BIG LABOR VS. RIGHT TO WORK LAWS: The Battle Continues

Although the Supreme Court has established a number of precedents protecting the rights of workers, organized labor persists in using its political power to evade and defy those rulings to the fullest extent it can.

TWENTY YEARS AGO, I could shock an audience by saying that the National Labor Relations Act (NLRA) tramples, rather than protects, the rights of America's working people. Such an opinion was pure heresy. Today, thanks to the efforts of the National Right to Work Committee, the National Right to Work Legal Defense Foundation, and many journalists and labor economists, this view no longer is considered shocking. One thing has not changed, though: The billions of dollars collected through government-authorized compulsory unionism still provide the fuel that drives the liberal political machine. Without the disproportionate political muscle of union officials, gained through government-granted coercive power, the battles against the flood tide of tax-and-spend, big-government schemes could be won hands down.

Right to work proponents are making some progress, both on Capitol Hill and in the court system, in cutting off the flow of forced-dues money with which union officials fund their attacks on workers' freedom. Support has greatly increased in Congress for the National Right to Work Act, which would repeal provisions in the NLRA and other Federal labor laws that empower union bosses to force workers to pay dues or so-called "agency fees" in order to get a job.

Just a few years ago, even getting committee hearings on these proposals, much less securing passage in either chamber of Congress, was nearly impossible. Now, however, almost one-third of House members are cosponsors, and dozens of other members have pledged to vote for the bill when it comes to the floor. Every year sees the addition of more and more cosponsors in the House and Senate. Congress is now heading, albeit grudgingly, where most citizens have been for a long time. According to polling data, nearly 80% of Americans understand that it is wrong to force someone to pay tribute to an unwanted union in order to get or keep a job. Yet, few understand the far-reaching consequences of government-authorized forced unionism. It is an abusive system that affects the lives of every one of us.

Congress made organized labor into a political juggernaut by giving it the power to get workers fired for refusal to pay union dues. That allows union officials to draw in billions of dollars every year, which they use to bend the political system to their will. Elected officials in nearly half of the 50 states have compounded that mistake by extending union bosses' forced-dues privileges to state and local public employment, including most public schools.

Department of Labor reports reveal that private-sector union income alone is nearly $14,000,000,000 per year. That figure does not include income for such unions as the National Education Association, by far the nation's largest labor union, with annual dues income of well over $1,000,000,000. More than 80% of all private-sector union contracts authorize union officials to force each worker to pay dues as a condition of employment. A great deal of attention has been devoted to the decline in private-sector union membership, much of which has occurred during a period in which public-sector union membership figures have been mushrooming. What people don't hear is that, while private-sector union membership numbers are going down, total union income has been going up at a rate far exceeding inflation.

Private-sector union staff salaries exceed $2,400,000,000 per year. This payroll produces a highly politicized nationwide staff network made up of tens of thousands of full and part-time union officers and employees--a veritable political army whose attention turns primarily to politics for weeks, or even months, before each election. Union officials admit to devoting all or most of their staff resources during election season to partisan get-out-the-vote drives, boiler-room phone banks, and other political activities. In other words, they assign salaried union staff members to campaign full time while still drawing a union paycheck funded almost entirely by compulsory union dues. Nearly all national unions maintain large staffs and armies of field organizers, all trained extensively in nuts-and-bolts politicking.

Since the diversion of this union staff and other resources as in-kind political contributions is largely unregulated and unreported, its cost can only be roughly estimated. In 1996, however, Rutgers University professor of economics Leo Troy testified before the House Government Reform and Oversight Committee that total unreported union money funneled into Federal elections in presidential campaign years is as high as $500,000,000--10 times the reported union political action committee contributions and nearly three times the reported contributions by all non-union PACs put together. For the 1998 elections, the AFL-CIO, by its own admission, sent more than 9,500,000 pieces of political direct mail, made more than 5,500,000 phone calls on behalf of its handpicked candidates, and paid more than 400 full-time "coordinators" to work on behalf of partisan campaigns. All of this was funded with forced-dues money, and this effort by the parent union was multiplied by those of the AFL-CIO's 84 affiliated national unions.

Where does the money go?

What are union officials buying with all that money? They are getting more tax-and-spend big government and more regulation of every facet of Americans' lives, paid for with tax dollars. An examination of the AFLCIO's legislative agenda confirms that union officials are profoundly hostile to the free enterprise system. They have lobbied for, among other things, broad-based government price and wage fixing, the Clinton health-care scheme, and a panoply of tax increases for businesses and individuals. Gutting the successful wave of state and Federal welfare reforms over the last decade has been a top union objective as well.

Additionally, union lobbyists are among the strongest backers of the array of business-harassing regulatory schemes that are smothering small businesses across the nation under mountains of Federally imposed paperwork. The number-one reason that Washington, if it acts at all, will pass a tax cut devoid of fairness to American taxpayers or benefit to the economy is the opposition of the union political machine. The overall tax burden, as a percentage of income, is the highest it has ever been in peacetime. Federal tax receipts have jumped 49% since 1992. It is no coincidence that the growth in government spending has accompanied a continuing expansion of union control over government workers. Today, 43% of them are subject to union monopoly-bargaining contracts, and many are compelled to pay dues as a condition of employment.

Organized labor has a vested interest in seeing the government payroll expand: A larger payroll means more union dues. For the union bosses, bigger government not only resonates with their own political instincts, but means more money in their coffers. Accordingly, bigger government is what Americans are getting.

The union political machine is also the primary reason most state legislatures are unable to implement significant education reforms such as vouchers, which would diminish the number of union dues-paying public school teachers. Even though overwhelming evidence shows that the U.S.'s under-performing, Big Labor-controlled public schools are jeopardizing American children's future, teacher union kingpins funnel millions into political campaigns so that they can maintain the status quo.

To take just one more example, the union political machine is the primary reason that Washington is likely for the foreseeable future to continue imposing heavy disincentives that hinder Americans from shoring up their private savings for retirement and health care, even though Social Security and Medicare are headed for disaster. Big Labor officials demand that taxpayers be forced to pay more and more money into these huge government bureaucracies, which will offer lower and lower benefits to future generations of workers. As long as Federally imposed compulsory unionism remains in place, it will be extremely difficult, if not impossible, to achieve any substantial change for the better on these issues and many others.

Nobel Prize-winning economist Friedrich von Hayek recognized the problem decades ago. He declared that, unless there is a fundamental change in the policies that promote compulsory unionism, other needed governmental reforms will be eternally stymied. Hayek pointed out that "Public policy concerning labor unions has, in little more than a century, moved from one extreme to the other. From a state in which little the unions could do was legal if they were not prohibited altogether, we have now reached a state where they have become uniquely privileged institutions to which the general roles of law do not apply." He was addressing the weakness that then afflicted conservative politicians in Britain, but it certainly applies in this country as well.

Until a few years ago, union lobbyists could secure House passage of virtually any measure they could concoct to expand their coercive power over workers. Right to work supporters often had to rely on a Senate filibuster or, at times, a presidential veto to stem the tide of expanding union power. Congress showed its willingness to vote for the union hierarchy's legislative agenda on issue after issue, whether it was the so-called "motor voter" bill or government-mandated family leave.

Most of the successes of the fight to work movement over the past 45 years have been measured in terms of defensive battles to defeat demands by union officials for more government-granted coercive power. These successful efforts have been numerous and often have received little or no help from the nominally pro-right to work Washington associations representing American business. The following are just a few of the benchmarks of tight to work successes:

* 1965-66--protected the right of states to prohibit compulsory unionism, thus shielding themselves from union coercion embedded in Federal law

* 1970--defeated the Nixon Administration's deal with AFL-CIO president George Meany to install forced dues in the Post Office, which would have paved the way for compulsory dues throughout the Federal government

* 1975--defeated the so-called common-situs picketing bill that would have returned total control of U.S. construction to the bosses of organized labor

* 1978--defeated Pres. Jimmy Carter's so-called labor-law reform bill, actually designed to herd hundreds of thousands of additional workers into compulsory unionism

* 1994--defeated the striker-replacement bill, which would have destroyed an employer's ability to resist compulsory unionism for his employees.

Today, 21 states have acted under the authority provided by Section 14(b) of the National Labor Relations Act to protect their citizens from compulsory unionism imposed by Federal law. These state laws have withstood furious repeal attempts by union officials pouring millions of forced-dues dollars into their efforts. These 21 states, to a large extent, have become the engine of prosperity driving the nation's economy. In 1970, just over 25% of private-sector employees worked in tight to work states. By the beginning of the 1990s, job growth in tight to work states raised this to nearly 35%, and, in the new millennium, it is close to 40%.

People who live and work in tight to work states have a special appreciation for the freedom those laws protect. The job-creating climate of right to work laws has acted as a magnet for workers and, as these states' share of the population has increased, they have become a formidable voting bloc.

States should not need to pass right to work laws to protect themselves from bad Federal labor policy. Furthermore, the reach of state tight to work laws is limited. For example, they cannot protect employees in railroad or airline employment, covered by the Railway Labor Act; employees working on Federal enclaves; or employees of the Federal government. Neither can right to work laws address forced representation, the union's monopoly bargaining privilege.

The National Right to Work Committee's fight against forced unionism is a successful 45-year battle. It has thwarted union officials in their various attempts to make a bad situation worse. It has mobilized Americans who know inherently that it is wrong to fire an individual for refusing to pay dues to any private organization. However, the really big job lies ahead. That task is to get at the root of the problem--the Federal policy that institutionalizes union coercion.

Federal judge Robert Bork summarized the issue more than 30 years ago when he was a relatively obscure college professor: "Our labor law, and the ideology that supports and suffuses it, encourages the organization of employees into fighting groups, and lets the wage bargain depend on the outcome of the fight. The rhetoric of union organization and struggle is the rhetoric of war."

The job now is to attack the Federal legal privileges that have crowned union bosses as political kingmakers. Attacking this entrenched status quo is going to be even more difficult than any previous achievement by right to work advocates.

Existing Federal labor policy was not designed to be evenhanded. It is based on the premise that the public interest is best served by collectivizing working people--through forcibly organizing them into unions. As a result, labor law is written to place the power of government on the side of the union organizer and against the independent citizen. The assumption is that the government must give union organizers whatever coercive powers are necessary to ensure their success in herding employees into collective groups. Even with private-sector unions diminished from their peak numerical strength, under Federal law, 10,000,000 employees still are forced to accept a union as their sole bargaining agent, and 8,000,000 are forced to pay dues or fees totaling $6,000,000,000 a year into the coffers of union bosses.

The above is a broad outline concerning government-granted union privileges and coercive power. To understand the issue further, consider the preamble to the National Labor Relations Act, particularly the opening portion of Section 7, titled "Rights of Employees": "Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities...."

Now what could be fairer than that? The authors of this legislation wrote this passage with the goal of passing off the entire law as a Magna Carta of rights and freedoms of America's working people. That deception was one of the most successful in our nation's history. The quotation above is followed by 21 key words. Employees, the law says, shall have full freedom to enjoy all these rights, including the right to refrain, "except to the extent that such fight may be affected by an agreement requiting union membership as a condition of employment...."

In other words, everyone has the absolute right to refrain, except when the union says he or she doesn't! That exception provides what has to be one of the most cynical exercises in legislative deception on record, perpetrated by politicians who piously proclaimed their devotion to civil liberties while callously kicking employee rights in the teeth. Under the National Labor Relations Act, employees have full freedom of choice, except that they don't have any freedom where compulsory unionism is concerned. They will be fired from their jobs if they refuse to support an unwanted union. So much for freedom of choice.

One of the tactical problems right to work organizations face today is that some of the supposedly conservative Republicans who have belatedly signed on to the fight against union abuse steadfastly refuse to attack this vital exception to employee freedom. They want to preserve the language stating that employee freedoms are subordinate to "agreements requiting union membership as a condition of employment." Instead, they are pushing regulatory schemes, often labeled "paycheck protection," designed to use bureaucratic rules to attack the very abuses that grow out of that simple exception. In other words, they want to keep compulsory unionism intact while trusting bureaucrats to regulate its consequences. The National Right to Work Committee is fighting for legislation to repeal the handful of NLRA and Railway Labor Act provisions that authorize forced union dues and fees in the first place.

Taking to the courts

Another front in the fight against forced unionism is in the courts. That battle is led by the committee's sister organization, the National Right to Work Legal Defense Foundation. Since the formation of the foundation in 1968, America's workers whose rights have been violated by compulsory unionism have had an organization dedicated solely to providing them with free legal assistance.

Although the nation's labor law remains heavily stacked in favor of union organizers and against employees, the foundation is making steady progress in the courts, restoring a measure of balance. Perhaps the best-known case fought by the foundation was that of telephone lineman Harry Beck. He and his foundation attorneys labored for 12 years through lower courts and legal red tape to make one request of the Supreme Court--that his wages not be confiscated by union officials to be spent on political activities with which he disagreed.

The Court's decision in Communications Workers of America v. Beck was an important victory for worker freedom. In Beck, a 5-3 majority vindicated the right of working Americans to refuse to pay forced dues for politics, lobbying; public relations, extra-unit litigation, union organizing, and more. A special master appointed by the trial court found the union could only prove that 21% of Beck's dues were used for purposes permitted under its reading of the law. This fact entitled Beck and his co-plaintiffs to a refund of the remaining 79% of the money that union bosses had illegally seized from their paychecks.

Even though the Supreme Court has spoken clearly on this issue, union bosses have instituted an array of schemes and machinations designed to skirt the Beck decision. In 1998, the foundation triumphed again before the Supreme Court in Air Line Pilots Association v. Miller, a case aimed at closing one of the loopholes that unions had attempted to create in Beck. Union officials had established phony "arbitration" schemes to block the full impact of the Beck decision, requiring workers to go through a prohibitively expensive and time-consuming process to challenge the amount of the fees they are forced to pay. The Court, however, ruled that union officials could no longer make such kangaroo-court proceedings a prerequisite to genuine court action.

The foundation also prevailed in 1998 against another union-boss scheme that demands annual worker objections to the use of their forced dues for politics. In International Association of Machinists v. Shea, a unanimous Fifth Circuit Court of Appeals in Texas ruled that union requirements for an annual renewal were "designed only to further the illegitimate interest of the [union]."

Although the foundation has established a number of important Supreme Court precedents protecting the rights of workers, organized labor's hierarchy continues to use its political power to evade and defy those rulings to the fullest extent it can. That is why a regulatory, bureaucratic approach--like the enactment of good-sounding, but toothless, "paycheck protection" laws that have unsuccessfully attempted to solve the problem of forced-dues politicking--is doomed to fail.

The special coercive privileges enjoyed by union officials under Federal law have enabled them to amass a degree of political power that no other special interest comes close to matching. Their power to dictate public policy is out of all proportion to the number of persons whose views they truly represent. Whatever your concern--whether it be taxes, education, health care, the economy, or myriad other issues that need addressing--you can be assured that the propagation of the statist, anti-freedom position is being funded largely with union money, essentially seized from workers.

There is not much about which I and most Big Labor bosses would concur, but the late AFL-CIO president Lane Kirkland once said, "I have slowly come to the conviction that we might be better off if we deregulated labor legislation--just simply did away with the NLRB, did away with the Taft-Hartley Act, did away with all of it." In this instance, I couldn't agree with him more.

Reed E. Larson is president, National Right to Work Committee and National Right to Work Legal Defense & Education Foundation, Inc. This article is based on a Hillsdale (Mich.) College Center for Constructive Alternatives Seminar, "The Rules of Law and the Permanent Campaign."

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