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.