Labor Emancipation No Imposition on States’ Rights

Fascist Italy Was ‘The Only Significant Industrialized Industrialized Country Before America’ to Authorize So-Called ‘Exclusive’ Union Representation


July 6, 2012

‘Freedom Rests on Choice, and Where Choice Is Denied Freedom Is Destroyed as Well’

(Download .pdf file click here) S.2173 and H.R.2040, the National Right to Work Act, would not add a single word to federal labor law.  This legislation would simply repeal all sections of the National Labor Relations Act (NLRA) sanctioning the seizure of union dues, which now prevails in the 27 states that have not enacted Right to Work laws.

In addition, S.2173 and H.R.2040 would extend Right to Work protection to rail and airline workers in all 50 states, since the Railway Labor Act (RLA) governing their relations with management does not allow the protection of state Right to Work laws.  Passage of S.2173/H.R.2040 would thus demolish one of the twin pillars of the federal mandate of compulsory unionism — the strong-arming of workers to pay for union “representation” for which they haven’t asked.

Until 1935, union officials claiming to represent any employees in a given workplace were bound by common law to show that each employee had explicitly consented to such representation.[1]  Too often for the convenience of union officials, the courts found no evidence of such employee consent and refused to recognize the union’s bargaining authority.[2]

In 1935, American Federation of Labor President William Green and other top union officials lobbied furiously for the power to force all employees in a workplace to accept the union as their bargaining agent. With the signing of the NLRA by President Franklin D. Roosevelt later that year, the union hierarchy got its wish in Section 9(a), which states:

Representatives designated or selected for the purposes of collective bargaining by the majority of employees in a unit appropriate for such purposes, shall be the exclusive representative of all employees . . . for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . . .

Thus, the U.S. Congress fashioned a legal framework within which union officials could impose terms and conditions of employment on employees who never asked the union to represent them.  What the Congress called “exclusive representation” was for dissenting workers “monopoly bargaining.”

From legal action to the buying of property and other contractual relations, there is a time-honored respect stretching back to English common law for the right of a “principal” to choose his own “agent” to represent him. Only union officials have managed to carve out a license to act as “agent” for millions of working Americans against their express wishes.

But the congressionally-sanctioned shakedown of employees’ rights doesn’t end there.

Once union officials are certified by the federal government as monopoly bargaining agents, employers must bargain with them in good faith. And certain issues are deemed “mandatory,” that is, subjects about which the employer must negotiate if union officials demand that they do.

Under Federal Law, Employers Are Required to Put Employees’ Right To Work on the Bargaining Table

Under the NLRA, as interpreted by the U.S. Supreme Court, the demand that employees pay forced union dues is a mandatory subject about which the employer must bargain in good faith.[3] Refusing to negotiate over the union hierarchy’s demand for forced dues subjects the employer to a costly “unfair labor practice” charge.  Not surprisingly, the best defense against unfair labor practice charges is a clear record of the employer’s willingness to compromise with the union on such “mandatory” bargaining issues.

In light of this government pressure, it should come as no surprise that 82% of all private sector employees covered by a union contract are required by that contract to pay union dues as a condition of employment.[4]  That adds up to 6.54 million private sector workers compelled to pay union dues in 2011.

It cannot be emphasized enough that this process is only possible when a union has been certified by the federal government as an “exclusive representative.”  Without that government certification, union officials would have no power apart from their personal persuasiveness to obtain the payment of union dues.

Thus, while employers and unions negotiate “contracts” requiring employees to pay union dues, such agreements hardly deserve to be called contracts, a term people typically use to refer to private voluntary agreements among individuals.  Such “contracts” negotiated under the federal regime of mandatory bargaining make conscription into union ranks a federal mandate.

This federal encouragement of monopoly unionism is so extreme that, as the late pro-union academic Clyde Summers once wrote: “A union, in bargaining . . . negotiates a contract which becomes the basic law of the industrial community.  In making these laws, the union acts as the worker’s economic legislature. . . . It is the worker’s policeman and judge. . . . The union’s power is the power to govern.”[5]

It is astounding that federal “policy concerning labor unions has, in little more than a century, moved from one extreme to the” opposite one just described here.  As Friedrich Hayek continued, “From a state in which little the unions could do was legal if they were not prohibited altogether, we have now reached a state where they have become uniquely privileged institutions to which the general rules of law do not apply.”[6]

Or as Harvard Law School dean Roscoe Pound once expressed it, union officials are now legally free “to commit wrongs to person and property, to deprive individuals of the means of earning a livelihood, . . . things which no one else can do with impunity.”[7]

With such a state of immunity enjoyed by union officials today, it is hard to imagine the legal environment in which voluntary unions were floundering at the turn of the 20th century.  Pound readily acknowledged that “the grievances of the workingman had become numerous and very real . . . . Enormously increased danger to life and limb in industrial employment [was] inadequately secured against by the common law as administered by the courts . . . .  [T]raditional ultratechnical judicial procedure resulted in a legal system which put the workers in a condition amounting almost to subjection.”[8]

Among the turn-of-the-century actions targeted at unions and almost universally considered unfair today were “yellow-dog” contracts requiring that employees not join unions at the risk of firing. By 1932, a consensus against this attempt to dictate the allegiances of employees resulted in congressional passage of the Norris-LaGuardia Act.  Signed into law by President Herbert Hoover, it declared such contracts to be contrary to public policy and unenforceable in federal courts.

Hardly anyone in public life today would suggest that such contracts are consistent with individual liberty and should be legal. This consensus includes the U.S. Supreme Court, which ruled in 1945 that union organizing is protected by the First Amendment’s guarantee of freedom of association. In this case, the Court reversed the conviction of an organizer for the United Auto Workers for refusing to comply with a Texas law requiring to union organizers to be licensed. In the majority opinion, the Court held:

It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. . . . This conjunction of liberties is not peculiar to religious activities and institutions alone. . . .  The grievances for redress of which the right of petition was insured, and with it the right of assembly, are not solely religious or political ones.[9]

‘The Right Not to Join a Union Is a Necessary Corollary of the Right to Join’

Commenting on this case, Sen. Everett Dirksen wrote:

Having thus recognized the right to organize workers into unions as part of the protected freedom of association under the First Amendment, it must follow that the right not to join a union is a necessary corollary of the right to join, for without a right not to join there can be no such thing as a right to join.[10]

However, 11 years after vindicating the First Amendment rights of union organizers, the Supreme Court looked the other way when the constitutionality of forcing workers to join unions:

Congress has authority to adopt all appropriate measures to “facilitate the amicable settlement of disputes which threaten the service of the necessary agencies of interstate transportation.” . . .  These measures include provisions that will encourage the settlement of disputes “by inducing collective bargaining with the true representative of the employees . . . .”  Industrial peace along the arteries of commerce is a legitimate objective; and Congress has a great deal of latitude in choosing the methods by which it is to be obtained.  The choice by the Congress of the union shop as a stabilizing force seems to us to be an allowable one.[11]

In short, it seemed to the High Court that, for the sake of “industrial peace,” it was permissible in this free society to force employees to “associate with unions” through the extraction of forced dues from their paychecks.

Of course, as Dirksen pointed out, the High Court well understood the importance of the “right to work” in a less controversial setting.

In 1915, the High Court held that no state could deny the right to work for otherwise lawful residents, simply because they were not native-born.  Justice Charles Evan Hughes explained the justices’ reasoning in the majority opinion:  “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] [A]mendment to secure.”[12]

Sen. Dirksen, who led the successful fight to preserve the authority of states to pass Right to Work laws in 1965 and ’66, found it “curious that we here in the United States who are so preoccupied and concerned with individual liberties have so long tolerated such a flagrant abuse of individual liberty as compulsory unionism.”[13]

Dirksen was probably realistic enough to know that this incongruity had more to do with the fear of organized labor’s forced-dues-fed political machine than any principle.

Today, opponents of S.2173/H.R.2040 should make it clear whether they are willing to apply the same principles of liberty to non-union workers that they would surely apply to union workers, or whether they will persist in perpetuating the federal mandate of forced-dues payments.

The offensiveness of this regime of federal labor law is even more rank when you compare it to the NLRA’s closest foreign precursor — the Italy of Benito Mussolini.

Fascist Italy Was ‘The Only Significant Industrialized Industrialized Country Before America’ to Authorize So-Called ‘Exclusive’ Union Representation

This close relation has been uncovered by labor scholar Howard Dickman in his landmark study, Industrial Democracy in America. Mussolini seized absolute power in 1922.  He then began a series of changes in Italian labor law culminating with the Fascist Labor Charter of 1927.  In this charter, Dickman writes, Fascist Italy became “the only significant industrialized country before America to establish the principle of exclusive representation in its labor law.”[14]

Under the charter, unions were referred to as “syndicates,” and according to the charter, “only the legally recognized syndicate, under the control of the State, has the right to legally represent the whole category of employers or workers for which it is constituted.”[15]  In such a regime, the right of the individual employee to define his own contractual relations with his employer, or any agents he might choose to represent him, was not acknowledged.

Arguing against more than one union representing employees in the same workplace, for instance, the first Fascist Minister of Justice contended that “one syndicate competes with the other at the expense of the workers collectively.”[16]  In fascist Italy, the interests of individual workers might as well not have existed.

Mussolini eventually fell from power and his fascist regime was overthrown.  But the principle enunciated by the Fascist Justice Minister found its echo in the United States.  In 1944, the U.S. Supreme Court ruled that even when employees repudiated their union and negotiated directly with their employer, that employer was still guilty of an unfair labor practice under the NLRA.[17]

In addition to the monopoly bargaining privilege, the Fascist Labor Charter also authorized “the legally recognized syndicate” to “impose contributions” on those employees forced to accept the syndicate’s “representation.”[18]  In another eerie parallel to federal labor law, Italian workers did not have to formally “join” the syndicate.

But armed with the power to bargain on behalf of all employees in a given workplace, the syndicates could control the terms and conditions of employment in entire industries.  Then the syndicates could claim that those employees who had not asked for their representation were, nonetheless, obligated to “contribute to the syndical funds” in compensation for the supposed “benefits” negotiated by the syndicate.[19]

This parallels a series of opinions by the U.S. Supreme Court that employees in non-Right to Work states cannot be forced to be full-dues paying members, but can be forced to accept the “financial core” obligation to pay dues for “collective bargaining.”[20]

National Right to Work Act Would Mark a Significant Step in the Right Direction For U.S. Employees

Thus, we have the twin pillars of compulsory unionism, monopoly bargaining and forced dues. Both rest on a federal law which has replaced a tradition of voluntarism with a regime which forces employees to accept union “representation,” then forces them to pay for “representation” they never requested.

S.2173/H.R.2040 would knock down one of the two pillars by striking all language authorizing the payment of forced dues from the NLRA.  With no federal sanction, employers would not have to give away their employees’ freedom of association in order to prove they had bargained in “good faith.”

S.2173/H.R.2040 would also undo one of the most cynical exercises of legislative deception in all of American law.  On the one hand, Section 7 of the NLRA claims that employees shall have the right to self-organization to form, join, or assist labor organizations, . . . and shall also have the right to refrain from any or all such activities . . . (emphasis added).” What could be fairer than that?

But the sentence doesn’t end there. According to the NLRA, employees have the “right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment (emphasis added).”

The National Right to Work Act would delete that exception from Section 7.  The Act would also amend Section 8(a) of the NLRA by removing a similar exception from the clause making it an unfair labor practice for an employer “by discrimination in regard to hire or tenure of employment . . . to encourage or discourage membership in any labor organization.”

In short, the National Right to Work Act would counter the federal policy of monopoly bargaining with one of free association.  In all 50 states, employees could still be forced to accept union “representation.”  But with passage of S.2173/H.R.2040, the “right to refrain” would no longer be a gross exercise in cynicism.  Union officials could still impose contracts on workers who never asked the union to negotiate for them.  But at least, those employees would not suffer the indignity of having to pay for “representation” they never requested.

Admittedly, the National Right to Work Act would leave one of the twin pillars of compulsory unionism standing.  Employees nationwide could still be forced to acquiesce in union contracts to which they never assented.

But at least in the 23 Right to Work states, those employees are free to decide for themselves whether the union deserves their financial support.  Those who, in the name of “states’ rights,” would perpetuate the federal mandate of forced-dues payments in the other 27 states, and effectively condemn workers in those states to a legal regime little different from that of Fascist Italy.

# # #

Nothing here is to be construed as an attempt to aid or hinder the passage of any bill before Congress or any state legislature.

[1]McCoy v. St. Joseph Belt Ry. Co., 77 S.W. 2d 175, 179 (Mo. 1934); Yazoo & M.V.R. Co. v. Mitchell, 161 So. 860, 862 (Miss., 1935).

[2]Bumetta v. Marceline Coal Co, 79 S.W. 136 (Mo., 1904); W.A. Snow Iron Works, Inc. v. Chadwick, 116 N.E. 801 (Mass., 1917); West v. Baltimore & O.R. Co., 137 S.E. 654(W. Va., 1927); Panhandle & SE Ry. Co. v. Wilson, 55 S.W. 2d 216 (Tex. Civ. App., 1932); Hudson v. Cincinnati, N.O. & T.P Ry. Co., 154 S.W. 47 (Ky., 1913).

[3]NLRB v. Borg-Warner Corp., 356 U.S. at 342 (1958).

[4]Basic Patterns in Union Contracts, 14th Ed., (Bureau of National Affairs, Washington, D.C., 1995) p. 97.

[5]Summers, Clyde, “Union Power and Workers’ Rights,” 49 Michigan Law Review 805, 811, 815-816 (1951).

[6]Hayek, Friedrich A., The Constitution of Liberty, (University of Chicago Press, Chicago, 1960) p. 267.

[7]Pound, Roscoe, “Legal Immunities of Labor Unions,” Labor Unions and Public Policy (American Enterprise Institute, Washington, D.C., 1958) p. 145.

[8]Pound, p. 123

[9]Thomas v. Collins, 323 U.S. 516 at 530 (1945).

[10]Dirksen, Everett, “Individual Freedom Versus Compulsory Unionism: A Constitutional Problem,” De Paul Law Review, Vol. XV, No. 2, Spring—Summer 1996, p.  265.

[11]Railway Employees’ Dept. v.. Hanson, 351 U.S. 225 at 233 (1956) (Emphasis added).

[12]Truax v. Raich, 239 U.S. 33 at 41 (1915).

[13]Dirksen, p. 274.

[14]Dickman, Howard, Industrial Democracy in America: Ideological Origins of National Labor Relations Policy, (Open Court Pub., La Salle, Ill., 1987) p. 214.

[15]Quoted in Dickman, p. 214.

[16]Alfredo Rocco, quoted in Dickman, p. 215.

[17]Medo Photo Supply Corp. v. NLRB, 321 U.S., 678 (1944).

[18]Quoted in Dickman, p. 214.

[19]Rocco, quoted in Dickman, p. 215.

[20]NLRB v. General Motors, 373 U.S. 734, 742 (1963); CWA v. Beck, 108 S Ct., 2648 (1988).