Compulsory Unionism as a Fraternal Conceit?
Free Choice for Workers: A History of the Right to Work Movement
Harry G. Hutchison |
Posted Monday, December 4, 2006
7 U.C. Davis Bus. L.J. 3 (2006)

In the flaring parks, in the taverns, in the hushed academies, your murmur will applaud the wisdom of a thousand quacks. For theirs is the kingdom.[1]

Introduction

One candid reporter offers this assessment, "I honestly believe it, and I'm ashamed to say it: the Labor movement is on life support."[2] He later notes, "Where the hell is Moses when you need him? I mean parting the Red Sea is nothing compared to the challenges we face as a [labor] movement."[3] This bracing appraisal corroborates evidence pointing to a steady decline in the unionized share of the U.S. work force, which comprised 7.9% of the private sector in 2004.[4] After experiencing a steady increase in both wages and productivity over several decades, it appears that only thirty-five percent of non-unionized workers are interested in unionizing their workplace and only sixteen percent would definitely vote to unionize.[5]

Membership woes[6] generate growing fears of looming union irrelevance despite extensive counterfactual evidence substantiating persistent growth in union political influence[7] and economic wealth.[8] Notwithstanding the counterfactuals, academic observers offer similar pessimism,[9] implying that many of the hopeful proposals for labor"reform" are nothing more than attempts to reshuffle the deck chairs on the Titanic.[10] Such despondency has led some labor union proponents to contemplate the abolition of the National Labor Relations Act (NLRA).[11] There appears to be gloom regarding labor's future, and this gloominess is attached to the expectant belief that unions exemplify and secure communal progress. Labor's current difficulties correspond with despair over the failure of the progressive agenda and signify that it is time to start over,[12] as the economic[13] and political[14] conditions which have enabled the NLRA to succeed in the past have come to an end.[15]

From a global perspective, these dire developments were foreseeable.[16] More than 50 years ago, Jacques Ellul saw unions as largely technical entities which predictably trapped workers in compulsory organizations that diminished both their personalities and independence, despite the earlier hope by some that unions would act as a revolutionary force that would free workers from the bureaucratic power wielded by large organizations.[17] Ellul insists that labor unions are best understood as institutions led by hierarchs who have an inadequate understanding of the unorganized workforce and the necessity of human liberty.[18] Ellul's verdict, coupled with data on union density rates and other evidence justifying the labor movement's melancholy, substantiates Epstein's forecast that private sector unions will continue to lose ground because they no longer provide their membership with benefits that outweigh their costs.[19]

With the publication of Free Choice for Workers: a History of the Right to Work Movement, George Leef reexamines labor unions and contests the justification offered in support of America's labor laws. Leef's perspective delegitimizes compulsory unionism on ethical and empirical grounds. "One dominant feature of this system is the necessary abrogation of the contract at will," notes Richard Epstein, "for an employer is not allowed to dismiss any worker for engaging in union activities or expressing union sympathies."[20] Such arrangements are customarily attached to progressive principles and ideals, and are "typically justified by an appeal to ideas of economic duress, employer exploitation, and inequality of bargaining power."[21] Demonstrating that statutory compulsion fails to lead society on a pathway to progress, the book reveals that the road to serfdom can often be paved by bureaucratic regulation.[22] Carefully examining history and contemporary events, Leef contributes to the richly textured debate about the normative role of unions in a putatively free society. Although F.A. Hayek accurately notes that "[c]ontemporary events differ from history in that we do not know the results they will produce,"[23] he also observes that we can discern tendencies.[24] Leef's book provides a historical appraisal that helps society learn from the past,[25] and explicates the capacity of principled ideals, embedded in fearless individuals, to trump historical tendencies favoring privileged and entrenched autocracies. George Leef's reassessment offers an essentially contractarian and liberal model of labor relations that focuses on a vision of individual rights which have a clearly defined, independent existence predating society.[26] From this perspective, Leef specifies liberty as a desirable good in and of itself, which is then placed in harm's way by progressive ideals and constructs. In the essay that follows, I offer neither a meta-narrative on contractarianism nor a comprehensive refutation of the criticism of the contractarian model. Nevertheless, I contend that Leef supplies a highly pragmatic and strongly theoretical (if incomplete) argument against the tendency to see government as the solution to the "labor problem."

In Part I, I consider the origin of the Right to Work law movement and Right to Work laws, as a response to the establishment of the Railway Labor Act, the shrinkage of the common law, the creation of the National Labor Relations Act, and other labor laws. While human freedom and negative liberty may constitute a first-order good, it is possible that the extent of freedom and liberty (including freedom of speech and association) remains a contingent, not absolute, good. The contingency of the good depends on whether there is some principled basis for diminishing the good itself.[27]

In Part II, I offer analysis concentrating on the eternal conflict between human freedom and government intervention aimed at ameliorating inequality, income disparity and human suffering. While historically this quarrel has been attached to notions of justice that originated with Socrates, and has continued until the time of John Stuart Mill and John Rawls, this debate must also consider the purportedly positive benefits associated with industrial peace.[28] George Leef's perspective persuasively argues that the Right to Work movement has contributed to human liberty as well as to the diminishment of the allure of government regulatory power.

I. The Origin of the Right to Work Movement and Right to Work Laws

Free Choice for Workers vindicates the commitment of courageous Americans to certain freedoms, such as freedom of conscience, freedom of association and freedom to say no to groups, values and actions that individuals find incompatible with their own beliefs.[29] Implicit in this understanding of liberty is the notion of freedom from coercion, authoritarianism, violence and intimidation from those who hold contrary views. This understanding can be seen as controversial when the source of coercion is the government itself. Leef further incites controversy when he shows that the source of coercion is not direct government power, but private, putatively voluntary associations of workers that have attained legal rights and privileges.[30] Under federal and various state laws, labor organizations can condition employment on the payment of union dues. Alternatively agency fees and workers are given the stark choice of paying up or losing their job.[31] Since 1955, however, "there has been one organization dedicated to the principle that Americans should not be compelled to support unions and accept their supposed services against their wills,"[32] that organization being the National Right to Work Law Committee (NRWLC) and its progeny.

Free Choice for Workers breathes life into the contention that autocratic labor unions require a dedicated opponent. For example, while working for UPS, Rod Carter declined to participate in a 1997 strike that Teamsters Local 769 and the national Teamsters union called against his employer. "Top union officers ordered all drivers to cease working and support the strike, no matter their personal circumstances."[33] Ignoring threats, he continued to work in order to support his family, which ultimately led to an attack by union militants. Severely punching and beating Carter, union militants stabbed him in the chest with an ice pick several times.[34] How did the United States become a country in which citizens can be beaten as a result of working for a living? George Leef responds to this question by describing the evolution of America's labor cartel. This evolution includes the rejection of the common law and the extension of various privileges and immunities to labor organizations as part of a movement aimed at allowing unions "to be freer of the constraints that bind businessmen and everyone else, thereby allowing unions more latitude to use their aggressive tactics."[35] Essential vehicles for the formation and preservation of labor cartels are statutory rules that: (1) grant unions the right of exclusive representation[36] , (2) allow unions to deploy a selective incentive[37] such as compulsory dues payments in the form of an agency, union or a closed shop and (3) subordinate individual workers' interest to the tyranny of the majority.

Once a union has been certified as the bargaining agent for a group of workers it typically has the power to bind all workers to a contract. Leef argues that this authority grants monopoly status to unions and eliminates the freedom of workers to make their own contracts.[38] This practice operates contrary to the prudential judgment of Justice Brandeis, a long-time supporter of organized labor, supported restrictions on union power.[39] Justice Brandeis stated that, "[t]he union attains success when it reaches the ideal condition and the ideal condition for a union is to be strong and stable, and yet to have in the trade outside of its ranks an appreciable number of men who are non-unionists . . . Such a nucleus of unorganized labor will check oppression by the union as the union checks oppression by the employer."[40] The notion of competition within the labor market sector is consistent with a principled conception of liberty, but is incompatible with America's labor history and labor laws.

A. Transforming the Common Law: American Labor History

Free Choice for Workers examines the creation and implementation of an interventionist and prescriptively collectivist model in American labor relations. Leef argues that "under the common law, there was no need for a special set of rules for labor relations because the law of contract and property rights was sufficient to handle any dispute that arose."[41] Individual workers were "free to join labor organizations and seek to bargain as a group if they wanted to do so,"[42] and employers were permitted to "choose whether or not they would bargain with the representatives of a labor organization."[43] While "union officials had sought preferential laws even before the era of the Great Depression,"[44] the depression triggered numerous proposals aimed at delimiting the common law both inside and outside the labor law arena. Herbert Hoover is frequently referred to as a clumsy laissez-faire proponent who refused to initiate government action needed to revitalize the crumbling economy from 1929 to 1932.[45] In reality, President Hoover was an interventionist who set the stage for even greater government involvement during the Roosevelt administration.[46] He approved the Norris-LaGuardia Act that gave union officials a good deal of what they wanted.[47] The centerpiece of the legislation was its anti-injunction provision.[48] Although some academic observers assert that "injunctions were unfairly suppressing workers in their attempt to improve their conditions . . . the empirical evidence. . . . [shows] that injunctions were seldom issued except where there had been violence associated with a strike."[49] Consistent with that observation, after the passage of the act, "the number of strikes, repeatedly accompanied by violence, doubled from 1932 to 1933 and continued to rise in following years."[50]

Free Choice for Workers provides further evidence that government intervention can backfire. First Franklin Roosevelt was elected with energetic backing from union leaders.[51] Second, Roosevelt's "Brain Trust" consisted of men who were admirers of European collectivism, in which strong unions were regarded as socially beneficial.[52] Members of the "Brain Trust" were captivated by the paradoxical idea that high prices brought about prosperity, and hence believed that high wages would help the economy by giving workers more purchasing power.[53] While Richard Vedder and Lowell Gallaway demonstrate the absurdity of this view,[54] it is unmistakably clear that cartelization of both of business and labor became an accepted article of faith during the Roosevelt period.[55] As Leef puts it, "The year 1934 was marked by numerous violent strikes in which the heads of unions sought to compel management to recognize and deal with them."[56] This effort solidified and accelerated measures aimed at bringing cartelization to the labor market. Disruption in an already weak economy provided an attractive "industrial peace" rationale for the passage of new labor laws that culminated in the enactment of the Wagner Act of 1935.[57] Explicitly attached to these laws were the contestable claims that the "inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions."[58] Proponents of the NLRA also claimed that industrial peace would be advanced through compulsory union activity. Leef exposes the transformation of "industrial peace" reasoning into constitutional cover in the form of congressional power to regulate interstate commerce within the meaning of Article I, Section 8 of the United States Constitution.[59]

The NLRA subordinated workers' freedom to choose their own employment arrangements to the insistent demand of union hierarchs for "union security."[60] The Wagner Act, while proclaiming the employees right to self-organization, illogically "gave absolutely no legal protection to workers to refrain from participating in labor unions or collective bargaining."[61] The Wagner Act also granted unions exclusive representation[62], because it provided them with a monopoly status and shredded "another basic American liberty - the freedom to make your own contracts."[63] Although "[m]onopolies rarely last very long unless government intervenes to prevent competition with them,"[64] the Wagner Act authorized labor organizations to treat workers as a captive market to be exploited[65] to benefit the preferences and self-interest of union hierarchs and outsiders with whom the union leadership has fashioned an ideological bond.[66] In sum, the NLRA contained a number of provisions such as union security provisions, the right to exclusive representation, the absence of effective union democracy as well as the vindication of majoritarianism, that vitiated workers' freedom of association and free speech rights.[67] Furthermore, the United States Supreme Court, far from acting as a guardian of freedom of speech, instead permitted the National Labor Relations Board (NLRB) to enact rules that "stifle[d] real speech by employers."[68] Additionally, the NLRB restricted the property rights of employers through questionable statutory interpretations.[69] Leef adverts to a number of Wagner Act deficiencies that endangered workers' freedom to choose, including the notion that once a union has been certified as the workers' bargaining agent, and it tends to act as such indefinitely, without having to face periodic reelection campaigns.[70] Although decertification is possible,[71] "[m]ost American workers who have union representation have never had the opportunity to vote on it themselves, since the union was certified before they were hired."[72] Viewed collectively, these debatable rules expurgate common law principles and simultaneously prove that workers' autonomy and liberty interests were not the central concern for either those who drafted the legislation, or the National Labor Relations Board (NLRB).

B. Right to Work Laws and the Origins of the Right to Work Movement

In light of the benefits they received through the passage of the Norris-LaGuardia Act and the Wagner Act, unions flourished in the period between 1935 and 1947,[73] and membership soared from three to fifteen million.[74] In some heavily industrialized sectors, union membership comprised eighty percent of the workforce.[75] This vision of expansive labor union power reached its pinnacle when John L. Lewis led coal miners in two prolonged and devastating strikes during World War II.[76] In "response to the postwar deregulation of wages and prices in August 1945, 'major unions immediately demanded huge raises, thirty percent and more . . . [and] union leaders . . . threatened to shut the country down."[77] "During and after World War II, the labor movement thus acted consistently with the objective of augmenting its power and expanding "its forced-dues empire."[78] Illustrating the incoherence of the industrial peace justification for the NLRA, "[d]uring the war, union [leaders] ordered more than 13,000 strikes--many of them having nothing to do with wages and working conditions, but simply to expand their control over the labor market."[79]

On the other hand, an embryonic movement led by opponents of "compulsory unionism succeeded in getting referenda placed on the 1944 general election ballots in Florida and Arkansas, asking voters to approve laws that would make contracts, which forced workers to choose between paying union dues and losing their jobs, illegal."[80] Both measures were approved.[81] A few years later, three more states added Right to Work protection for workers, and six additional states followed suit in 1947.[82] Horrified, the labor movement filed suit culminating in two decisions by the United States Supreme Court to uphold state Right to Work law protection.[83] Justice Hugo Black in a concurring opinion in one case stated,

There cannot be wrung from a constitutional right of workers to assemble to discuss improvement of their own working standards, a further constitutional right to drive from remunerative employment all persons who will not or cannot participate in union assemblies.[84]

With successful state referenda ratified by the United States Supreme Court, a vibrant grassroots movement aimed at blocking compulsory unionism in America began. The passage of the Taft-Hartley Act in 1947 via a Congressional override of President Truman's veto reinforced this grassroots movement.[85] George Leef observes that the passage Taft-Hartley Amendments had little immediate effect on the growth of unionization.[86] Instead, by 1953 unions grew to comprise thirty-six percent of private sector workers.[87] Therefore, claims that the Taft-Hartley Act withdrew nearly all union advantages and reduced union density rates are not sustained by the empirical record. While the Taft-Hartley Act attempted a more balanced approach to labor relations than the Wagner Act by adding a list of union unfair labor practices such as coercion, discrimination and the use of secondary boycotts, the statute did not withdraw federal support for most of the characteristics of compulsory unionism.[88]

Nonetheless, crucial for the right to work law movement was the addition of the following language:

Nothing contained in the amendment made by subsection (a) shall be construed to authorize the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.[89]

Leef argues, however, that the rights of workers to refrain from unionism could have been effectuated more effectively by simply abolishing the original (Wagner Act) statute.[90] Although free rider claim have been used to maintain union coercion, Leef eviscerates such arguments by demonstrating that worker interests are not uniform.[91] Without consent or interest uniformity among workers, the free rider pretext collapses.[92] Because only the individual can assess the subjective benefits of union membership,[93] represented workers who prefer to remain independent of a union are likely to become forced riders via union security agreements. Further, contrary to contentions by labor union advocates, Leef shows that unions have continued to exist in Right to Work law states despite the fact that workers can legally withdraw their support. Additionally, Leef convincingly argues that unions might act more responsibly if they had to compete for resources provided by working people.[94]

Persistent union autocracy and violence continued to fuel the Right to Work movement. In 1953, the Teamsters Union organized taxicab companies across the nation and called a strike in Wichita, Kansas. The companies resisted and workers continued to go to work. The Teamsters responded by targeting such workers with stink bombs, bottles, paint, and gasoline bombs. The union continued to issue threats and the dispatch office of one company was dynamited. Violence continued to escalate. On the night of December 12, 1953, cab driver Deering Crowe was beaten with repeated blows to the face. This assault burst a malignant tumor. The operation required to repair Crowe's tumor was delayed, and he died leaving a widow and two children. This act of violence coincided with an ongoing debate in Kansas over a Right to Work bill that had been introduced in the legislature. Before his death, Crowe had become a compelling spokesperson for the law, and his story provoked Reed Larson[95] to sere as the driving force in the American Right to Work Law movement.[96]

In 1955 the National Right to Work Committee proclaimed that both its existence and its sole objective was the elimination of compulsory unionism.[97] The committee announced the following goals: educate the public about the threats posed by compulsory unionism; encourage and support both employers and employees who resisted the adoption of union shops; assist workers who fought in the courts to protect their jobs from union initiated discharges; and provide information and material to the various state groups that were engaged in the fight against compulsory unionism.[98] The Right to Work movement had to overcome the failure of politicians and large corporations to take a principled stand in favor of the liberty of workers. This failure contributed to funding problems, which were solved through direct mail efforts. Direct mail efforts produced hundreds of small individual contributions from workers and small businesses.[99] The Right to Work Movement, however, lost five of six referenda campaigns during 1958.[100] Because of these difficulties some considered the Right to Work effort dead, yet both the movement and its organization experienced a revival during the 1960s.[101]

C. Defending Government Employees From Forced Unionism

Because it seemed impossible to bargain collectively with government in the 1950s, the labor movement focused much of its energy on unionizing the private sector workplace.[102] This attitude changed in the 1960s[103] and labor hierarchs realized that they had overlooked "a gold mine of workers who might become union dues payers."[104] Union leaders decided not "to rely on persuasion to get more workers to join voluntarily."[105] Leef illustrates the NRWLC's struggle to counter these efforts. The reluctance of politicians to place the liberty of interests of individual workers ahead of short-term political expediency contributed to the thorniness of this conflict. For example, in an effort to improve efficiency and take small steps toward privatizing the U.S. Postal service during the Nixon administration, Postmaster General Winton Blount[106] agreed to compulsory unionism for postal workers.[107] This agreement, if ratified, would have provided a foothold for unions to "install compulsory unionism throughout the federal government."[108]

With 750,000 workers, the Post office "was the largest civilian employer in the United States."[109] Approximately "twenty percent [of the workforce] had chosen not to join a union, a right that was protected under Executive Order 10988 issued by President Kennedy in 1962."[110] This order "had been reiterated by President Nixon's Executive Order 11491. . .in 1969."[111] Nonetheless, Blount concealed his capitulation to AFL-CIO demands.[112] After discovering this surrender, the NRWLC launched an effective counterattack within the United States Chamber of Commerce, in similar business groups, and among significant contributors to Republican candidates.[113] While the "postal service remains inefficient and mailing costs escalate faster than the rate of inflation, Congress with the assistance of the NRWLC, has continued to ban compulsory unionism within the Postal Service, and to advance the principle of individual liberty."[114] Although the NRWLC has not always triumphed,[115] its vigilant efforts against attempts to expand compulsory unionism within the federal government sector have been largely successful.[116]

D. Rent Seeking in the Construction Industry and the Battle for "Reform"

Union activities in the construction industry included efforts to maximize both the number of job classifications and the number of jobs. Taken together, these efforts sought to maximize profits for union treasuries while providing economic rent for the labor movement.[117] In cooperation with these objectives, unions turned their attention to common situs picketing,[118] and other efforts[119] aimed at stifling competition from nonunion shop operators. Most of these efforts, as John Gray[120] might describe, involved politics in pursuit of special interests.[121] In the past, labor officials used common situs picketing until "it was declared to be an unfair labor practice by the Supreme Court's ruling in NLRB v. Denver Building & Construction Trades Council in 1951."[122] Craving the capacity to inflict economic damage on parties with whom the union did not have a dispute, unions sought a legislative solution. However, the National Right to Work Law Committee's fierce opposition led to the defeat of common situs picketing bills in 1975 and 1977.[123]

Among other "reform" efforts, labor unions supported campaign finance initiatives. Clearly, "government financing of elections might tilt the playing field" because "union officials would still be free to support their favored candidates with hundreds of millions of dollars worth of 'in kind' services such as phone banks and get-out-the-vote drives."[124] The NRWLC took action to prevent this initiative by working to intercept this legislation. Additional "reform" efforts included the enactment of laws, making it easier for unions to prevail in certification efforts before the National Labor Relations Board.[125] Skillfully supporting legislative filibusters, the NRWLC facilitated the defeat of these "reforms."

E. Legal Defense Efforts

While the accomplishments of the NRWLC in the legislative arena have been noteworthy, its work in the litigation arena has been equally impressive. The latter arena remains crucial because autocratic union officials, often snub the law.[126] "Over the years, thousands of workers have suffered violations of their rights, including physical violence and even death, because they . . . put their own desires and welfare above the demands of union autocrats."[127] While union hierarchs discovered the irresistible temptation to engage in subordination, workers fell victim to intimidation. Archibald Cox describes this quandary clearly:

Most men are reluctant to incur the financial cost in order to vindicate intangible rights. Individual workers who sue union officers run enormous risks, for there are many ways, legal as well as illegal, by which entrenched officials can 'take care of' recalcitrant members.[128]

Union bullying requires an opponent with ample resources and sufficient motivation to lessen the odds. The National Right to Work Law Committee catalyzed the formation of a new entity - the National Right To Work Legal Defense Foundation (LDF).[129] They are separate organizations, each with its own staff and sources of funding,[130] but neither organization takes a partisan political position.[131] The LDF takes cases involving misuse of compulsory union dues for political and ideological purposes as well as cases involving violations of workers' constitutional rights of free speech,[132] assembly and other civil rights; violations of the merit principle in public employment and academic freedom in public education; injustices in the compulsory union hiring hall referral system; violations of existing protections against compulsory unionism,[133] and cases involving union violence.[134]

Among the LDF"s most famous Supreme Court cases are Abood v. Detroit Board of Education[135] and Beck v. Communication Workers of America.[136] In Beck, the District Court ultimately found that "the collection and disbursement of agency fees for purposes other than collective bargaining violated the First Amendment rights of workers."[137] Moreover, a special master appointed by the court found that the union spent nearly eighty percent of its income on political activities and other matters having nothing to do with collective bargaining.[138] This finding is vital because such evidence, along with similar proof,[139] extirpates persistent union free rider arguments in favor of compulsory unionism and mandatory dues payments.[140]

The Supreme Court decision in Beck, upheld the district court's decision, but rested largely on the narrower claim that the union breached its duty of fair representation.[141] The Beck decision provides a starting point for dissenting workers to take such claims either to court or to the NLRB. In light of the imbalance in economic resources favoring unions, the vindication of employee rights is rare. This is particularly true at the administrative agency level, since the NLRB appears driven by a political calculus that favors compulsory unionism. Accordingly, the Board has been reluctant to support workers' duty of fair representation rights, even when the United States Supreme Court has previously vindicated them.[142] Indeed, the NLRB delayed for eight years before issuing it first post-Beck decision, California Saw.[143]

Despite the challenges it faces, the Right to Work movement has been very effective. Verification comes in the form of counterattacks by America's labor hierarchy, with similar efforts by the American government's bureaucracy. The counterattack has taken the following forms: (A) a lawsuit filed by thirteen unions and the AFL-CIO asserting "Right to Work organizations were financing workers' lawsuits against unions with funds provided by 'interested employer,' conduct allegedly . . . prohibited by the Landrum-Griffin Act",[144] (B) a labor union suit that sought to compel the disclosure of Right To Work contributors despite a Supreme Court decision preventing such disclosures in NAACP v. Alabama,[145] ( C) an Internal Revenue Service that challenged the LDF's charitable status which threatened the tax deductibility of contributions,[146] (D) an aggressive effort led by the Chairman of the Federal Election Commission (FEC) who formerly served as the AFL-CIO's associate general counsel, who, "used the powers of office"[147] to impede the Right to Work movement.

Among the NRWLC's cherished objectives is to pass statutes that extend the Right to Work principle to more states while concurrently defending statutes that are already in place. The AFL-CIO recognizes the benefits of combat through exhaustion, and its allies have introduced bills to repeal Right to Work laws in eight to ten states per year.[148] On the litigation side, the LDF is embroiled in important efforts to prevent "top-down organizing."[149] Since union leaders recognize that they are likely to lose fifty-percent of union certification votes and even if they prevail they may fail to successfully negotiate a collective bargaining agreement, labor leaders "have taken to pressuring management into forcing unionism on their employees whether they want it or not."[150] In essence, labor and management join together and agree they will support unionization.[151] LDF lawsuits attack the legality of this trend in union organizing.[152] On the legislative front the Right to Work Committee has remained vigilant against recent proposals to approve "unionization without a secret ballot vote of the workers,"[153] while continuing to support efforts aimed at protecting "workers against union coercion and abuse."[154] Such efforts vindicate the observation that compulsory unionism is "antithetical to the American tradition of liberty and individual choice."[155] Eighty percent "of the public believes that workers should not be compelled to belong to a union in order to hold a job."[156] Nevertheless, the Right to Work movement will face persistent difficulty in translating the preferences of most Americans into a reality enjoyed by all workers. An examination of the justification, the origin of the opposition to the workers' liberty interests and the correlative desire to impose labor organizations on workers frames the discussion in the next section.

II. Analysis

What has always made the state a hell on earth has been

precisely that man has tried to make it his heaven.[157]

James Madison once argued: "if industry and labor are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened Legislature could point out . . . [A]ll are benefited by exchange, and the less this exchange is cramped by Government, the greater are the proportions of benefit to each."[158] The Madisonian perspective was premised on the idea that limited constitutional government constitutes a bulwark for individual liberty. Conversely, alternative conceptions of government reify unlimited democracy and allow government to take sides and augment the sharpness, if not the death rate, of the war of all against all. Although, Madison and the framers favored a modest conception of government, this view has lost some of its luster in an era that is drawn to progressive ideals and postmodern identities. On an individual and collective basis, modesty and self-restraint has limited appeal for contemporary individuals who are captivated by the expansive claims of the likes of Rorty[159], Sweeney[160] or Shklar.[161] Further, an expansive and progressive self-conception compels or, at the very least, implies an expansive government. Accordingly, government power becomes essential in attaining and securing various identities that humans can imagine for themselves and others. Government power is positioned as a bureaucratic preference fulfillment apparatus in which resources are redistributed so as to contribute to collective satisfaction while incommensurability qualms are overlooked. Whether they are the actual, or inadvertent intellectual heirs of Mill[162] or Bentham, the central goal of progressives is to achieve the "greatest good for the greatest number of individuals."[163] Mill certainly expressed support for the claim that human beings should be free to form opinions, and to express their opinions without reserve as part of what might be called liberty.[164] It is unclear whether Mill successfully resolved the tension between liberty and utility. Nonetheless, it seems obvious that utilitarianism and the persistent "appeal to utility must be 'grounded on the permanent interests of man as a progressive being.'"[165] Whatever the risk to human freedom associated with NLRA and other New Deal legislation, such laws arrived at a time when Americans were increasingly receptive to progressive ideas.

A. A Progressive Conception of Labor Law and Labor Unions

While the various labor statutes enacted during the 1930s likely operate as paragons of majoritarianism, consider briefly the progressive case for government regulation. Progressives of various stripes, as early as the 1930s, both within and outside the labor market context, produced a large number of claims that are either premised on the market failure presumption,[166] or alternatively attached to labor solidarity aspirations.[167] Senator Wagner, the lead drafter of the NLRA, relied on similar claims. He invoked market failure and labor solidarity claims (along with an industrial peace rationale) to argue that statutorily protected unionism provides freedom and dignity, through cooperation with others, for workers caught in the labyrinth of modern industrialism and dwarfed by the size of the corporate enterprise.[168] Missing in the "equality of bargaining" component of this claim is an understanding central to union membership disputes: the fact that cooperation in the form of dues payments or membership, are premised on statutory mandates that are coercive on their face[169] Conversely, the 1947 Taft-Hartley Amendments recognized the NLRA's coercive effects, and commenced the process of protecting the freedom of association rights of workers by providing workers with explicit permission to refrain from engaging in concerted activity.[170] These changes were limited because workers were still bound by majority rule and exclusive representation rules that enhance the power of labor cartels. George Leef clarifies:that the NLRA continues to restrict individual human freedom and liberty in a number of ways. Labor law mandates human association in the form of a compelled collectivity, such as labor unions that retain priority in its inevitable conflict with classically liberal understandings of human identity and human authenticity which are connected directly to the constitutional values of freedom of speech and association.[171]

By contrast, labor movement advocates conceive of labor freedom as a collective construct, grounded in the notion of obligatory fraternity, as opposed to an individualized entity - negative liberty - that is a defensible good for its own sake. Compulsory association as a desirable objective has benefited from its connection with ideas of justice. Justice happens to be a compelling trump card, because some observers equate capitalism and its emphasis on the individual with barbarism. Socialism becomes the catalyst for freedom.[172] Conversely, impartial observers with questionable manners conclude that human barbarity tends to perform rather splendidly under socialism.[173] According to Hayek's intuitive understanding of history, "the rise of fascism and nazism was not a reaction against the socialist trends of the preceding period but a necessary outcome of those tendencies."[174] Unimpressed with the logic of Hayek's claim, progressive commentators return to the language of justice. Insufficiently convinced by simple welfare claims embedded in the statutory language of the NLRA, for example, they are often drawn to the expansive notion that workers must receive certain entitlements. These rights, they argue, include a so-called fair wage in an egalitarian sense that comports with the notion of equal dignity.[175] Indeed, for some, it may be possible to conclude that society's failure to guarantee fair wages, or alternatively to ensure the conditions under which fair wages flourish constitutes governmental complicity in human cruelty.[176] Although few of these goals are attached explicitly to the NLRA, such provocative contentions ensure that labor unions remain an indispensable catalyst for progressive societal transformation.[177] Consistent with that aspiration, and despite the presence of ongoing ameliorative approaches (pro-union statutes and the welfare state itself), some observers contend that workers have been left at the mercy of global employers. Such workers have been deprived of basic and necessary substantive equality.[178] On one account, the work ethic becomes part of the battle for control and subordination in which working people are required to accept a working life that neither is noble nor responds adequately to their own standards of moral decency.[179] Globalization allows the old welfare state (as a societal good) to be demolished as employers "shift the cost of the 'recommodification of labour' to the Treasury."[180] Sympathetic American observers have argued that the union movement ought to be reenergized as a "robust engine of collective insurgency against globalization, hierarchy, unwarranted management power, class-based injustice, and increasing disparities income."[181]

This view appears to resist the notion of "negative" liberty as well as its struggle against intrusive government and majoritarianism.[182] The progressive outlook amounts to a tangible thirst for meaning in life despite an inability to articulate convincingly what that might entail. This dream of liberation is seen (by some) as part of a movement that fashions progressive human advancement in the form of egalitarianism and solidarity.[183] This vision operates in harmony with the AFL-CIO's objectives that include making the most "of the solidarity and energy of the 2004 presidential election campaign . . . by helping workers form unions and building the most dynamic labor political program in [its] history."[184] In order to achieve these goods, contemporary labor union organizations must command the mobilization of all workers in the battle to transform society, and the market, as part of its elusive search for class-based justice.[185] Progressives admit reluctantly that the Taft-Hartley Act of 1947 reframed the NLRA to allow employees some degree of "choice" with respect to unionization and collective bargaining.[186] The Taft-Hartley Act manifested Congress' intent to de-emphasize self-organization and group action.[187] Critics respond to such admissions by contending that the act constitutes a slave-labor act.[188] Before 1947, "it was possible to imagine a continuing expansion and vitalization of the New Deal impulse. After that date, however, labor and the left were forced into an increasingly defensive posture."[189] These complaints have two emphases: First, the sharp drop in contemporary labor union penetration rates, particularly within the private employment sector, contributed to a loss of labor's bargaining power[190] and second a correlative drop in labor's political and social influence.[191]

These developments diminish the likelihood that labor can reshape America as a utopian enterprise borne of collectivist ideals. These ideals in their propositional form posit that a desirable form of "civil association" will only be attained when individuals act collectively (and coercively) in pursuit of their common ends.[192] This conception of coercive human association contra a principled conception of liberalism grounded in individual autonomy, complements the belief that politics and government power form the proper vehicle to attain the transformation of society. From a Bickelian perspective, this approach to labor or any other law is rooted in the notion that the values society adheres to evolve over time.[193] While limits are set by culture as well as time- and place-bound conditions, the task of government informed by the present state of values is to make a peaceable, good, and improving society.[194] Expansively defined, human progress is the goal. Law-and specifically labor law, as conceived by union hierarchs and labor movement proponents[195] is seen as the principal vehicle through which this society can assert its values.[196]

It is possible that reality is quite different. Human progress and fraternal associations are possible, but at what costs? Stalin's efforts to attain a proletarian dictatorship have proved that fraternity, as well as the average wage rates, can indeed rise when, and if, some workers are simply liquidated. In a purely materialistic universe, both America and the world may seem to be of trivial significance across a time and space continuum that provides no source of meaning. If life has meaning, and if we live in a universe in which meaning is possible, I believe Stalin and Hilter's naturalism will be unappealing. Still, the dream of progress-the radical transformation of society and humankind-has found support in various quarters. "Since Condorcet, the philosophy of Progress has promised to eliminate war, disease, and need, and various ideologies have announced a radiant future."[197] Professor's Eagle offers a brilliant taxonomy of America's search for earthly salvation in the form of "scientific" socialism which achieved inevitability in the form of its own implosion, postmodernism that leads inevitably to "Sheilaism" and progressivism as a vehicle for delivering the goods.[198] It is possible that some notion of compulsory progress operates as a contemporary belief legitimating government protection and statutory encouragement of labor unions.

B. Examining the Evidence

Leef's book presents a persuasive case that the Right to Work Movement is congruent with American ideals. Both the movement and its opponents require context and an examination of the evidence that either sustains or refutes the progressive case for human compulsion. The Right to Work movement and its progressive adversaries are fluent in the language of human freedom and equality. Differences arise because the Right to Work movement, following Hayek, seeks equality in negative liberty, while proponents of obligatory progress seek equality in restraint and servitude, claiming they offer "new freedom."[199] To repeat a paradox, despite the language of freedom, the labor statutes, as they are interpreted and administered, communicate compulsion. The various statutes and administrative rulings which regulate labor, make manifest, workers who are not union members, as well as workers who are members are obliged to pay either union dues or agency fees as a condition of employment, if the union-management contract requires such payments.[200] Contemporary labor law resonates with majoritarianism which cannot be differentiated fully from authoritarianism. If this understanding of the inherent tendency of labor law is correct, something inevitably must give. Hayek forecasts, and Leef verifies, that individual human freedom is the casualty. Leading proponents of labor law and the labor movement concede as much while frequently misstating the case. Consider the following understanding of the America's contemporary labor conflict:

The war is between those who support collective values and well-being for all and those who support unbridled individualism; between those who value workplace and social democracy and those who promote workplace and governmental totalitarianism.[201]

First, charity commends the following concessions: Following Bickel, Professor Dannin correctly acknowledges that (A) that failure to recognize any "values at all is to deny a difference between ourselves and other particles that tumble in space"[202], and (B) that law is the principal institution through which well-socialized Americans can assert their values.[203] Secondly, while Dannin adverts correctly to the existence of the fundamental conflict between those who support collectivist values and those who support individual ones, her comments misstate Madison's conception of human freedom and liberty grounded in consensual exchange. Although recent history verifies that government power is placed regularly at the disposal of union hierarchs and majoritarian hegemony, Dannin's commentary misplaces governmental totalitarianism by situating it incorrectly on the side of the individual as opposed to the collective interest. In reality, her perspective implies that workers' freedom and liberty must be subjugated to the collective or majoritarian interest that reflects a collective conception of the good. Consequently, Dannin relies on her understanding of the values embedded in a quintessentially majoritarian instrument - the NLRA, itself. While it is doubtful that the law contains Professor Dannin's preferences, the substance of her approach appears, ironically enough, to echo Robert Bork's contestable position. Bork suggests that "individual rights should be banished from our political discourse . . . Political majorities have . . . the right to define and 'suppress' moral harms even if doing so thwarts what some people take to be individual rights or liberty."[204] Moreover, it is possible that lumping governmental totalitarianism in with the side that actually favors worker freedom operates consistently with Marxism's deployment of the term "bourgeois culture" as a way of lumping together anything and everything intellectuals despise.[205] Rorty explains:

Such linkages help us intellectuals to associate ourselves with the ideals of democracy and human solidarity. These linkages let us have the best of both worlds: we have been able to combine the traditional disdain of the wise for the many with the belief that the present, degenerate bourgeois many will be replaced by a new sort of many - the emancipated working class.[206]

Assuming the descriptive appeal of Rorty's analysis, as I have argued elsewhere, workers, exemplify a prephilosophic - even antediluvian - blank slate that requires direction in order to acquire sufficient moral intuition.[207] In contrast, union hierarchs and their intellectual associates view themselves as members of the philosophic vanguard, and they function as forerunners of a preordained future destination to which workers' innate yet, inchoate intellect guides them.[208] Critically, this in loco parentis perspective deploys the language of "democracy" arguing that the core of American labor law has been essentially sealed off from both democratic revision and contemporary renewal and from local experimentation and innovation.[209] If this perspective is valid, the aspirational premises of the New Deal labor regime[210] are at risk.

A "benevolent guardian that bargains against management in the workers' best interest" might be found to lead a union.[211] If this is true, assuming that all workers' "best interests," are uniformly identical, then free riding may resurface as a possibility,[212] that justifies compulsory payments to unions. Many commentators remain skeptical that such a guardian can be found.[213] Doubts are "elevated both by virtue of the existence of dues objectors and a comprehensive understanding of the human diversity embedded within the present-day workforce."[214]

If one accepts that progressives have failed substantially to sustain their idealistic case for compulsion to this point, if progressive proponents have seen vibrant unionism as a critical component of government planning that is necessary to ideally redistribute resources,[215] and if regulation of labor markets has been viewed as a public good, as some aver,[216] what empirical evidence now remains to justify compulsory unionism? Because concrete moral judgments often turn on contingent circumstances as well as on general moral norms,[217] we must inspect the costs and benefits associated with the usual suspects, including: (A) industrial peace; (B) notions of justice; and (C) the necessity of fraternal association. Because the evidence shows that Americans have been content to go bowling alone,[218] it is possible that this isolation may give rise to a yearning for community. If so, fraternal association likely resonates with some observers. Furhermore, an empirical case that supports the industrial peace rationale. If labor peace constitutes a public good, the presumed market correcting benefits of this good might outweigh the absence of voluntariness in the current labor law regime. Recall that "[t]raditional collective bargaining under common law prior to the 1930s, in both the public and private sectors, was voluntary."[219] Voluntary by definition implies a form of individuated consent as a necessary predicate. Since Herbert Hoover, "collective bargaining under statutes and court decisions has been compulsory."[220] Free collective bargaining requires "negotiations between willing parties on both sides: employees freely choose unions to bargain for them; and employers freely choose to bargain with those unions rather than individual employees."[221] Putting aside collective action problems that tend to plague large organizations, the current labor paradigm which delegates power to private groups cannot result in free collective bargaining, given the absence of worker unanimity and employer choice. Admitting as much, the United States Supreme Court in A.L.A. Schechter Poultry Corp. v. United States "unanimously declared the NIRA [National Industrial Recovery Act] an unconstitutional delegation of legislative power to private parties."[222] Hence Schechter and Carter v. Carter Coal Co., are among the most important cases of the 1930s demolishing one of the main pillars of the Roosevelt New Deal effort to cartelize private industry.[223] Still, since the Supreme Court's holding in these cases, the Court has enforced labor union compulsion.[224] Indeed, it is argued that in the mid-1940s the Supreme Court appeared to "reinterpret the NLRA and RLA so as to preclude individual employment contracts in most circumstances,"[225] while justifying exclusive representation on labor-peace grounds against constitutional claims to the contrary.[226]

Despite little empirical evidence supporting the Court's interpretation, the question becomes, how does one confront the Supreme Court's empirical claims if we live in a world where we cannot agree on what counts as empirical, or even what constitutes an empirical claim? It is doubtful that the Supreme Court would consider itself necessarily bound by its own empirical assertions. I contend, however, the Supreme Court's industrial peace claim finds its support in consequentialist assertions made by drafters and advocates of the NLRA, regardless of the absence of empirical evidence that supports these various contentions. Unvaryingly with an earlier observation,[227] industrial peace actually declined afterpassage of the 1930s labor legislation[228], thereby deflating the industrial peace rationale for compulsory unionism.

If the available evidence refutes the industrial peace rationale, it might be possible to justify compulsory union on grounds of justice. The empirical evidence is not promising. Recall, Katz and Summers' demonstration that most economic rents generated in the United States economy accrue to labor.[229] Second, labor unions evidently do well at the expense of minorities[230], contribute to the rise of the "underclass,"[231] and generally "redistribute income to their well-paid white members at the expense of groups with lower incomes."[232] All redistributive efforts are challengeable on ethical grounds[233], and of course, the empirical record suggests that unions redistribute income regressively, therefore raising another layer of objections. We should not conclude that redistributive efforts associated with compulsory unionism can be only challenged on empirical grounds because Nozick shows that any "attempt to impose an approved pattern on the social distribution of goods requires continuous interference with individual liberty, since gifts and free exchange will constantly subvert the pattern."[234]

There is still another ground that might sustain compulsory unionism. This remaining ground may or may not be fully refutable on empirical grounds because compulsory unionism, often, constitutes a normative demand that government alter the terms of civil association.[235] Proponents of this perspective is attracted to government regulation because they see "political society as a form of association that has value only insofar as it serves to unite men in a community in which the bonds of social solidarity are strong."[236] The language of human freedom is invoked to argue that solidarity "will be attained only when civil association [commands] that individuals act collectively in pursuit of their [hierarchically mandated] common ends."[237] This approach extends the bounds of mandatory collectivity to unions as statutory instruments of the polity in the quest for presumptively common objectives.[238] Meanwhile, classical liberalism shows that a defensible form of association consists of consenting "individuals bound by rules of just conduct which by specifying the terms of cooperation, regulate their behaviour and ensure peace."[239] Ideally "civil association has no purpose other than to preserve order so that the individual might pursue his own (private) ends together with others or alone."[240] If we accept these philosophic claims, then the case for compulsion finds its theoretical refutation.

If social solidarity is to function as a public good, there is more to be said. Against this background, a keen observer asserts that many progressives, liberals and unionists might "say that our problems stem from lack of political power. But our lack of power has its roots in something even more important and that is our inability to capture the hearts and minds of the people."[241] Capturing hearts and minds can operate either as a defensible association grounded in voluntary consent, or premised on coercion that employs government power to attain this desirable objective. Labor unions and labor laws that command an association in order to form this desirable collectivity are teleological instruments.[242] This association allows those of us who are captivated by progressive ideals to foster, presumably, a form of brotherhood and community that has been missing in our lives. Brotherhood, as identified herein, may also be required to comply with the necessities of deontic logic requiring obligation - mutual obligation. Labor movement advocates see unions as communal institutions that must thrive in order to create a society imbued with the value of industrial and social democracy, equality, social and economic justice, fair wages and working conditions, and industrial and social peace.[243] Workers give up their individuality for a compelled exchange wherein dues payments and freedom of association are traded for speculative utilitarian and emotional benefits resulting from a socially transformed community led by autocrats. The breathtaking weakness of this argument- mandating communal representation-may verify the seductive attractiveness of self-congratulations as a substitute for clear-eyed policy,[244] or promote skepticism.

There is little evidence that workers are despondent about their current lack of representation.[245] This perspective functions in concert with the lack of evidence that compulsory union regimes conduce to consequentialist objectives such as "fair wages"[246] and "industrial peace."[247] American experience provides few reasons for workers to obligate themselves willingly to either union hierarchs or the principles of exclusive representation and majority rule. Given worker unwillingness, it is unlikely that the civil associations desired by progressives can be obtained without compulsion. Conversely, progressives attracted to an imperative that requires them to achieve the "greatest good for the greatest number," freed from necessity of taking differences between persons seriously[248] and animated by the belief that appeals to utility must be tied to the permanent interest of man as a progressive being, have become despondent in the face of the reluctance of workers to bind themselves to a labor union collectivity. Progressives see the present-day state of the labor movement rightly as the crystallizing apogee of their discontent.

In a free society that values individual liberty wherein worker interests are not uniform, such discontent should be seen as illegitimate. Leef intimates that labor unions can be legitimated only when they act as purely voluntary associations that require individual consent before the obligations of membership attach.[249] George Leef opts for a classical liberal approach to civil association which is bounded by contractarianism. While the liberal contractarian model is not without justifiable criticism - particularly in view of presumptions that are derived from speculative enlightenment premises - the assertion that the contractarian model is strong on morals and theory, but weak on both pragmatism and the capacity to resist authoritarianism,[250] requires the context. Free Choice for Workers provides context that demonstrates the vulnerability of such claims, these asserted deficiencies, as an empirical and ethical matter, are more accurately attributable to a society grounded in progressive principles and ideals. History and Hayek have shown that adherence to the gospel of government enforced progress tends to lead us down the road of compulsion and ultimately toward authoritarianism, and possibly totalitarianism. This possibility exposes the majority of the population to suppression by the few. Consistent with that intuition, David Bernstein argues that while legislation benefiting labor unions suppresses the economic status of African-Americans, it fails to contribute positively to the wage earned by nonunion white workers.[251] In fact no historical correlation between union membership and overall wage growth exists,[252] which signifies that compulsory unionism privileges some individuals with disproportionate benefits at the expense of others. By contrast, a society defined by liberal values requires that we take seriously differences between persons, and agrees that human progress, if it exists at all, is largely individual, often gradual and not necessarily permanent since a government grounded in principle cannot privilege one group in the war of all against all. Properly understood, Free Choice for Workers exposes contemporary unionism as a variety, and progressive ideals as a victim, of "the 'fraternal conceit': the fanciful notion that community and social solidarity can be secured" by compulsory forms of "political association."[253]

Resisting this impulse within the confines of any liberal democracy will be difficult and the possibility that any liberal-legalist order consisting of adversarial individuals and groups will not be sustainable, must be acknowledged.[254] Such a democracy runs the risk of aggravating precisely those points of tension which a vibrant political process should aim at alleviating.[255] The demand for workplace compulsion and state-sponsored fraternity, illustrates an ultimate danger: Democracy, if unchecked by a renewed emphasis on individual liberty "may bring about the precise end - despotism - which it is designed to avoid."[256]

III. Conclusion

America's labor laws suggest a principled basis for asserting "America suffers from a great many laws that should never have been passed - laws that are at odds with both the Constitution and with our tradition of individual liberty."[257] One cannot likely understand America without understanding the importance of ideals such as liberty, freedom of association and speech, no matter how frequently the nation has failed to live up to them.[258] It is also true that "the design of the American system shows an equally deep recognition of the limits of human ideals and the need to balance power and minimize risks of abuse."[259] In its concern for abuse of the individuals by the privileged, Leef's book operates reliably with ongoing efforts in Congress,[260] and private efforts sponsored by organizations like Center for Union Facts[261] and the Mackinac Center for Public Policy.[262] These efforts aim to expose union corruption, unfair labor practices, undemocratic leaders and questionable efforts to expand union power and influence through the use of coercive transfers from unwilling or poorly informed workers.[263] Suggestive of authors like Linda Chavez and Daniel Gray,[264] George Leef offers an impressive case that union leaders have betrayed the American worker, distorted the founding principles of the labor movement, and betrayed the American public in their pursuit of power.[265] Far from operating as an anti-union document, Free Choice for Workers functions as a pro-union manuscript grounded in the conclusion that unions operate as defensible institutions and laudable associations when they represent workers who join voluntarily. The book underscores Charles Baird's assessment that "forced bargaining is never justified."[266] Free Choice for Workers not only verifies Baird's conclusion, it proves that compulsory unionism characterized by compulsory dues, exclusive representation, and autocracy, is a continuing source of controversy and scrutiny. Finally, George Leef makes evident an enduring corollary that freedom is much too valuable to be entrusted to politicians of either political party.



*Professor of Law, George Mason University School of Law. For helpful comments on earlier drafts, I am grateful to: Elizabeth McKay, Jane Barton, David Bernstein, Byron Cooper, Leon Lysaght, Jeffrey Parker, and James Ross. This article was enriched by discussions at an estate generously placed at my disposal by the Randy & Kesti Suggs Foundation, Divide, Colorado. My research was entirely supported by funds provided by the Law & Economics Center at George Mason University School of Law. The usual caveat applies. © Harry G. Hutchison.

[1] Kenneth Fearing, Conclusion, in Thomas Sowell, Vision of the Anointed: Self-Congratulations as a Basis for Social Policy v (1995)[hereinafter, Sowell, Vision of the Anointed].

[2] Laborers President, Terence O'Sullivan, New York Sun, May 10, 2005 as cited in UnionFacts.com available at www.unionfacts.com/articles/unionQuotes.cfm (last visited April 15, 2006).

[3] Laborers President, Terence O'Sullivan, Chicago Tribune, May 13, 2005 as cited in UnionFacts.com available at www.unionfacts.com/articles/unionQuotes.cfm (last visited April 15, 2006).

[4] Dale Franks, Disorganized Labor, Tuesday, July 26, 2005 available at http://www.qando.net/details.aspx?entry+2306 (last visited April 15, 2006) (citing the Wall Street Journal).

[5] Tim Kane, The AFL-CIO's Disintegration and it's Possible Implications, WEB MEMO, available at http://www.heritage.org/Research/Labor/wm808.cfm?renderforprint+1 (last visited July 28, 2005).

[6]Harry G. Hutchison, Reclaiming the Labor Movement Through Union Dues? A Postmodern Perspective in the Mirror of Public Choice Theory, 33 Univ. of Mich. J. of Law Reform, 447, 450 (2000)[hereinafter, Hutchison, Reclaiming the Labor Movement].

[7] See William J. Moore et al., The Political Influence of Unions and Corporations on COPE Votes in the U.S. Senate, 1979-1988, 16 J. Lab. Res. 2003, 218-19 (1995) (the evidence fails to show a decline in the political influence of unions).

[8] From the period 1991 through 1995, for instance, total receipts by several of the major international unions, which make up the AFL-CIO actually increased while membership declined. Kenneth R. Weinstein & Thomas M. Wielgus, How Unions Deny Workers Rights, The Heritage Foundation, at http://www.heritage.org/library/categories/regulation/bg1087.html (July 18, 1996).

[9] See e.g., Charles B. Craver, The Labor Movement Needs a Twenty-First Century Committee for Industrial Organization, 23 Hofstra Lab. & Emp. L. J. 69, 69 (2005) "American labor movement is in a moribund state." Sanford M. Jacoby, Reflections on Labor Law Reform and the Crisis of American Labor, 69 Chi.-Kent. L. Rev. 219, 219-227 (considering, skeptically, the efficacy of labor reform proposals in dealing with the labor crisis).

[10] See e.g., Charles B. Craver, Rearranging Deck Chairs on the Titanic: The Inadequacy of Modest Proposals to Reform Labor Law, 93 Mich. L. Rev. 1616 (1995).

[11] See e.g., Ellen Dannin, At 70, Should the National Labor Relations Act Be Retired?: NLRA Values, Labor Values, American Values, 26 Berkeley J. Emp. & Lab. L. 223, 274 (2005) (arguing that we should make the NLRA values America's values as part of the war "between those who support collective values and well-being for all and those who support unbridled individualism").

[12] Michael H. Gottesman, In Despair, Starting Over: Imagining a Labor Law for Unorganized Workers, 69 Chi.-Kent. L. Rev. 59.

[13] Id. at 61.

[14] Clarence B. Carson, Unionism Revisited, 34 The Freeman: Ideas on liberty 4 (1984) available at http://www.fee.org/publications/the-freeman/article.asp?aid=1058&print-view=true (last visited May 12, 2006).

[15] Gottesman, supra note 12, at 61.

[16] Jacques Ellul, The Technological Society, 357-358 (1954) (translated from the French by John Wilkinson, 1964).

[17] Id.

[18] Id. at 358.

[19] Richard A. Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation 92 Yale L. J. 1357, 1407 (1983) [hereinafter, Epstein, A Common Law for Labor Relations].

[20] Richard A. Epstein, Simple Rules for a Complex World, 163 (1995) [hereinafter, Epstein, Simple Rules].

[21] Id.

[22] See e.g., Alexis De Tocqueville, Democracy in America, Part II, Book IV, chap. Vi, (predicting a new kind of servitude as government takes each member of the community in its powerful grasp, and fashions him at will, and then the supreme power covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate.) as cited in F.A. Hayek, The Road to Serfdom , xli (preface to 1956 edition)(1944) (1994 edition).

[23] Id. at 3.

[24] Id.

[25] Id. (suggesting we can learn from the past and thereby avoid repeating the same process).

[26] Alexander M. Bickel, The Morality of Consent, 4 (1975).

[27] Consistent with that intuition, Larry Alexander presents an elegant case that no universal right of freedom of expression and perhaps, association, can be found to exist at either the level of constitutional theory or the level of human rights. Larry Alexander, Is There a Right of Freedom of Expression? 185 (2005). One searches in vain for an argument that would support a human right of freedom of expression.

[28] If industrial strife imposes external costs on society as an example of market failure, perhaps government intervention can be justified to ensure that labor peace as a desirable good is not under produced. "Market failure is often the justification for political intervention in the marketplace . . . The standard argument is that if market allocations are inefficient, everyone can and should be made better off." John O. Ledyard, Market Failure, in The New Palgrave, Allocation, Information, and Markets, 185, 185 (eds. John Eatwell, Murray Milgate & Peter Newman, 1989). There is reason to doubt the efficacy of this maneuver. See infra, Part III,B.

[29] George C. Leef, Free Choice for Workers: A History of the Right to Work Movement at xiii (Jameson Books, 2006).

[30] Id. at xiv.

[31] Id. at xv.

[32] Id. at xvi.

[33] Id. at 1.

[34] Leef, supra note 29, at 1-3.

[35] Id. at 7 (citing Morgan O. Reynolds, Making America Poorer, 19-20, (1987)).

[36] Id. at 14. See also, National Labor Relations Act § 9, subd. (a), 29 U.S.C. §§ 151-169 (1935).

[37] Id. at 15.

[38] Id.

[39] Leef, supra note 29, at 15.

[40] Id.

[41] Id. at 3.

[42] Id. at 4.

[43] Id.

[44] Leef, supra note 29, at 5.

[45] Id. at 7.

[46] Id. at 7-12.

[47] Id. at 7.

[48] Id. at 7.

[49] Leef, supra note 29, at 8.

[50] Id. (emphasis added).

[51] Id.

[52] Id.

[53] Id.

[54]Richard K. Vedder & Lowell E. Gallaway, Out of Work: Unemployment and Government in Twentieth-Century America, 142 (1993) ("New Deal Wage cost-enhancing policies more than doubled the amount of abnormally large unemployment [during the middle of the depression era]"). See also Id. at 129-149; see also Id. at 138-139 ("The Wagner Act can be viewed as a continuation of the underconsumptionist, high wage policy initiated by Hoover and developed further by Roosevelt."). This approach led to prolonged unemployment related to unionization, social security and other New Deal policies which taken together suggest that wage-cost-enhancing policies more than doubled the amount of abnormally large unemployment during 1937. See Id. at 141-142.

[55] Leef, supra note 29 at 8-10. Among the New Deal efforts were the enactment of the National Industrial Recovery Act (NIRA) grounded in the mistaken belief that America's economic troubles were rooted in the free market system itself. Thus NIRA moved the United States toward a planned economy replete with "codes of fair competition." The law in effect promoted business cartels. Cartelization was then extended to labor. See Id. at 9.

[56] Id. at 10.

[57] Id. at 10-12.

[58] Id. at 11.

[59] Id. at 11-12.

[60] Leef, supra note 29, at13. Unquestionably, union security provisions ensure a steady flow of money into union treasuries irrespective of whether workers desire or alternatively, are content with union services or not. Id. at 12-14.

[61] Id. at 13.

[62] Id. at 14. "Section 9(a) says, "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such"). Id. at 14-15.

[63] Id. at 15.

[64] Id.

[65] Leef, supra note 29, at 15.

[66] Harry G. Hutchison, A Clearing in the Forest: Infusing the Union Dues Dispute with First Amendment Values, 14 William & Mary, Bill of Rights J 1309, 1391-1394 ( 2006) [hereinafter, Hutchison, A Clearing in the Forest].

[67] See e.g., Hutchison, A Clearing in the Forest, supra note 66 at 1395. Stewart J. Schwab, Union Raids, Union Democracy, and the Market For Union Control, 1992 U. Ill. L. Rev. 367, 368-370 (1992) "Even staunch union supporters blanche over the autocracy, entrenchment, and corruption of some union leaders . . . [Other evidence] suggests "union elections provide members with little real control over leaders" . . . and, that unions are possibly, if not probably, inherently undemocratic.

[68] Leef, supra note 29, at 19.

[69] Id.

[70] Id.

[71] Id. "It is possible for workers to oust a union they no longer want to continue to represent them . . . [but ] [d]ecertification elections are relatively rare, for two reasons. . . . . First, company management is not allowed to do anything to promote decertification . . . Second, few workers know about the possibility, and among those who do, not many have the fortitude to risk anger and reprisals from union bosses for trying to end their domination.".

[72] Leef, supra note 29, at 19.

[73] Patrick Hardin & John E. Higgins, Jr., The Developing Labor Law: The Board, The Courts and The National Labor Relations Act 35 (4th ed. 2001).

[74] Id.

[75] Id.

[76] Hutchison, Reclaiming the Labor Movement, supra note 6 at 451.

[77] David Frum, What's Right: The New Conservatism and What it Means for Canada 84 (1996).

[78] Leef, supra note 29, at 27.

[79] Id.

[80] Id. at 29.

[81] Id.

[82] Id.

[83] Leef, supra note 29, at 29-30.

[84] Id. at 30 (citing Justice Hugo Black).

[85]Id. at 30.

[86] Id. at 30-31.

[87] Id. at 31.

[88] Leef, supra note 29, at 31.

[89] Id.

[90] Id. at 32.

[91] Id. at 33.

[92] Id. at 33 For instance, a recently hired worker may realize that if the union negotiates a large wage increase, he will only enjoy it until he is fired or alternatively a worker who is highly productive, may be forced to comply with union rules that contribute to inefficiency and thus in the long run depress his income. Further, the union's political activities may be repugnant to the worker. Today, the wisdom of Leef's economic claim is particularly evident in America's domestic automobile industry.

[93] John C. Moorhouse, Compulsory Unionism and the Free Rider Doctrine, Vol. 2 Cato Journal, 619, 629 (fall 1982) cited in George C. Leef, Free Choice for Workers: A History of the Right to Work Movement at 34 (Jameson Books, 2006).

[94] Leef, supra note 29, at 34-35.

[95] Id. at 40.

[96] Id. at 48-52.

[97] Id. at 43-44.

[98] Id. at 44.

[99] Leef, supra note 29, at 45-46.

[100] Id. at 47.

[101] Id. at 61-78. The NRWLC mobilized opposition to an effort to promote compulsory unionism in companies involved in the aerospace industry and help defeat and effort to spread union shops to four out of five major aerospace contractors. See Leef, supra note 29, at 54-58. In addition, the NRWLC helped defeat an effort to repeal the Taft-Hartley provision providing for the preservation of state right to work laws. Id. at 61-78.

[102] Id. at 81.

[103] Id.

[104] Leef, supra note 29, at 81.

[105] Id.

[106] Id. at 82.

[107] Id.

[108] Id.

[109] Leef, supra note 29, at 82.

[110] Id.

[111] Id. at 83.

[112] Id. See also, id. at 84-85.

[113] Id. at 87.

[114] Leef, supra note 29, at 90.

[115] Id. at 93 (suggesting mixed success with respect to homeland security).

[116] Id. at 90-103.

[117] Id. at 105-06.

[118] Id. at 106 - 123. Evidently, in private-sector construction settings union leaders picket the entire work site if a non-union competitor is chosen and thus common situs picketing could shut down the whole construction site since crossing the union picket line was often met with violence or other forms of retribution. Id at 106.

[119] Leef, supra note 29, at 106 (other efforts include federal and state prevailing wage statute).

[120] John Gray, Post-Liberalism: Studies in Political Thought 11(1993, 1996) [hereinafter, Gray Post-Liberalism] ("Contrary to the classical theory of the state as the provider of public good-goods, that is to say, which in virtue of their indivisibility and non-excludability must be provided to all or none-modern states are above all suppliers of private goods"). As thus understood, rather than provide simply the pure public good of civil peace, it is increasingly likely that the mission of the modern state is to satisfy the private preferences of collusive interest groups whether or not the pursuit of such aims is cloaked in language implying some pure public purpose or alternatively infused with the language of market failure. Hutchison, A Clearing in the Forest, supra note 66 at 1339-1340.

[121] Leef, supra note 29 at 106.

[122] Id. at 106-07.

[123] Id. at 123.

[124] Id. at 129.

[125] Id. at 130-133.

[126] Leef, supra note 29, at 147.

[127] Id.

[128] Archibald Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 852 (1960) cited in George C. Leef, Free Choice for Workers: A History of the Right to Work Movement at 148 (Jameson Books, 2006)..

[129] Leef, supra note 29 at 148.

[130] Id. at 149.

[131] Id.

[132] Id.

[133] Id. at 149-150.

[134] Id. at 149-150. Among the cases involving union violence include Kirkland v. Operating Engineers in which Kirkland a backhoe operator was brutally beaten after being corned by 100 union thus and suffered three broken ribs, steel shavings were ground into his eyes and he was threatened with a knife. After a lawsuit was filed on his behalf by the Legal Defense Foundation, the union, Operating Engineers Local 675, agreed to an out-of-court settlement in the amount of $165,000. See id at 152.

[135] Abood v. Detroit Board of Educ., 431 U.S. 209 (1977).

[136] Communications Workers of Am. v. Beck, 487 U.S. 735 (1988).

[137] Leef, supra note 29, at 167.

[138] Id.

[139] See e.g., Robert P. Hunter, Paul S. Kersey & Shawn P. Miller, The Michigan Union Accountability Act: A Step Toward Accountability and Democracy in Labor Organization 4-15 (2001), available at The Mackinac Center for Public Policy. (The United States Supreme Court apparently approved, a detailed examination of union financial records that found no basis to disagree with the following: (A) in Communication Workers of Am. v. Beck, the record indicated that 79% of union dues were not chargeable to collective bargaining and related activities and (B) in Lehnert v. Ferris, the union spent 90% of its dues revenue on non-representational activities.).

[140] See e.g., Hutchison, A Clearing in the Forest, supra note 66, at 1380-1381.

[141] See e.g., Hutchison, Reclaiming the Union Movement, supra note 6, at 463 (discussing the Supreme Court's decision in Beck).

[142] See e.g., Robert Hunter, Compulsory Union Dues in Michigan: The Need to Enforce Union Members' Rights, and the Impact on Workers, Employers and Labor Unions, 12 May 1997, Mackinac Center for Public Policy (arguing that the NLRB has operated at a "snail's pace" in enforcing Beck protections). See also, Leef, supra note 29, at 169.

[143] When the NLRB decides, workers, apparently, are likely to receive little protection or relief. Raymond J. LaJeunesse, McCain-Feingold-Cochran's So-called "Codification" of Beck: In Reality a Trojan Horse, Issue Briefing, 1,2 (January 30, 2001), available with the author. See also, Tempers Flare at Hearing on Beck Rights to Not Pay for Nonrepresentational Activities, Vol. 69, The United States Law Week, No. 44, pg. 2712 (May 2001) BNA (presentation of divergent views on whether a significant problem exists for workers trying to exercise Beck rights).

[144] Leef, supra note 29, at 182.

[145] Id. at 182-187.

[146] Id. at 187-190.

[147] Id. at 190. Among other things the NRWLC sued the FEC to enforce the law against the National Education Association because this union had illegally used a reverse check-off procedure as part of its political collection scheme. Subsequently, the NRWLC was sued by the FEC. Id. at 190-196.

[148] Id. at 252-253.

[149] Leef, supra note 29, at 253.

[150] Id. at 253.

[151] Id. at 254 (discussing a case involving the United Steelworkers of America and Heartland Industrial Partners under which the employer would remain "neutral" with respect to union organizing drives).

[152] Id. at 254.

[153] Id. at 256.

[154] Leef, supra note 29, at 257.

[155] Id. at 262.

[156] Id. at 262.

[157] F. Hölderlin, cited in F.A. Hayek, The Road to Serfdom , 28 (preface to 1956 edition)(1944) (1994 edition)..

[158] James Madison, Speech in First Congress, (April 9, 1789), cited in James A. Dorn, Public Choice and the Constitution: A Madisonian Perspective, in Public Choice and Constitutional Economics 57 (James D. Gwartney & Richard E. Wagner eds., 1988) Padover 269-70 (1953).

[159] See e.g., Richard Rorty, Contingency, Irony and Solidarity, xii-xvi, (1989) (describing among other things, his version of human utopia). Notably, Rorty rejects attempts to find some collective or individual account of truth and instead he suggests that we should be attracted to self-recreation. Se,e e.g., Rorty, supra note 159, at 5, 17, and 29. Nonetheless, he contends that "we liberals" can be defined as being dedicated to creating an ever larger and more variegated ethnos that is aimed to diminishing cruelty. See id. at 197-198.

[160] Linda Chavez & Daniel Gray, Betrayal: How Union Bosses Shake Down Their members and Corrupt American Politics 19 and 49( 2004) (in his run for the presidency of the AFL-CIO labor federation, John Sweeney, sought to mobilize the more active leftist members by joining the Democratic Socialist of America, and by working to expand the socialist agenda).

[161]See e.g., Bernard Yack, Liberalism without Illusions: An Introduction to Judith Shklar, in Liberalism without Illusions: Essays on Liberal Theory and the Political Vision of Judith N. Shklar 3-4 (Bernard Yack ed., 1996) Shklar in her concern for human cruelty rejects the limited state as a form of a liberal politics of fear and instead argues for a rather broad conception of government that rescues us from the concentration of power in the form of corporations, which seems to operate consistently with at least some of rationales offered in connection with the enactment of the Wagner Act. Shklar rejects the libertarian approach to government because "it rests on a completely unjustified faith that governmental power is always more threatening to our freedom and security than the power of private actors." Id. at 3-4.

[162] Patrick Hayden, Introduction, in On Liberty, John Stuart Mill, xii, (2004). It has been argued that Mill as distinguished from Bentham does not succumb to the criticism that "liberty cannot be treated as something good in itself for it may be the case that it will produce detrimental consequences for some people. . . . [because] [I]n Mill's opinion, happiness cannot result from seeking pleasure as an end in itself, but must result from the pursuit of higher goals."

[163] Id. at xii.

[164] John Stuart Mill, On Liberty 58 (2004).

[165] Hayden, supra note 162, at xii (describing Mill).

[166] William C. Mitchell & Randy T. Simmons, Beyond Politics: Market, Welfare, and the Failure of Bureaucracy 1 (1994) (The vision underlying the expansion of regulation and bureaucracy is that the government succeeds where markets fail). It is possible that welfare economists have dethroned markets in western countries, and have administered the coronation of government premised on the claim of undersupplied public goods, exorbitant and ubiquitous social costs of private action and attached to the notion of unfairly distributed wealth and income. Id. at 3. Thus federal government regulation of the labor market expands the supply of collectively determined wage outcomes It is doubtful that this process actually improves social welfare given the well known proclivity of governments to fail to actually improve the market. For an expansive discussion of some of these issues, see. Hutchison, A Clearing in the Forest, supra note 66, at 1348-1401.

[167] See e.g., Charles W. Baird, Henry Hazlitt on Unions: Part II, The Freeman, 47, 48 (March 2005)(discussing and dismissing the logical fallacy of labor solidarity).

[168] 79 Cong. Rec. 7565 (1935) (statement of Senator Wagner) quoted in Patrick Hardin & John E. Higgins, Jr., The Developing Labor Law: The Board, The Courts and The National Labor Relations Act 35, 28 (4th ed. 2001).

[169] See e.g., Charles W. Baird, Toward Voluntary Unionism Vol. XVII J. of Private Enterprise, 77-96 (2001) available at www.cbe.csueastbay.edu/~sbesc/volunion.html . ("American trade unionism is based on coercion embodied in the [NLRA]. Its authors justified the coercion on the grounds that the interest of workers and employers are naturally in conflict that individual workers have an inherent bargaining power disadvantage with respect to employers, which unions can redress, and that unionization leads to peaceful labor relations. The principal instruments of coercion in the NLRA, are exclusive representation (from which emerges union security), and mandatory good faith bargaining.").

[170]The Taft-Hartley Act amended Section 7 to ensure that employees had "the right to refrain from joining a union." Douglas E. Ray, Calvin William Sharpe & Robert N. Strassfeld, Understanding Labor Law 426 (1999). "Section 8(b)(1)(A) makes it an unfair labor practice for a labor organization to 'restrain or coerce . . . employees in the exercise of the rights guaranteed under section 7." Id. See also Thomas C. Kohler, Setting the Conditions for Self-Rule: Unions, Associations, Our First Amendment Discourse and the Problem of Debartolo, Wis. L. Rev. 149, 186 (1990).

[171] See Harry G. Hutchison, Diversity, Tolerance and Human Rights: The Future of Labor Unions and the Union Dues Dispute, 49 Wayne L. Rev. 706, 706-712 (2003) [hereinafter, Hutchison, Diversity, Tolerance and Human Rights].

[172] See e.g., Zymunt Bauman, Work, Consumerism and the New Poor, 79-81 (1998).

[173] See e.g., Hannah Arendt, The Origins of Totalitarianism, 460-472 (1973) (1951) (discussing the evolution of Darwin's theory in the hands of and as adapted by Marx and his socialist heirs as part of the so-called natural law of the survival of the fittest that led ultimately to the creation of state terror, which culminated in Stalin's excesses).

[174] F.A. Hayek, The Road to Serfdom 6 (1944).

[175] See e.g., Charles Taylor, The Politics of Recognition, in Multiculturalism: Examining the Politics of Recognition 25, 27 (Amy Gutmann ed., 1994) (dignity refers to the inherent dignity of human beings).

[176] See Yack supra note 161 at 1 - 12 (discussing philosophy driven by a focus on human cruelty). Among other things such a focus implies that the pursuit of rights is secondary. Id. at 3.

[177] See e.g., Karl Klare, Workplace Democracy & Market Reconstruction: An Agenda for Legal Reform, 38 Cath. U. L. Rev. 1, 3-7 (1988) (seeking to expand the reconstruction logic of the New Deal labor law system beyond its self-imposed limited and arguing that instead, the NLRA should be reconceived as a vehicle to mobilize democracy on virtually all aspects of the employment relationship); (Klare also argues for a systematic program of egalitarian market reconstruction). Id. at 23.

[178] Bauman, supra note 172, at 10 (arguing that whatever claims are made for the ongoing process of globalization, there can be no universality in the social world without substantive equality).

[179] Id. at 7-8.

[180] Id. at 52.

[181] Hutchison, Reclaiming the Union Movement, supra note 6 at 448-9.

[182] Hayden, supra note 162, at xi (discussing Mill's concern for negative liberty as against intrusive government and the tyranny of the majority).

[183] Harry G. Hutchison, Toward a Robust Conception of "Independent Judgment": Back to the Future? 36 Univ. of San Francisco L. Rev. 368-69 (2002) (critiquing this view). See also Hutchison, A Clearing in the Forest, supra note 66, at 1331-1348.

[184] Strengthening Our Union Movement, accessed May 12, 2006, available at www.aflcio.org:4664/aboutaflcio/outfuture/index.cfm (last visited May 12, 2006).

[185]George Feldman, Unions, Solidarity and Class: The Limits of Liberal Labor Law, 15 Berkeley J. Employment & Lab. L. 187, 193 (1994). (suggesting that the law fails to protect workers in their search for class-based justice).

[186]Cynthia L. Estlund, The Ossification of American Labor Law, 102 Columbia L. Rev. 1527, 1534 (2002).

[187] James J. Brudney, Reflections on Group Action and the Law of the Workplace, 74 Texas L. Rev. 1563, 1567 (1996). In addition to intentionally de-emphasizing group action within the parameters of the Taft-Hartley Act, Congress, apparently, continued to emphasize individual rights in the form of workplace statutes that focused on individual interest. Id. at 1568.

[188] Nelson Lichtenstein, Taft-Hartley: A Slave-Labor Law? 47 Cath. U. L. Rev. 763, 765 (1998).

[189] Id.

[190] In response to the decline, private sector unions have increasingly joined forces with public sector unions. For example, the AFL-CIO federation has for a very long time accepted public sector unions as part of its umbrella labor federation. A recent example of such efforts includes the recent decision by the AFL-CIO to partner with the nation's largest teachers union, the National Education Association. See e.g., AFL-CIO to Partner with NEA, Associated Press, February 27, 2006, available at http://www.newsmax.com/archives/ic/2006/2/27/174223.shtml?s=ic. See also, AFL-CIO to form partnership with largest teachers union, USATODAY, February 28, 2006, at p. 7D (leaders express the hope that the AFL-CIO will give teachers more muscle when they campaign for political candidates).

[191] For instance, the leaders of one of America's largest union organizations, the AFL-CIO, recently met with the Chairman of the Democratic Party to plan political strategy amid calls for a major shakeup in labor union organizations and union organizing. Christina Almedia, AFL-CIO Leaders, Howard Dean Plan Political Strategy in Las Vegas, 1-2 (March 1, 2005). available at www.truthout.org/issues_05/030205LB.shtml (March 1, 2005). Although the AFL-CIO has maintained its political power despite the nosedive in its membership, few union or Democratic Party leaders believe that labor unions can maintain their political relevancy unless change is in the offing. Ron Fournier, Unions' grip on political relevance slips, The Detroit News, May 29, 2005 available at www.detnews.com/2005/autoinsider/0505/29/E03-196519.htm (responding to disquiet within the union leadership coupled with the fear of looming political irrelevance). See e.g., id. John Sweeney, president of the AFL-CIO proclaimed that labor unions would tie their politics to union organizing. Christina Almedia, AFL-CIO Leaders, Howard Dean Plan Political Strategy in Las Vegas, 2 (March 1, 2005) available at www.truthout.org/issues_05/030205LB.shtml (March 1, 2005).

[192] Chandran Kukathas, The Fraternal Conceit: Individualist versus Collectivist Ideas of Community, Occasional Papers 33, Multiculturalism Research Program, Centre for Independent Studies 2 (1991) (available with the author).

[193] Bickel, supra note 26, at 4.

[194] Id.

[195] See infra Part III, B, discussing Ellen Dannin's conception of the values that are embedded or should be embedded in America's understanding of the NLRA.

[196] See Bickel, supra note 26, at 5.

[197] Chantal Delsol, Icarus Fallen: The Search for Meaning in an Uncertain World, at xxiii (2003) (explaining but not necessarily agreeing with this view). See also, Edward O. Wilson, Consilience 8 (1998) "I believe that the Enlightenment thinkers of the seventeenth and eighteenth centuries got it mostly right the first time. The assumptions they made of a lawful material world, the intrinsic unity of knowledge, and the potential of indefinite human progress are the one we still take most readily into our hearts, suffer without and find maximally rewarding through intellectual advance."

[198] Steven J. Eagle, Economic Salvation in a Restive Age: The Demand for Secular Salvation Has not Abated, 56 Case Western L. Rev. 569, 570-571 (2006). Eagle also adds Libertarianism to the list. Id. at 571.

[199] Hayek, supra note 22, at 29 Progressives like proponents of increasing socialism make use of the language of, and the promise of "new freedom" thus changing the meaning of such words as freedom and equality.

[200] See e.g., Beck v. Commc'ns Workers of Am., 468 F. Supp. 93, 96 (D. Md. 1979). See also, Hutchison, Diversity, Tolerance, and Human Rights, supra note 171, at 706.

[201]Dannin, supra note 11, at 274.

[202] Bickel, supra note 26, at 5.

[203] Id.

[204] See e.g., Stephen Macedo, Majority Power, Moral Skepticism, and the New Right's Constitution, in Economic Liberties and the Judiciary 111, 113 (James A. Dorn & Henry G. Manne eds., 1987) (citing Bork).

[205] Richard Rorty, Truth and Progress: Philosophical Papers, Volume 3, 230 (1998).

[206] Id. at 230-31.

[207] Hutchison, A Clearing in the Forest, supra note 66, at 1375.

[208] Id.

[209] Estlund, supra note 186, at 1530. Consistent with this claim, Estlund, among other things, also adverts to changes in the labor force claiming that racial, ethnic and gender diversity has burgeoned since the passage of the NLRA. Id. at 1535-36. This contention, at least with respect to the employment of African Americans and other members of non-white is dubious since African American labor-force participation and employment declined after the passage of NLRA and the nonwhite-white unemployment differential widened. Such empirical evidence may be consistent with less not more racial diversity. See Vedder & Gallaway supra note 54, at 272-280.

[210] Estlund, supra note 186, at 1530.

[211] Schwab, supra note 67, at 373.

[212] Hutchison, A Clearing in the Forest, supra note 66, at 1393.

[213] Schwab, supra note 67, at 373 (discussing the unlikelihood of this possibility).

[214] Hutchison, A Clearing in the Forest, supra note 66, at 1393.

[215] See Hayek, supra note 22, at 39. (pointing out the necessity of government planning with respect to redistributing resources),

[216] See Peter H. Aranson, Bruno Leoni in Retrospect, 11 Harv. J. L. & Pub Pol'y, 661, 664 (1988). (noting public goods of this variety)

[217] Thomas C. Berg, John Courtney Murray and Reinhold Niebuhr: Natural Law and Christian Realism, 3 J. Cath. Soc. Thought, 1, 6 (2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=847985 (last visited May 13, 2006).

[218] Ron Fournier, Unions' Grip on Political Relevance Slips, Associated Press, available at http://www.detnews.com/2005/autosinsider/0505/29/e03-196519.htm at page 2 (May 29, 2005).

[219] Edwin Viera, Jr. Poltroons on the Bench: The Fraud of the "Labor-Peace" Argument for Compulsory Public-Sector Collective Bargaining, 18 Gov't Union Rev. 1, 2 (1998).

[220] Id.

[221] Id.

[222] Id. at 6.

[223] Viera, supra note 219, at 8.

[224] Id. at 14-53 (citing among other case, NLRB v. Jones & Laughlin Steel Corp for this proposition).

[225] Viera, supra note 219, at 15.

[226] Id. at 16.

[227] Leef, supra note 29, at 8. The number of strikes, often accompanied by violence doubled in the year after the passage of the Norris-LaGuardia Act and continued to rise thereafter.

[228] See e.g., Charles W. Baird, Toward Voluntary Unionism, published in The Journal of Private Enterprise, Volume XVII, No. 1 (Fall 2001), available at http://www.cbe.csueastbay. edu/~sbesc/volunion.html (last visited on May 2, 2006) "The incidence of strikes and strike violence escalated dramatically after 1935". See also, Armand J. Thieblot, Thomas R. Haggard, and Herbert R. Northdrup, Union Violence: The Record and the Response by Courts, Legislatures, and the NLRB (1999); Thomas DiLorenzo, The Myth of Voluntary Unions available at http://www.mises.org/story/1604 (last visited on May 2, 2006).

[229] Lawrence F. Katz & Lawrence H. Summers, Industry Rents: Evidence and Implications, in Brookings Papers on Economic Activity: Microeconomics 209, 209-10 (1989).

[230] Reynolds, supra note 35, at 29. See also, Marion Crain, Feminizing Unions: Challenging the Gendered Structure of Wage Labor, 89 Mich. L. Rev. 115, 1157 (1991) (noting that male-dominated unions remain insensitive to many of the concerns of women).

[231] David E. Bernstein, Roots of the 'Underclass': The Decline of Laissez-Faire Jurisprudence and the Rise of Racist Labor Legislation, 43 Am U. L. Rev. 85, 101 (1993). For instance, after racially motivated strikes failed in the southern railroad industry, white trainmen who often sought to exclude blacks from unions, engaged in terrorism, killing several black trainmen.

[232] Harry G. Hutchison, Through the Pruneyard Coherently: Resolving the Collision of Private Property Rights and Nonemployee Union Access Claims, 78 Marq. L. Rev. 1, 35-36 (1994).

[233] See e.g., Bertrand de Jouvenel, The Ethics of Redistribution (1952) (1989).

[234] John Gray, Introduction, in Bertrand de Jouvenel, The Ethics of Redistribution xv (1952) (1989).

[235] Kukathas, supra note 192, at 2.

[236] Id.

[237] Id.

[238] Hutchison, A Clearing in the Forest, supra note 66, at 1344.

[239] Kukathas, supra note 192, at 2.

[240] Kukathas, supra note 192, at 2.

[241] Unions-Firms Markets: Labor Movement Debates, October 11, 2005 available at http://industrialrelations.typepad.com/unionsfirmsmarkets/labor_movement_debates/index . . .(last visited on April 15, 2006).

[242] As used here, teleology refers to a doctrine that is part of vitalist philosophy, that holds that phenomena are guided not only by mechanical forces but they also move toward certain goals of self-realization. See Webster's New Universal Unabridged Dictionary, 1460 (1st Edition. 1994, Barnes & Noble Books).

[243] Dannin, supra note 6, at 274.

[244] My debt to Thomas Sowell, should be obvious. See e.g. Thomas Sowell, Vision of the Anointed: Self-Congratulations as a Basis for Social Policy (1995).

[245] One reason why unions have declined includes the fact "American workers born after World War II are less inclined to favor collective and statist solutions." Samuel Estreicher, The Dunlop Report and the Future of Labor Law Reform, 12 Lab. Law 117, 118 (1996).

[246] Vedder & Gallaway, supra note 54, at 280 (showing the emptiness of the fair wage rationale by summarizing data that shows that "governmental policies have raised the reservation wage of nonwhite Americans relative to the reservation wage of white American, increasing the relative duration of nonwhite unemployment and nonwhite-white unemployment-rate differential.").

[247]See Baird, Toward Voluntary Unions, supra note 169. "The incidence of strikes and strike violence escalated dramatically after 1935."

[248] See e.g., William A. Edmundson, An Introduction to Rights, 109 (2004) (suggesting that contractualist contra utilitarian and other consequentialist approaches take seriously the difference between persons).

[249] Hutchison, A Clearing in the Forest, supra note 66, at 1344.

[250] See e.g., Bickel, supra note 26, at 5.

250 David Bernstein, Only One Place of Redress, 116 (2001)

251 Id.

[253] Kukathas, supra note 192, at 2.

[254] Martin Loughlin, Sword & Scales: An Examination of the Relationship Between Law & Politics, 5 (2000).

[255] Id.

[256] Id.

[257] Steve Forbes, Foreword, to George Leef, Free Choice for Workers, at ix (2006).

[258] Berg, supra note 217, at 19.

[259] Id.

[260] See e.g., Joe Knollenberg, The Changing of the Guard: Republicans Take On Labor and the Use of Mandatory Dues or Fee for Political Purposes, 35 Harv. J. on Legis. 347, (1998) (discussing congressional efforts to expose the fact that "[e]mployees who know their rights and decide to take on the union establishment find the process . . . . marked by threats of life, family, intimidation, insults and coercion."). See also, Chavez & Gray, supra note 160, at 26. "The record of union-orchestrated violence is frightening, but even more disturbing is the fact that the U.S. government lets these terrorists acts go unpunished. In short, the unions have carved out for themselves a form of legalized terrorism."

[261] http://www.unionfacts.com (last visited on May 1, 2006).

[262] See e.g., Robert Hunter, Compulsory Union Dues in Michigan: The Need to Enforce Union Members' Rights and the Impact on Workers, Employers, and Labor Union, May 1997 available at the Mackinac Center for Public Policy.

[263] See e.g.,, www.unionfacts.com (last visited on February 20, 2006).

[264] See generally, Chavez & Gray, supra note 160.

[265] Chavez & Gray, supra note 160, at 26.

[266] Charles W. Baird, Henry Hazlitt on Unions, The Freeman: ideas on Liberty, 47, 47 (November 2004).