Restoring a Fundamental Freedom

Article excerpt

BOEING IS A GREAT American company. It recently built a second production line--its other is in Washington state--in South Carolina for its 787 Dreamliner airplane, creating 1,000 jobs there so far. Who knows what factors led to its motivation to do this? As with all such business decisions, there were many, but the National Labor Relations Board--a five-member agency created in 1935 by the Wagner Act--has taken exception to this move, ultimately based on the fact that South Carolina is a right-to-work state. That is, South Carolina, like 21 other states today, protects a worker's right not only to join a union, but also to make the choice not to join or financially support a union. Washington state does not.

The general counsel of the NLRB, on behalf of the International Association of Machinists union, has issued a complaint against Boeing, which, if successful, would require it to move its South Carolina operation back to Washington. This would represent an unprecedented act of intervention by the Federal government that appears, on its face, un-American, but it is an act long in the making, and boils down to a fundamental misunderstanding of freedom.

Where does this story begin? In 1935, Congress passed and Pres. Franklin Roosevelt signed into law the National Labor Relations Act, commonly referred to as the Wagner Act after its Senate sponsor Robert Wagner (D.-N.Y.). Section 7 of the Wagner Act states: "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."

Union officials such as William Green, president of the American Federation of Labor (AFL), and John L. Lewis, principal founder of the Congress of Industrial Organizations (CIO), hailed this legislation at the time as the "Magna Carta of labor." In actual fact, however, it was far from a charter of liberty for working Americans.

Section 8(3) of the Wagner Act allowed for "agreements" between employers and officers of a union requiring union membership "as a condition of employment" if the union was certified or recognized as the employees' "exclusive" bargaining agent on matters of pay, benefits, and work rules. On its face, this violates the clear principle that the freedom to associate necessarily includes the freedom not to associate. In other words, the Wagner Act did not protect the freedom of workers because it did not allow for them to decide against union membership. To be sure, the Wagner Act left states the prerogative to protect employees from compulsory union membership, but Federal law was decidedly one-sided: firing or refusing to hire a worker because he or she had joined a union was a Federal crime, whereas firing or refusing to hire a worker for not joining a union with "exclusive" bargaining privileges was federally protected. The National labor Relations Board was created by the Wagner Act to enforce these policies.

During World War II, FDR's War Labor Board aggressively promoted compulsory union membership. By the end of the war, the vast majority of unionized workers in the U.S. were covered by contracts requiting them to belong to a union in order to keep their jobs. Americans, though, were coming to see compulsory union membership--euphemistically referred to as "union security"--as a violation of the freedom of association. Furthermore, the nonchalance with which union bosses like Lewis paralyzed the economy by calling employees out on strike in 1946 hardened public support for the right to work as opposed to compulsory unionism. As Gilbert J. Gall, a staunch proponent of the latter, acknowledged in a monograph chronicling legislative battles over this issue from the 1940s on, "the huge post-war strike wave and other problems of reconversion gave an added impetus to right-to-work proposals. …