All Commentary
Thursday, November 1, 1984

A Reviewers Notebook: Opportunity or Privilege?

In his Opportunity or Privilege: Labor Legislation in America (Bowling Green State University, Bowling Green, Ohio, 43403: Social Philosophy and Policy Center, 97 pp., $6.95), Charles W. Baird states his theme in an uncompromising first sentence. American unionism, he says, took a wrong turn with the passage of the National Labor Relations Act (the Wagner Act) in 1935.

The Wagner Act, though it has been amended throughout the years to mitigate its compulsory features, put government coercion behind union majorities. It did this by granting exclusive bargaining rights to whatever labor group could collect a majority of authorization cards. Minorities of dissenting workers were thus bound by decisions which, conceivably, they might disapprove either wholly or in part.

In Baird’s opinion this violates the basic axiom of natural rights theory, the axiom of self- ownership. Full ownership, he says, implies that a worker is entitled to choose his own agent, or even to employ no agent at all.

Baird’s command of natural law theory is comprehensive. Natural law begins with the right to life. John Locke, the philosopher behind the English Glorious Revolution of 1688, considered it self-evident that there could be no enduring human society if the right to life of individuals were not respected. Such a right must be unalienable. It followed from this that the individual, to support his life, must have a liberty that includes the right to acquire property. Hence the Lockean triad: life, liberty and property. Jefferson, for his own reasons, substituted “pursuit of happiness” for the word property, but he and the other Founding Fathers who wrote the American Constitution and the Bill of Rights considered the right and opportunity to acquire property a most important part of the happiness chase.

A right, in Baird’s analysis, must be the same for all people. Each person has his natural human rights “simply by virtue of the fact of being human.” If such rights are inalienable, they can never be justly denied by government, even one set up by majority rule.

Entitlements for Some at the Expense of Others

What used to be clear about the nature of rights became confused when politicians began to talk about such things as freedom from want and fear. In their attempts to abolish such wants, they began to pass laws that have more recently become known as “entitlements.” To feed or house citizen X in case he couldn’t provide for himself, it became necessary to seize some of citizen Y’s substance, either by taxation or inflationary manipulation of the money supply. This was an invasion of Y’s right to equal treatment. It was a denial of his property right, of his right to use his substance to pursue happiness in his own way, and as such it curtailed his liberty. In extreme cases, as in Soviet Russia and Red China, it could infringe his right to life itself.

The pattern followed in our labor legislation, as Baird shows, is part of a larger picture of denial of what made us distinctive as a nation. Our labor legislation is only one type of government favoritism toward one group of people over other groups and individuals.

This particular labor favoritism began with the Clayton Act, which exempted labor unions from the an. titrust provisions of the Sherman Act. But, since the Clayton Act had no effect on the courts, Senator George Norris and Congressman Fiorello LaGuardia came up with a law in 1932 that specifically made so-called yellow dog contracts unenforceable in the courts. Under the terms of a yellow dog contract a worker would promise his employer never to join a union. Baird insists that outlawing the yellow dog contract is an infringement of freedom of contract. As a point of logic, if the right to sign a yellow dog contract is to be denied, the right of an employer to agree to a closed shop contract with a union should be denied too. What’s fair for the goose should be fair for the gander.

The Union Shop

The Wagner Act, coming after the Norris-LaGuardia Act, permitted the closed shop. It did it by denying to employers the right to make their own deals with specific workers. Senator Taft—and Reed Larson of the Right-to-Work Committee after him—tried to tone this situation down. So we now have “union shop” arrangements to permit freedom of hiring with the provision that the newly hired employee will join the union after a short lapse of time. And we have the “agency shop,” which lets the union collect dues from incalcitrants who refuse to join. In twenty states there are local right to work laws. They would not be necessary if our basic labor legislation were to be repealed.

In the thirties our new labor laws were justified as “answers” to what employers had been doing to deny the workers the elementary right of freedom of association. But Baird insists that most of our history of the “wrongs” visited upon the workingman is pure mythology. He cites in support of his own viewpoint the sort of history of the industrial revolution that was popular before Hayek’s Capitalism and the Historians appeared.

Baird can hardly deny there was violence on both sides of the picket line in the nineteenth and early twentieth centuries. Louis Adamic’s Dynamite was not made up of whole cloth. But Baird’s general point, which is that unionism is not what has accounted for the rise in the American standard of living (and the British, too), is well taken. It was capitalism’s superior productivity that brought us our high wages, not striking associations of workers.

Baird is correct, too, when he says it is a root mistake to apply majority rule thinking to labor unions. Majority rule is a political device that permits democracy to work when it comes to electing officials and passing laws. But unions are not governments. If workers want them, they are free to support them. But the unions have no legitimate right to impose decisions on anybody. They have no power to tax.

When unions start spending a portion of their collected dues to support candidates for political of-rice, it is a patent infringement of the First Amendment, which guarantees all individuals the right to use their substance in support of political parties as they see fit. Fortunately the courts are coming to see it that way.

Whether the Supreme Court will, in the foreseeable future, get around to invalidating the New and Fair Deal labor laws is doubtful. But the “right to work” compromise that is now the law in twenty states will spread. And there is a good chance that strikes by public service unions to get out-of-line wages will meet with growing resistance from enraged taxpayers.

In time the Lockean triad will be revalidated across the board. Charles Baird’s book is a valiant blow in a great cause.

  • John Chamberlain (1903-1995) was an American journalist, business and economic historian, and author of number of works including The Roots of Capitalism (1959). Chamberlain also served as a founding editor of The Freeman magazine.