Right to Work

What is it? Who has it?

"The right to work," said Mr. Justice Douglas, "[is] the most precious liberty man possesses." Anyone who prizes political liberty will no doubt sympathize with this—for good reason: human life represents the highest value; and without work, whereby we expend our energies to seek and find what is necessary for the continuation of life, this value cannot be realized.

Yet state "right-to-work" laws are frowned upon by many who have been ardent supporters of liberty—for example, by most who call themselves libertarians. The reason for the opposition seems simple enough, also: these laws, which prohibit employers and unions from agreeing to make union membership a condition of employment, are seen as yet another instance of governmental intervention in voluntary human associations.

What is happening here is that the term right to work is being used in two rather different senses. The apparent conflict is not purely semantic, though. At a deeper level, there is a close but complex relationship between the two notions of right to work. When brought out into the light of day, this link suggests that opposition to right-to-work laws is in fact inconsistent with a belief in the right to work as a basic liberty. But there is a caveat: libertarian support of right-to-work laws must be conditional or provisional.

WORKING RIGHTS

What is the right to work?

In a modern industrial society, it is through the complex legal and social relationship known as employment that most people obtain what is necessary for their subsistence. Under this arrangement, the owners of natural resources and the means of production cooperate with the possessors of various physical and mental skills for their subsistence. One party to this arrangement is commonly known as the employer, or management, and the other as employees, or labor; but the relationship they enter into properly represents work for both of them.

Within this context, the "right to work" is merely a specific form of a broader right, that of contract. But the general right to contract and the particular right to work are both widely misunderstood. Just as "freedom to live" has been distorted by the political altruists into a moral and legal entitlement to have others provide for you the necessities of life, so also is the right to work commonly thought of in terms of someone's obligation to give you a job—exactly who being irrelevant, as this is said to be the duty of "society" itself.

This, of course, is poppycock! The right to contract per se—for work or for anything else—is necessarily a joint, or bilateral, right. It exists only when there are two or more potential contracting parties, and it comes into play only when two people mutually agree to certain things; together they then have a right against the rest of the world to consummate and enforce this agreement.

Broken down into its individual components, which is really the more important way of looking at it, the right to contract/work amounts to this: from the perspective of the two contracting parties vis-à-vis one another, one has the right to offer to work or to offer work, and the other has the right to accept. And of equal importance, each also has the right to decline to offer or accept—absolutely, or until and unless certain conditions are met. And since this constitutes the exercise of a right, neither a person's refusal to contract with another, whatever the reason, nor the insistence on certain terms, whatever they may be, can ever be considered a violation of any other right (the principle of the noncontradiction of rights). So an exercise of the right to contract/work can itself never be considered an act of coercion, as that term is used to describe conduct that injures other people in such a way as to justify a forcible response.

Moreover, since law in its essence merely represents a statement of the circumstances under which persons in society, through their various agents, are going to exercise force against individuals within that society, it necessarily follows that the exercise of the right to contract/work as described above should not, consistent with moral reason, ever be made against the law. For as Bastiat put it, "We must remember that law is force, and that, consequently, the proper functions of law cannot extend beyond the proper functions of force." Unfortunately, where the right to contract/work is concerned, this limitation is widely ignored.

In the United States, the right to contract/work, in both its affirmative (offering) and negative (refusing) aspects, is violated on an almost wholesale basis by a plethora of federal, state, and local laws. Hardly any kind of contract has its terms more extensively regulated by law than does that of employment.

A person, for example, who is willing, even eager, to contract to work at a rate below the so-called minimum wage is prohibited from doing so. The result? He or she often ends up with no job at all! Similarly, other terms of the employment contract—hours, mode and method of payment, duration, fringe benefits, retirement options, working conditions, etc.—are often set by law, and the parties simply have no legal option to contract for anything different.

The individual's right to refuse to contract for work is also subject to wide abuse. The private employer is routinely prohibited from making employment choices on the basis of race, color, religion, national origin, physical disability, sexual predilection, or, potentially, for any other reason the Sovereign, in His Majestic Wisdom [sic], might happen to find offensive. Discrimination on these bases may (or may not) be completely irrational, if not morally reprehensible; one only needs, for example, to read Ayn Rand's marvelous little essay on racism to appreciate anew the perniciousness of that kind of thinking. But good or evil, wise or foolish, an employment choice that is made on this basis does not impose that unique kind of harm that, from a moral perspective, justifies a response of force—under the aegis of law or otherwise.

This is why such things as the Dade County ordinance and other so-called civil rights laws are properly opposed—not because Anita Bryant is necessarily right about homosexuals or Governor Bilbo about blacks, but because the right to contract for work includes the right to be "one's potty little self" in choosing one's employees or employer.

And this is the meaning of the "right to work" in its broader sense.

A CREATED RIGHT

What about "right to work" in its statutory sense?

The most prevalent feature of state right-to-work laws is that they prohibit an employer and a labor union from including in a collective bargaining agreement a so-called union security provision—a requirement that all employees become and remain members of the union as a condition of continued employment. These laws create a "right to work" in the sense that an employee or prospective employee who is not a member of the union now has an affirmative right to be hired if the only thing standing in the way of his being hired would be his nonmembership in the union. Right-to-work laws are in this respect analogous to civil rights laws that give blacks or women an affirmative "right" to the jobs that they would have had but for their race or sex.

At first blush it would appear that this form of right to work is grossly inconsistent with the broadly considered right to contract/work. Since an employer and a union, in negotiating a collective labor agreement, should have the liberty to contract for whatever terms are mutually agreeable—including a term whereby the employer agrees to hire only persons who will themselves agree to become and remain members of the union—and since employees have no unilateral right to be hired on terms of their own choosing, it would appear that libertarian opposition to right-to-work laws is fully justified. But it's not so simple as this.

This opposition to right-to-work laws founds itself ultimately on the notion that a collective bargaining agreement, of which union security provisions are but a part, is a "contract" the sanctity of which must be preserved. But there are two difficulties with this premise.

CONTRACTING

First, is a collective bargaining agreement a legitimate contract—a set of promises that the State is justified in using its power to enforce? Clearly, not every promise, when breached, warrants a forcible response. If I say (I "promise") that I will go to town tomorrow to buy a pair of shoes, but don't do so, in the normal instance neither the shoemaker nor anyone else is justified in using force against me, even though he may have been "harmed" in an economic sense as a result of my change of mind. A breach of this kind of promise may mark me as an untrustworthy and irresponsible fellow, but the appropriate sanctions are social rather than legal.

The law is justified in stepping in only when a breach of promise has the effect of wrongfully depriving another of his or her property—using that term in its broadest sense. And this wrongful deprivation takes place only when something of value has been given in return for the promise, this something usually being yet another promise. This exchange—that is, the two promises, each of which has a value separate from the value of the promised conduct itself—gives rise to a true contract, the breach of which justifies a forcible response.

But it is very doubtful that collective bargaining agreements qualify in this regard. Typically, the employer promises to pay the agreed upon wages and maintain certain working conditions for a fixed term. But what does a union, in either its capacity as an agent for the employees or as an independent legal entity, promise in return? Usually nothing, although it is often argued that the union/employees' promise not to strike during the term of the agreement qualifies as such a promise.

But what is a strike, really? And what, then, is the meaning of a promise not to engage in one? This is not as easy to settle as one might think.

STRIKING

It makes sense to view the concept of going on a "strike" from the perspective of those engaging in the activity. What, exactly, are they asserting? Generally, it is not a "right" to dictate their own terms of employment. Rather, to the extent that the strike is directed against the terms being offered by the employer, the striking employees are merely saying, "That is not enough, and you ought to pay us more"—which is the assertion of a moral entitlement, perhaps, but not of a right.

But there is more. Strikers are asserting a conditional right to the job. They are telling the employer and the world at large that a certain job, in the abstract sense, is "theirs" and that no one else can or should fill it, even though they are refusing to fill it themselves until their conditions are met. And in practice, the picket-line aspects of most strikes are meant to prevent the violation of this conditional "right." They constitute thinly veiled threats of force against third parties who would deign to oppose the union. But the "right" asserted by striking employees is certainly not encompassed by the broad right to contract/work nor by any other within the libertarian galaxy.

Granted, this is all very complex, abstract, and thus highly debatable, but this much is clear: going on strike is not the same as simply quitting one's employment, so a promise not to strike is not the same as a promise to remain an employee for a fixed period of time—which would be sufficient to create a contract. And if striking in fact amounts to the assertion of a non-right, backed up by the threat to initiate force, then a promise not to strike does not represent the relinquishment of anything that rightfully belongs to the employees. Since nothing of "value" is being exchanged for the employer's various promises, no properly enforceable contract exists.

The upshot is that, to the extent that right-to-work laws declare that one of the employer's promises—that contained in the union security provision—will not be enforced, these laws are entirely compatible with preserving the sanctity of legitimate contracts. Even more, they are affirmatively desirable as a proper limit on the exercise of sovereign power, for certain promises—promises for which nothing is given in return—definitely should not be enforced by law.

That, then, is one reason why the liberty-of-contract argument against right-to-work laws should be rejected. There is, however, yet another reason, having to do with the second difficulty with the conviction that collective bargaining agreements are contracts to be honored.

CONSENTING

A true contract represents a purely consensual relationship. The parties are free to select their own bargaining and contracting partners; each can choose what it will bargain and contract about; free-market forces determine the "bargaining power" of each party; and the role of the Sovereign is a neutral one, that of insuring that neither party transgresses upon the other in the process of reaching the agreement. Any agreement that emerges from this process is properly considered enforceable.

But as they exist today, most collective bargaining agreements, and the union security provisions that are contained therein, are not consensual in any of these respects! Federal law requires an employer to recognize, as the exclusive bargaining agent of all employees, the union that a mere majority of the employees have selected for this purpose; failure to bargain in good faith (that is, with intent to reach an agreement) with union leaders, however offensive they may be to the employer, is an unfair labor practice. The law, moreover, mandates the topics over which the parties must bargain, and on this list is the matter of union security. Although an employer is not actually compelled to reach an agreement on these terms, the manner in which the law regulates bargaining tactics and techniques makes it difficult for him to avoid agreement without being found to have bargained in bad faith, in violation of law.

As far as free-market forces are concerned, the very purpose of the federal law in this area is artificially to equalize the bargaining power that each party inherently has. Employers are prohibited from asserting their economic strength in a variety of ways, and unions are imbued with powers they would not otherwise possess.

In short, the role of the Sovereign in the negotiation of union security agreements is far from a neutral one. To the contrary, the coercive apparatus of the State is freely used on behalf of unions in their attempts, through union security agreements, to require working men and women to become union members.

Against this background, it is thus anomalous indeed to oppose right-to-work laws on the grounds that they interfere with "liberty of contract." The "contracts" these laws interfere with are almost totally a product of impermissible federal force, exercised in the first instance against employers, but with a detrimental impact being felt by individual employees who are indirectly coerced into joining the union by virtue of a union security agreement. Federal labor laws thus provide yet another example of how the fundamental right to contract/work is currently being violated. And because state right-to-work laws nullify a specific aspect of this coercion—the union security provisions of collective bargaining agreements—they are consistent with the right to contract/work in the broader sense.

CAVEATS

When all is said and done, however, right-to-work laws are not without their decidedly objectionable aspects. One can, for example, question the justification for the right-to-work laws that go beyond merely rendering union security agreements void and impose criminal sanctions upon the parties. It is one thing to say that the State will not enforce a particular promise but quite another to punish the parties to that promise, especially when the party against whom the sanction is most likely to be addressed—the employer—is usually not the one who brought up the matter in the first place!

But more important, even though most collective bargaining agreements are the consequence of federal force rather than of purely consensual processes, state right-to-work laws, which void this coercion, are indiscriminate in their application, tying the hands of the employer who would be quite willing to agree to and abide by a union security agreement. Likewise, many right-to-work laws not only nullify union security agreements as such but also prohibit an employer from unilaterally making union membership a condition of employment. In short, in this context right-to-work laws operate like any other so-called antidiscrimination statute.

In all of these ways, right-to-work laws are inconsistent with the basic right to contract/work. So what is one to do?

The ideal solution to the right-to-work dilemma is, of course, to amend the National Labor Relations Act in a variety of ways and also to reeducate the courts in the necessary elements of a common-law contract. This would render right-to-work statutes not only unnecessary but positively pernicious.

And "if frogs had wings".…Reform of federal labor law to make it consistent with the notion of a truly free society is not going to take place overnight, of course. While working toward this goal, it is important to seize every opportunity, however limited, to neutralize the more coercive effects of existing federal law. Union security agreements, which are almost entirely a product of federal intervention, operate in clear derogation of the fundamental liberties of thousands of workers who would not otherwise support labor unions and their various political and ideological causes. Right-to-work laws free workers from this coercion.

The objectionable aspects of these laws are, on the other hand, of mainly theoretical concern. Few employers, freed from the mandates of federal law, would find it in their self-interest voluntarily to agree to a union security provision or unilaterally impose union membership as a condition of employment. And the imposition of criminal sanctions is rare. True, even isolated instances of coercion are intolerable. But while working toward thorough reform we have to weigh the injustices involved, and the coercion of union security agreements is clearly a greater evil than that of right-to-work laws. And since active support of right-to-work laws necessarily involves exposing the underlying coerciveness of collective bargaining agreements and the federal laws that facilitate them, such support can only be promotive of the long-term advancement of liberty.

Thomas R. Haggard is associate dean and professor of law at the University of South Carolina's School of Law. He has authored various articles and monographs concerning labor law.