[This article was written by Murphey while he was in law school, and was published in the Colorado Springs Gazette-Telegraph sometime in 1958.  He worked part of that summer as a fundraiser for the Colorado Right to Work Committee.  The initiative was defeated in the November election.] 

 

In Support of the 1958 Colorado “Right to Work” Initiative 

 

Dwight D. Murphey

 

            The “Right to Work” is now a live public issue in Colorado.  Heated discussion concerning it will be heard throughout the State between now and November, at which time the voters will decide whether to place a Right to Work Amendment into the Bill of Rights of the Colorado constitution.

            At issue is the question of whether an employee can be denied a job or discharged from a job he may presently hold because he chooses not to belong to a labor union.  Right to Work legislation is designed to do away with the “closed shop” and the “union shop,” the two major forms of compulsory unionism.  Its basic principle is that each employee may choose individually whether or not to join a labor union, and may not be forced into either joining or not joining under fear that he will lose his job or employment opportunities if he does or does not join.

              For many years American law has been virtually unanimous in its declaration that a person may not be denied employment because of his union affiliation.  Right to Work legislation reiterates this principle, but adds a like protection to the non-union worker, saying that a person may not be denied employment because of his lack of union affiliation.  In this manner, it recognizes fully the legal right of a worker to join a union, but grants legal protection to him from economic reprisal if he should choose not to join.

            The proposed Colorado Right to Work Amendment, to be voted upon at the General Election this November, reads as follows:

         No person shall be denied the freedom to obtain or retain employment because of membership or non-membership in any labor union or organization; nor shall the State of Colorado or any subdivision thereof, or any individual, corporation, agent, employee representation committee, or any kind of association enter into or extend any contract, agreement, or understanding, written or oral, which excludes any person from employment because of membership or non-membership in any labor union or organization.

            The issue has come to the fore in American politics during the last twelve years, during which time eighteen states have enacted Right to Work legislation.  The voters in five additional states, including Colorado, are passing on the problem in elections this fall.  The rapid growth of such laws is the result of two conditions, the first being the attempt by labor organizations, during the past several decades, to force compulsory union membership in the form of the “closed shop” and the “union shop,” the second being the lack of federal “preemption” of the field as to legislation concerning compulsory unionism, so that each state is left free to enact its own laws on the matter.  The Taft-Hartley law, which regulates labor-management relations in Interstate Commerce and which was passed in 1946, expressly leaves the “union shop” issue open for solution by the individual states, although at the same time it outlaws the “closed shop.”

            The Colorado Right to Work Amendment would eliminate both the “closed shop” and the “union shop” from commerce conducted within the boundaries of the state.  It would provide for the “open shop” in all Colorado industry.

            Under the “closed shop,” only union members are hired, the hiring been done ordinarily through a union hiring hall.

            Under the “union shop,” non-union workers may be hired, but must join the union within a specified time, usually thirty or ninety days, or lose their jobs.

            Under the “open shop,” an employee may obtain and hold his job whether or not he belongs to a labor organization.

            Right to Work laws of the sort now pending in Colorado have two principal effects legally.  They affect the enforcement of union shop contracts and any picketing that is done to force such a contract.  They make a compulsory union agreement between labor and management unenforceable in a court of law, so that a union may not compel the specific performance of a “union shop” contract by going into court and obtaining an order that the employer must discharge all of his non-union employees.  Nor may a union collect damages for breach of contract if the employer under a “union shop” agreement refuses to fire those employees who choose not to join a union.

            Aside from the effect upon “union shop” contract enforceability, Right to Work laws are significant in their effect upon union picketing.  Ordinarily a union may picket and in doing so receive the legal protection of the “freedom of speech” doctrine.  But picketing done for an “improper” or an “unlawful” purpose may be enjoined.  Under Right to Work legislation, picketing done for the purpose of forcing an employer to discharge his non-union employees and replace them solely with union members is construed to be for an “improper purpose,” and hence subject to an injunction.  Most of the cases that have reached the Supreme Courts of the various states having Right to Work laws have involved the restraint of such picketing.

            These are the two main legal effects.  The controversy surrounding the issue, however, stems from the economic and moral ramifications involved.

            The foremost question inherent in Right to Work legislation pertains to an intangible and yet extremely practical matter: the liberty of choice and action.  Shall a man enjoy the entire broad range of opportunity that the private enterprise economy opens up to him even though he chooses not to join a labor organization?  Or must that choice bring upon him a vast limitation of employment opportunity that will deny his access to major portions of the economic system?

            This is the basic issue. Necessarily it is of great practical significance.  The “liberty” issue is not vague and abstract.  It is concrete and real.

            The Right to Work, which is the right to enjoy an unobstructed access to the employment opportunities of the free market, stems from the same liberal tradition that underlies all other American freedoms.  These freedoms are the key to our prosperity, domestic peace, and personal happiness.  Fundamentally, all of our freedoms are premised upon an underlying appreciation for the need for the integrity of the human mind: the view that the mind must be free to consider and to choose, and to accept the consequences of its rationality.

            Mature reflection must show that the entire system of liberty, including economic liberty, expresses this central concept.  It is easy to see in what way Right to Work legislation expresses it.

            Under such laws, each man is to judge for himself the worth of the labor organization that desires him to be a member.

            If he is to belong, it is because he has been persuaded that the union is a good thing for him.

            If he chooses not to belong, it is, under Right to Work legislation, for those who actively support labor unionism to convince him that the union merits his support.  The burden of persuasion is upon those who desire his adherence.

            Though it is not customary to consider the Right to Work issue in such a light, it must be clear that the whole philosophy underlying the freedom of speech, press and religion is now being put to a public test.

            Aside from this, it is to be expected that Right to Work legislation will considerably influence the nature of labor unionism in the United States.  It is, however, difficult to predict the consequences in this regard.  If union membership is entirely voluntary in the sense that no person will lose his employment because of his exercise of choice, labor organizations may respond either by making themselves more and more attractive and reputable or by resorting to pressure, either violent or subtle, to force persons to join.  Either course is possible.

            Which course is taken will depend very much, on the one hand, upon the intelligence and character of the American labor movement, and, on the other hand, upon the degree to which the American public will tolerate the use of substitute forms of coercion.  Since it is impossible to predict the operation of these two variables, it is difficult to forecast—as a factual matter—whether Right to Work legislation will render the unions more or less reputable and responsible.

            But one fact is clear: Right to Work laws establish at least one prerequisite needed for the existence of “responsible” unions.  (Here we are using the word “responsible” in the sense of “responsive to their membership and to public opinion.”)  Such laws go far to place union membership on a voluntary basis.  In turn, voluntary unions tend to be “responsible unions.”

            This matter bears directly upon the question of whether the Right to Work Amendment would strengthen, impair or leave unaffected the strength of labor organizations within Colorado.

            There are many persons who feel that the Amendment is a “union-busting” measure.  Those who hold this view assert that a lack of 100 percent enforced unionization gives the employer a chance to covertly discriminate against union members in favor of those who do not join the union.  They assert also that unions will be weakened because many workers will prefer to remain non-members, not subject to the payment of dues, while letting the union members “carry the ball” for them.

             There is, however, yet another factor to be considered.  It is a factor that contradicts and outweighs those tendencies that the opponents of Right to Work legislation stress.

            It consists in the fact that a voluntary and responsible association tends to recruit far greater support from the American public than does its opposite.  Since as a matter of fact the prevailing public opinion today accepts labor unionism as a rightful institution in our society, it is to be expected that unions will receive great public and individual support if they adopt more and more a mantle of respectability and service.  This bears directly upon their future strength.  If this is so, it would appear reasonably certain that over the long run labor organizations in America will be stronger if they are voluntary than if they are compulsory.

            There exists in Colorado today controversy upon a further question that is related to the questions of union responsibility and union strength.  There is considerable disagreement concerning the effect that Right to Work laws have upon the height of wages in the economy.

            Statistics are cited by both the proponents and opponents of the Amendment, the former attempting to prove that such legislation does not lower wages, the latter wishing to demonstrate that lower wages do result.  Unfortunately, both analyses lack a sound theoretical foundation.  Since it is known that multiple economic variables combine together to establish a given wage level, it is senseless to correlate merely one of those variables—Right to Work legislation—with changes in the wage rate for the purpose of asserting that the fluctuation is the effect of that variable alone.  To do so is to ignore the other known contributing or offsetting factors.

             Obviously, the effect upon wages must be determined by some other form of reasoning.

            A look at the inherent nature of capitalism will provide us with the answer we seek.  Such a look will produce what would today seem to be a most startling conclusion.  It will affirm—contrary to the almost universally accepted opinion—that the standard of living of the American worker would not be appreciably changed even by a total disappearance of labor unionism, and hence would not be significantly altered by Right to Work legislation even if such a law should—contrary to all reasonable expectation—prove in fact to be a “union busting” measure.

            Certainly this conclusion is startling today.  But is it sound?  We will see that it is.

            The foremost characteristic of the free market economic system is that it engages in a “mass production” of goods for sale in mass markets.  Capitalism is not known to center its attention upon the manufacture of luxury items intended for the consumption of a few very wealthy persons.  But while this is commonly recognized, it must be understood that “mass production” can mean nothing more or less than “mass consumption.”  It is the man-on-the-street who forms the “mass market” to which private enterprise sells.  As the productivity of the economic system rises, principally through the use of new inventions, the accumulation of capital equipment, and the better training of skilled workers, more and more goods and services become available for consumption by the man-on-the-street.

            It is this increased consumption resulting from the general rise in productivity that constitutes the increased standard of living of the American worker.  It is this that forms the substance of any increase in “real wages.”

            In Economics, this is known as the “productivity theory of wages.”

            This view, which seems incontestable, asserts that the economic betterment of the American worker depends upon the productivity of the economic system and not upon whatever pressures a labor organization can bring to bear upon management to raise wages.

            It is true that today most every increase in wages appears on the surface to be the direct result of union activity.  But collective bargaining is in contemporary America the institutional medium through which wages are set, and every increase in our standard of living is thereby bound to be at least the ostensible result of collective bargaining, even though other independent forces of massive stature are present and operative to produce the result.

            For this reason it is unsound to ascribe to labor organizations the economic effects that are today so commonly imputed to them.  Reason tells us that the American standard of living depends upon American productivity and that this in turn depends upon inventiveness, capital accumulation and education.  It follows that to the extent that labor unions augment or detract from our productivity they increase or decrease the real wages of American workers.

            The Right to Work Amendment in no way tends to decrease productivity and the ultimate consumption of goods and services by the American public.

            It cannot therefore be said to have injurious effects upon wage levels.

            Numerous other questions arise in connection with Right to Work laws, but a short article cannot pretend to cope with them all.  It is thought that the outstanding issues have been discussed here.  In connection with these, the following conclusions seem to be justified, if the reasoning given in this article has been sound:

            1.  The Right to Work Amendment is designed to eliminate the “union shop” and place industry on an “open shop” basis.

            2.  The Amendment protects the freedom of choice as to union membership and thereby reflects the philosophy of historic liberalism.

            3.  The Amendment establishes a necessary part of the legal and economic environment that will tend toward more responsible unionism.

            4.  The Right to Work principle will in all probability strengthen, and not weaken, the union movement in the United States.

            5.  The Right to Work Amendment will not adversely affect the standard of living of the American working man.