government has grown, it has become a powerful interest in the everyday affairs of the nation. Increasingly, bureaucracy is a factor in every operation our citizens undertake. In the management of our businesses, in the accomplishment of our jobs, in the rearing of our children, and in the very caring for our own bodies, there now are rules too numerous to count. Ominously, these rules now seek even to intrude into the electoral processes by which our free people choose their representatives.

These rules originate in laws passed by Congress that are much too long for anyone to read. After these laws are passed, they are enhanced, expanded, interpreted, and complicated by regulatory agencies. We forget therefore the words of the Father of the Constitution, James Madison:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

All these developments, so long entrenched in our politics, are presented by their proponents as a natural extension of the original principles and the original institutions of the nation. Doubtless those who argue this also believe it, but it cannot possibly be true.

Gone now is the caution about human nature that recognizes that human beings must live under law in order to protect their rights, and that those who make and enforce the law are no more likely to be perfect—or less likely to violate the rights of their fellow citizens—than others. The current tendency toward unlimited government undermines the foundation of constitutional rule in our country. That foundation is stated by Madison in a few words: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Men must be governed because they are imperfect—less than God, less than angels. But then so too are those who make and enforce the law imperfect. They also have interests. Therefore government must have strong powers, but these powers must be limited and checked.

If this is where we are, then it is easy to see “what to do, and how to do it.” We must return to the principles and institutions of the founding of our country. We must revive constitutional rule. To do so, we propose the following four pillars of constitutional government.

1. Protecting the equal and inalienable rights of individuals is government’s primary responsibility.

1. By rights, America’s founders meant those things naturally belonging to us, and those things earned by our own labor. The protection of rights understood in this way breeds harmony in the society, because each of us claims for himself what he can also give to all others. We may all speak, worship, assemble, and keep our justly earned property without taking from another.
   
2. Each branch of government is subservient to the Constitution.
   
3. The federal government has the constitutional duty to ensure that each state maintains a republican form of government. This obligation is strengthened and clarified in the 14th Amendment. It must ensure that no state infringes on the rights or the “privileges or immunities” of citizens. Yet it must also recognize the constitutional standing of state governments.
   
4. The duties of Congress are clearly delineated in Article I, Section 8 of the Constitution. It should do no more, lest liberty be endangered. It should do no less, else anarchy ensue.

2. Economic liberty is inversely proportional to governmental intrusion in the lives of citizens.

The platform upon which Abraham Lincoln was elected president stated “that the people justly view with alarm the reckless extravagance which pervades every department of the Federal Government.” It urged “a return to rigid economy and accountability” that “is indispensable to arrest the systematic plunder of the public treasury by favorite partisans. . . .” Likewise today:

1. American economic recovery requires that we liberate the American people to work, to save and to invest, secure in their property, confident about the dollar as a store of value, and sure that the government will be an impartial enforcer of the law and of contracts.
   
2. In all administration of federal programs we must demand the utmost economy, and that every care be taken to avoid further growth and sprawl in the federal administrative establishment.
   
3. Our massive public investment in entitlement programs must be protected through privatization programs, which should utilize the real practices of insurance against catastrophe and of savings for future needs. In this process our investment must be safeguarded from loss, as the government must keep its contracts.
   
4. Sound money is among the most sacred of the federal government’s responsibilities, and price stability should be the aim of monetary policy.
   
5. The federal government must not subsidize corporations or individuals in its tax code or any other policy.
   
6. Philanthropy is the natural outgrowth of American principles and institutions. It should be encouraged and relied upon, along with local and state government, as the great engine of social reform and the amelioration of distress.

3. To accomplish its primary duty of protecting individual liberty, the federal government must uphold national security.

1. National defense has been for most of American history the chief undertaking of the government under the Constitution. It has been supplanted by the federal entitlement and regulatory state. This reversal of priority hampers growth at home, deprives the American people of scope for self-government, and undermines the defense of the nation.
   
2. We should pursue relentlessly every form of defense against foreign threats. Especially is this true in the case of attack by weapons of mass destruction. Therefore missile defense and a vigorous policy to combat Islamic and other forms of terrorism are urgently required.
   
3. We must overcome all international and domestic efforts to undermine American sovereignty, including those mounted through the United Nations and other international organizations, or through efforts to impose new treaties.
   
4. Promotion of democracy and defense of innocents abroad should be undertaken only in keeping with the national interest.

4. The restoration of a high standard of public and private morality is essential to the revival of constitutionalism. As the Northwest Ordinance of 1787 states, “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” The Constitution itself says nothing about education, for the same reason it says nothing about families or marriage or child-rearing: the federal government should not control or regulate these things. Parents and teachers, not the federal government, teach children. What they teach them matters most, for without proper moral and civic education a republican form of government will falter. With it, and with a strong defense of our right to religious liberty, republican government can flourish.

We close again with the words of Lincoln, from the same speech with which we began. Quoting the Bible, Lincoln said that “a house divided against itself cannot stand.” We shall be governed either by ourselves, under a Constitution, or else we shall be governed by the new kind of master invented in our day, the bureaucrat, and by the impenetrable web of rules that he fabricates and enforces.

Let us stand together against the rule of bureaucracy, and for liberty and the Constitution.

Copyright © 2010 Hillsdale College. The opinions expressed in Imprimis are not necessarily the views of Hillsdale College. Permission to reprint in whole or in part is hereby granted, provided the following credit line is used: “Reprinted by permission from Imprimis, a publication of Hillsdale College.” Read More......

Imprimis, Dec. 2009

IMPRIMIS, 12/2009 by Larry P. Arnn, President, Hillsdale College - Education, Economics, and Self-Government

Highly recommended article! --bc Read More......