In 2016, Virginia voters defeated a referendum, 53–47 percent, to amend the state’s constitution to include a right-to-work [RTW] provision. In Missouri last week, voters passed a referendum by a 2–1 margin overturning a similar law previously enacted by a Republican-dominated legislature and signed by its GOP governor. These popular plebiscites represent a stark turn of fortune for the nation’s labor organizations against the libertarian jurisprudence adopted by SCOTUS [see Janus v. AFSCME, 2018]. Overturning four decades of precedent, SCOTUS determined that one individual’s complaint concerning the possible use of his dues prevailed over the interests of his group. While jurists need not take notice of electoral decisions, politicians do.
The onset of the Industrial Revolution abrogated the medieval guilds and created a labor market untethered to a rural population and a barter economy. This same revolution underscored a new tension in a relationship between the new working class and employers. Economic theorists such as Jean Jacques Rosseau and Adam Smith scripted free market ideas as salvation from poverty and created an economic theology for religions. Waves of immigration across the continent fed capital’s labor requirements. The new worker morphed into an employee at will, working for a wage and living in increasingly expanding and dense urban areas.
Fierce competition and profit propelled owners to secure the least costly labor, in turn intensifying poverty and leading to violent disputes, including the emergence of socialism and communism. On May 15, 1891, Pope Leo XIII issued a papal encyclical entitled Rerum Novarum, which declared socialism and communism as antithetical to liberty and private property. Taking account of the effects of the Industrial Revolution, Leo offered his remedies to stop the continued advance of poverty and proposed, among other things, that workers have a right to organize and agree with employers on wages; the freedom to associate in trade unions and self-governance of trade unions; and that government ought not “thrust” itself into their concerns or organization. To wit:
Let the working man and the employer make free agreements, and in particular let them agree freely as to the wages; … that wages ought not to be insufficient to support a frugal and well-behaved wage-earner. If through necessity or fear of a worse evil the workman accept harder conditions because an employer or contractor will afford him no better, he is made the victim of force and injustice.
The State should watch over these societies of citizens banded together in accordance with their rights, but it should not thrust itself into their peculiar concerns and their organization, for things move and live by the spirit inspiring them, and may be killed by the rough grasp of a hand from without.
The purpose and effect of instituting these basic human rights is:
… the labor of the working class—the exercise of their skill, and the employment of their strength, in the cultivation of the land, and in the workshops of trade—is especially responsible and quite indispensable. Indeed, … it may be truly said that it is only by the labor of working men that States grow rich.
Remarkably, these proscriptions are repeated, albeit in different words, in the Universal Declaration of Human Rights [UN 1948] just over a half century after Leo’s encyclical and subsequently [1966] incorporated into the International Covenant on Economic, Social, and Cultural Rights. Thus Pope Leo’s ideas had now been studied, reviewed, and discussed among the majority of industrial nations and accepted. Three subsequent papal encyclicals up to 1991 reaffirmed Leo’s principles.
With respect to right-to-work, the international community of nations concluded it to be a basic human right along with life, liberty, and the security of person:
–everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment;
–everyone has the right to form and join trade unions for the protection of his interests; and
–right to work includes the right of everyone to the opportunity to gain his living by work which he freely chooses.
Essentially, the trajectory of economic and social thought from Pope Leo in 1891 through the international community accepted RTW as one of an opportunity to work for a wage.
The principles of right-to-work espoused by Pope Leo underscored the purpose of the National Labor Relations Act [NLRA] in 1935. The Act aimed to balance the inequality of bargaining power for those who do not possess full freedom of association or liberty of contract.
Following the New Deal, labor organizations gained enormous membership and influence, which angered business and its Republican representation, culminating in passage of the Labor Management Relations Act [LMRA, or Taft Hartley Act] of 1947. LMRA offered a false libertarianism as its rationale, one contrary to the heritage of Rerum Novarum and purpose of the NLRA [1937]. Passage was accomplished over a veto by President Truman who, in his veto message, stated that the bill was a “dangerous intrusion on free speech” and in “conflict with important principles of our democratic society.” The stage was set for an American right-to-work experience.
But only in America is RTW dedicated to proscribing the capacity of unions to recruit members and receive financial resources to accomplish their purposes. Weirdly enough, federal law allows states to adopt right-to-work laws that make it illegal to require fair share dues—without also freeing unions from the requirement to represent all workers at a union work site. Internationally, right-to-work means pretty much what the words state: every person has a right to work to earn a living. If anything, the American right-to-work version abridges the rights of workers to associate in labor organizations for purposes of pursuing common economic goals available to all workers, whether members of the union or not.
See VoxFairfax post Lawyers United!, July 29, 2018.
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