The Right to Work--For Much Less



It would not have seemed possible a short time ago, but last month right-to-work legislation was enacted in Michigan [1], the cradle of the American labor movement. If it can happen in Michigan it can happen anywhere, and, since a right-to-work law was also enacted in Indiana this year [2], we may be looking at the beginning of a trend.

Right-to-work legislation, in spite of its name, doesn’t guarantee a job to everyone who wants one. What it does is curtail provisions in labor contracts that offend a certain policy. Those who push for right-to-work legislation try to sell the idea by saying that it will give workers the right not to join unions if they choose not to do so.  But what such laws really say is that employers and unions are forbidden from entering into contracts whereby new employees will be required to become union members after a certain period of time.

In 1947 Congress passed the Taft-Hartley Act [3]  in response to rising union radicalism.  Among other things, the Act prohibited contractual agreements between employers and unions providing that the employer would hire only people who were already union members.  Still allowed were collective bargaining agreements that required new hires to become union members after at least 30 days.  But the Act also authorized the states to enact legislation that would prohibit agreements requiring new employees to become union members at some point after they were hired.  Many states have done just that, and a few have even placed the prohibition in their constitutions.  States that have enacted such legislation or constitutional provisions are called “right-to-work states.” It is terminology that rolls off the tongue easily, perhaps, but it is misleading. “No-union-shop states” would be more accurate.

Unions have good reason to object to right-to-work legislation. It allows employees at a business where a union represents them to refuse to join the union, and avoid paying union dues, even though they benefit from the union’s representation. There is, to be sure, an economic incentive to enjoy union pay without paying union dues. But it is an enticement that works to deprive unions of funding, thereby weakening them.

The possible long term impact of right-to-work legislation on wages is cause for concern. Because such legislation weakens unions, it renders unions less able to do the things that they ordinarily do. If sufficient numbers of workers are persuaded that refusing to pay dues is in their best interests, then unions could be hamstrung to the point that it will begin to impact the protections they provide.

It is, therefore, worthwhile to remind ourselves of what things were like before the rise of labor unions. Then, as now, there was always a surplus of available labor, which created a downward pressure on wages. Any argument that wages could never be driven below subsistence level would be belied by the fact that wages were once, in fact, that low, requiring whole families to participate in wage earning. Children were deprived of education in the service of putting food on the family table. [4]  

In right-to-work states some workers do indeed elect to forego membership in the union that represents them in the interest of a short term economic advantage. If sufficient numbers do the same, unions could disappear, and the economic circumstances that prevailed prior to their appearance could return.

Few will admit longing for the return of such days. But such is the logical conclusion of the anti-union sentiment that has become so prevalent, and human nature hasn’t changed so much in the intervening years that we should rely on ethics prevailing in the present day to prevent it. Even if things do not get as bad as they were prior to the rise of labor unions, the difference in pay that already exists between union and non-union workers [5] forecasts a lower standard of living for working people in the United States if labor unions are no longer a force in the American economy. 

Some argue that all employees should have the right to decide whether or not they will belong to a union, and only right-to-work legislation affords that right. But it is false that employees don’t have a choice of whether or not to belong to unions unless they live in a right-to-work state. Employees always have the right to decertify their union and choose another or none at all. The fact that an individual employee may find himself in the minority when a vote is taken on the question doesn’t mean that he is thereby deprived of his rights anymore than he is when he votes for the losing side in a public election. Moreover, some jobs (in non-right-to-work states) require union membership, and no one is entitled to hold a job without fulfilling its requirements.

The fact that right-to-work legislation is left to state determination by the Taft-Hartley Act stacks the deck in favor of states that enact such laws. While it is difficult to pinpoint right-to-work laws as specific determinants in business decisions about location (as opposed to perceived overall pro-business climates in particular states), it would be in defiance of common sense to deny that anti-union legislation can serve as a draw for some businesses. Pressure is thus placed on states to enact right-to-work laws in order to encourage businesses to locate within their borders. Perceiving a competitive advantage in doing so, businesses will locate wherever labor unions are weakest.

There is only one solution to this problem, and that is to amend the Taft-Hartley Act to prohibit right-to-work laws. That is the only way that states that want to encourage labor unions in the interest of protecting the standard of living of working people will not be placed at a competitive disadvantage.

Opposition to this idea will arise from certain quarters that disguise themselves as proponents of Catholic social doctrine. “Subsidiarity” is a term in Catholic social teaching that has been much misused as of late, and, since it bears on the question at hand, should be given some attention here. Pope Pius XI, in his encyclical Quadragesimo Anno [6], described the principle of subsidiarity this way:

“79. As history abundantly proves, it is true that on account of changed conditions many things which were done by small associations in former times cannot be done now save by large associations. Still, that most weighty principle, which cannot be set aside or changed, remains fixed and unshaken in social philosophy: Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them.

“80. The supreme authority of the State ought, therefore, to let subordinate groups handle matters and concerns of lesser importance, which would otherwise dissipate its efforts greatly. Thereby the State will more freely, powerfully, and effectively do all those things that belong to it alone because it alone can do them: directing, watching, urging, restraining, as occasion requires and necessity demands. Therefore, those in power should be sure that the more perfectly a graduated order is kept among the various associations, in observance of the principle of ‘subsidiary function,’ the stronger social authority and effectiveness will be the happier and more prosperous the condition of the State.”

There are a number of observations to be made about Pius XI’s articulation of the doctrine of subsidiarity. It will be noted, first of all, that changed conditions can alter the proper role of government. It is a misreading of the subsidiarity doctrine to assert that what once was the proper role of a lower association should always be so. If it is true that the question of whether there ought to be a right-to-work law was better left to the states in 1947, at the time that the Taft-Hartley Act was enacted, it does not follow that it is better left to the states today.

Secondly, while the doctrine of subsidiarity sounds very much like federalism, and, indeed, there may be times when subsidiarity and federalism concur in a particular outcome, subsidiarity is not federalism. Subsidiarity is a doctrine that pertains to the distribution of functions between the government and private associations. Federalism, on the other hand, deals with the distribution of powers between governments. Federalism, unlike subsidiarity, never asks the question of whether the federal government or the states would more competently handle a particular function, but looks, rather, to what powers have been granted to the central government by the Constitution. A question of subsidiarity is a question of competence; a question of federalism is a question of jurisdiction.

The reason why the states cannot competently handle the question of right-to-work laws is because there is the built in incentive to enact them. Right-to-work laws will certainly attract businesses, but they are, in the long run, destructive of the interests of workers. It is still, hopefully, a matter of common sense that legislation that will ultimately result in the diminishment of prosperity for the many embodies poor policy. But both states and businesses should be expected to decline placing themselves at a competitive disadvantage. The only remedy is for the federal government to act, and the action it should take is to remove the right-to-work option from the Taft-Hartley Act.

--Jack Quirk