Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, December 14, 2012

Catholic Social Doctrine, association, labor . . . and Michigan

In recent weeks, for various reasons, I have dramatically cut-back my consumption of online, TV, and dead-tree news and commentary -- unless it has to do with Duke basketball or Notre Dame football.  I have to admit, it's been great.  I had been overdoing it, and it seemed (and seems) a better response to my disappointment with the election results, and my concerns about their implications, to focus on Advent and coaching fifth-grade basketball.

Among the things I don't miss about the pre-election fire-hose of news-and-opinion -- besides the endless self-affirming and snarky political Facebook posts -- is the all-too-frequent strategic and tactical deployment of (as opposed to conscientious and prayerful engagement with) Catholic Social Doctrine, and the invocation of an (in Catholic teaching) not-warranted distinction between "social justice" teaching and, say, pro-life and religious-freedom teaching.  But, of course, the fact that I'm for the most part ignoring this deployment doesn't mean it is not still happening (yes, yes, on both sides, I know).  Certainly, the debates about the "fiscal cliff", and about the merits of the union-related legislation in Michigan, are providing more occasions and opportunities for it to happen.

Now, in recent months, many Catholic bloggers, thinkers, writers, etc., have been quick (appropriately so, in many cases) to identify and criticize what they regard as mis-uses by conservatives and Republicans of Catholic Social Doctrine and Catholic teaching generally.  They have pointed out, for example, that "subsidiarity" is not reducible to "federalism", or "localism", or across-the-board smaller government (for a great piece on what it is, see this, by Patrick Brennan).  They've pointed out the importance of not confusing "intrinsic evil" with "the worst and most bad things."  And so on.

In some cases, these corrections were important.  That said, I think similar vigilance needs to be exercised with respect to invocations of Leo XIII, Catholic Social Doctrine, the dignity of labor, the freedom of association, Christian moral anthropology, etc., in course of sweeping criticisms of "anti-union" legislation (see, e.g., recent enactments in Indiana, Michigan, and Wisconsin) or overbroad endorsements of Labor's agenda and practice in present-day America.

To be clear:  Civil society matters; the human person is relational and situated; work is a participation in the creative activity of God; all human persons, because they are persons, possess a dignity; workers have a right to associate, organize, and advocate (consistent with public order and the common good) for their interests; and profit-maximization is not a moral-trump.  Labor unions helped bring about many good things; opponents of labor unions have often done bad things.  It would be wrong for a political community to prohibit or unreasonably burden the freedom of association that workers (like the rest of us) enjoy.  In other words, much of what left-leaning Catholics like Michael Sean Winters and Morning's Minion and Lew Daly have been saying about labor-related matters is true.

But . . . just as "subsidiarity" is more than a slogan about "small government", the writing and thought of Leo XIII on the social question and the social order is not reducible to "unionism, as presently defended and advocated for in early 21st century America, is to be supported by faithful, thoughtful Catholics."  It's not that unions were once necessary, but now they are not.  It's that unionism is to be supported by faithful, thoughtful Catholics when it is consistent with, and actually carrying out, Catholic Social Doctrine, and not (or, at least, not necessarily) when it is not.  To resist overreach and bad-acting by unions is, well, to resist overreach and bad-acting; it's not to stomp on Rerum novarum

In my view, it is vital to keep in mind, as we try to think with Christ and the Church -- and not with either the Chamber of Commerce or the Democratic Party -- about union-related policy, to take into account (to the extent we can) the costs and benefits of proposals and practices, and to look at what unions are, and are not, actually doing with the power they have, and not merely to wield a "the Church teaches that unions are good" stamp.  In fact, unions and unionism are sometimes bad (just as religious freedom -- which is good -- is sometimes abused).  

For example:  In the United States, teachers unions are, on balance, definitely not good.  They have, historically, been a powerful force for anti-Catholicism and the obstruction of reforms, including reforms that the Church clearly teaches are morally required.  It is a grave injustice to require parents who want their children to be educated in (reasonably regulated and reasonably well performing) Catholic schools to pay twice (that is, to deny public funding to those parents).  Legislatures should not extend special powers to teachers unions, and they should oppose them to the extent it is necessary to re-orient education-related spending and policy in the best interests of children (and in a way that advances religious freedom and pluralism) and not of public employees who work in government-run schools.  Another point:  It is not good for unions to use workers’ contributions to support political causes – say, abortion rights – that are not relevant to the association’s purpose and mission. 

Finally, whatever the merits of the “closed shop” arrangement might be in the commercial context, it is extremely difficult to defend – indeed, it would seem to violate, rather than advance, the freedom of association – in the public-service and public-education sectors.  Too often, the relationship between legislative majorities, or powerful legislative interests, and public-employee unions is so cozy as to make it difficult to meaningfully describe these unions as part of a healthy civil society.  Indeed, and more generally, a thoughtful and nuanced Catholic approach to these matters would insist on a distinction between the public-employment context and the private-employment context – not because public employees do not have a right to associate (of course they do!) but because they do not have a moral right to use political power to extract excessive benefits for themselves at the expense of third parties (i.e., taxpayers) who are not meaningfully “at the table” of the relevant negotiations.  And so on.

Anyway . . . Go Irish.  And, have a blessed Advent.



Garnett, Rick | Permalink

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When you say "closed shop" I think you mean "union shop." The closed shop has been illegal in the United States since passage of the Taft-Hartley Act.

If unions have shortcomings, the right response is to correct those shortcomings, not to supress trade unions.

Posted by: Kurt | Dec 16, 2012 9:13:40 AM

Methinks I detect some 'burned fingers.'

Unions, for better or worse, are the only way a worker can have equal bargaining power with his or her employer. The individual, acting alone, has zero ability to bargain respecting wages and working conditions. Only the unions stand between workers are the restoration of the era of the Robber Barons and of endless slums where the industrial peasants lived.

Posted by: Edward G. Burton | Dec 18, 2012 12:23:04 PM

It's rather maddening to see so much discussion of Catholic teaching that skirts around some salient things contained in the teaching at issue. I'm not complaining so much of the host of this blog, but of some of what I consider more partisan figures, such as Mr. Winters at the NCR. By partisan I mean, he's a cheerleader for unions and their history. And that's his right; but it's not Catholic doctrine.

The Church teaches that workers have the right to form unions, not that they must affiliate with them. Employers must respect and support the dignity of their employees, including their desire to act collectively; but that doesn't mean he's always wrong, and they are always right.

A largely forgotten detail from Rerum Novarum: Pope Leo XIII proposed unions include employers as members; but he conceded that would be up to the employees. But it's worth bringing up, as well as other aspects of what the Church actually teaches, in order to ask this question: are unions, as we experience them in 2012, what the Church intended to defend?

We might also recall that Pope Leo was specific, in his comments directed to working people, that only those organizations that measured up in particular ways, should enjoy their support. All this seems to go down the memory hole.

I've never found anything from any magisterial document that directly addresses the question of whether a worker, even actually in a minority in a workplace, has the right to refrain from the union activities of the others around him, on any basis. So much of the discussion just assumes that no such worker would ever have any grounds to do so. But it's not hard to envision at all.

Is it fair to coerce a worker's conscience? He find the conduct of the union in his workplace unacceptable. Many reasons might be produced. Something like Right to Work gives him a very useful tool, the same tool people in the pews have when they object to the decisions of their pastors or the hierarchy.

Finally, I will point out that when Pope Leo enjoined workers to consider carefully whether a particular union ought to have their support, how did he envision them to act on his call to decide yes or no?

Do those who oppose Right to Work really mean to suggest the Pope Leo's intention was that workers should be serene in losing their job--without any promise of anything else to support their families--as the legitimate consequence of them finding their union unworthy of their involvement?

I find that hard to believe.

Posted by: Fr Martin Fox | Dec 18, 2012 1:50:41 PM


I don't see how you can make such a sweeping statement. It's certainly true some--many?--employees lack sufficient resources alone in their dealing with their employers; but it's not true to say for all employees.

In any case, who should decide that? When did the Church ever say that a worker should not be allowed to make a decision on his own?

Did the Church ever say that workers who refrain from entering into collective bargaining are bad people?

A little known fact: unions can seek to represent only their members; they aren't required to seek "exclusive" representation, although they usually do seek that, and most likely many employers preferred the tidiness of that. Nevertheless, under our existing law, as construed by the courts, the option of simply not representing non-payers exists. And if the unions sought to refine this legislatively, that would easily pass.

So if the union has the ability to do that, why shouldn't those individuals, who might well be a small minority, or a large one, likewise be able to opt out?

That solves the so-called "free rider" problem.

You (or the other workers in the workplace) may say, they won't be better off; but do you know what's better for them...then they do themselves?

Posted by: Fr Martin Fox | Dec 18, 2012 1:57:27 PM

A little known fact: unions can seek to represent only their members; they aren't required to seek "exclusive" representation, although they usually do seek that, and most likely many employers preferred the tidiness of that. Nevertheless, under our existing law, as construed by the courts, the option of simply not representing non-payers exists. And if the unions sought to refine this legislatively, that would easily pass.

Unions can seek this. However, unions can only obtain it if management consents. And management has stridently resisted this both in filings before the National Labor Relations Board and in attempts at riders to appropriations bills. The U.S. Chamber of Commerce made stopping member only unions one of its top priorities.

Under current law, unions must fairly represent members and non-members even at great expense to the union. A free -rider has the legal right of going to a union steward and demanding representation in a grievence equal to what a dues payer would get even at the cost of thousands of dollars to the union.

Labor has asked for the right to form member only unions and has been blocked by management and the Republican Party.

Lastly, it should be noted that the Catholic Church has never expressed any objection to the union shop. The lay workers at the Holy See have a union shop and in fact, I am not aware of a single unionized Catholic agency where the Church has objected to the union shop.

Posted by: Kurt | Dec 19, 2012 12:41:27 PM


Mark Mix, President of the National Right to Work Committee, is a friend of mine. The National Right to Work Committee has long advocated legislation that would relieve union officials of representing anyone who didn't want to be represented by the union. Such legislation has been introduced in the past. It has been backed by the resources of the Right to Work Committee--which obviously is making headway with Right to Work laws.

If the union officials wanted to, they could get the Right to Work Committee to cooperate on such legislation. Not the Chamber of Commerce; I believe you that they wouldn't like it. But the Right to Work Committee I think would get on board. They've advocated it previously.

So while I don't disagree that "big management" doesn't want it, I am less persuaded that big labor does.

Posted by: Fr Martin Fox | Dec 20, 2012 4:21:04 PM


I realize you may not be able to put your hands on it easily, but I'd be very interested in more information about the riders offered with appropriations bills that you mentioned. It's something I would want to ask my friends at the Right to Work Committee about, given what I posted above.

Posted by: Fr Martin Fox | Dec 20, 2012 4:22:53 PM


That the bishops, or even the pope, haven't objected to a compulsory dues arrangement--assuming that's what you mean--doesn't mean they shouldn't.

And in the case of the Holy See, I rather suspect the union is not funneling significant amounts of dues money into political activity and lobbying for abortion, same-sex marriage, or any number of other political causes. If it were, do you suppose the Holy See might take another look?

In short, the comparison--at least with the Holy See--is not on point with union activity in the U.S.

Posted by: FrMartinFox | Dec 21, 2012 9:46:20 AM

Dear Father,

You have friends at the NRTW Committee???? :)

June 14, 2012, Senate Appropriations Committee, mark-up of the Labor/HHS Appropriations bill (S. 3295). Graham Amendment.

I would also direct you to the Steelworkers vs. Dick's Sportings Goods case before the NLRB, in which the United Steelworkers petitioned for a members only union and the Chamber of Commerce and a host of management and conservative operations stridently opposed the Labor Board allowing a members only union, insisting that it must by law represent those who did not wish to be members.

Posted by: Kurt | Dec 21, 2012 12:39:34 PM

Dear Father,

On the narrow point, my claim is that the Church has no objection to the union shop, per se. I don't see any evidence on your part that there are situations the Church finds unionization acceptable but not a union shop.

I think you have some misudnerstanding of fact about the use of union dues money for political campaign contributions, something that is illegal under federal law and most state laws. Not everything heard on FOX News is true.

Posted by: Kurt | Dec 21, 2012 12:44:36 PM


I appreciate your information, I'll check it out.

As far as using union dues money for politics, I don't have to rely on Fox news. There is a long history there, and while there is no question that the 1988 Beck ruling, along with several others, have repeatedly made clear that compulsory dues are only to be spent for collective bargaining purposes, the fact is that unions clearly are flouting these precedents. There has been a battle ever since over enforcement of these precedents.

What tends to happen, simply put, is that an individual worker challenges the union's accounting, the union protests that it's doing everything by the book, the worker--mindful particularly of massive political activity by the union (which continues through the latest election)--doesn't buy it. The union says, well, you have to sue us. Then it becomes a long, drawn out case of lawyers and accountants and judges...and in case after case, the unions have lost these cases.

But that's a lousy enforcement mechanism: trust me or sue me. But that's how it stands.

Meanwhile, even the Beck precedent doesn't deal with the problem of money used, ostensibly for "collective bargaining," yet used in ways a worker might legitimately object to. The government may not care of a worker believes he's being coerced to fund things that violate his conscience--such as morally objectionable tactics or goals in bargaining, not limited to actual threats and violence--but the Church does. After all, these are issues Rerum Novarum actually anticipates being grounds for workers to refrain from supporting a union.

I don't see any grounds for saying a worker has to get a majority of his fellow workers to agree, before the qualms of conscience should be respected.

It bears some thought: notice how, as a Church, we're fighting to protect the conscience of employers (and employees) regarding compulsory participation in immoral health-care activities (and I agree with that), yet the freedom of conscience of employees regarding compulsory participation in immoral union activities is waived away.

Posted by: FrMartinFox | Dec 21, 2012 2:40:02 PM


Yes, I have friends at the National Right to Work Committee. Why should that be surprising?

Posted by: FrMartinFox | Dec 21, 2012 2:40:39 PM


My point about "the union shop" is that I find no explicit magisterial endorsement of it--despite allowing it in practice--and I find aspects of magisterial teaching with which it conflicts.

I certainly find nothing in Church teaching that says one is a bad Catholic for opposing compulsory dues requirements as a matter of public policy.

Posted by: FrMartinFox | Dec 21, 2012 2:42:42 PM

I certainly find nothing in Church teaching that says one is a bad Catholic for opposing compulsory dues requirements as a matter of public policy.

Nor, by itself would I or the Labor Movement. However, single out worker organizations for action not made for others is objectionable. The NRTW Committee has turned down requests that it not craft its proposed legislation to singularly apply to unions. Law firms and realty companies require their employees to belong to the Bar Association or the National Association of Realtors without a peep from NRTW. And again, the union shop is balanced with the Duty of Fair Representation. So with the Open Shop, there is a complusary tax on union members to finance the activities non-union members, something they fight well find morally objectionable (and to which the Catholic Church does not say they cannot have a moral objection to this.)

Why should that be surprising?

I'm aware of the grave scandal as to how too many of the Catholic clergy have pastorally abandoned the working class over the past generation. I didn't realize it move from abandonment to open opposition to worker organization.

Posted by: Kurt | Dec 22, 2012 1:46:05 PM


The comparison with law firms and realty companies is inapt. Federal law confers on unions a quasi-governmental power that--as far as I know--no laws confer on lawyers or realtors.

So, as far as consistency: if employers were imposing a forced-dues contract on employees, without any sanction of law--namely, the NLRA and related laws--then if the NRTWC still sought Right to Work laws, then you'd be able to argue an inconsistency. But when Right to Work folks would encounter critics from a libertarian point of view, they would answer thus: if we just repeal the coercive provisions in federal labor law, that completes the work of the National Right to Work Committee. If you read the text of the National Right to Work Act, it simply deletes a series of provisions. When the NRTWC used to back a repeal of "exclusive representation," it was the same.

In other words, if you want unions to be able to gain a forced dues contract clause simply through an understanding with the employer--without color of law--I bet the Right to Work folks would take that deal.

Second, I don't accept the identification of "working class" with "worker organization" and, by implication, unions as we actually have them in this country in AD 2012. I'm not even sure the terminology of "working class" is something that I have any obligation to subscribe to; it presumes a mindset I don't agree with. But setting that aside, I don't see that clergy have any obligation to unions, other than to teach what the Church teaches.

Church teaching doesn't give a free pass to unions; they get support--from Church teaching and deserve it from Catholics--only when they meet certain criteria. Do our current unions meet those criteria?

In my own opinion--and it's only mine--they do not. They flunk the test of Rerum Novarum. They are, in my judgment, principally political operations. And as far as Pope Leo's injunction that Catholics only affiliate with unions that are consistent with Catholic beliefs, then they flunk that very badly.

Which unions of the AFL-CIO have spoken out in support of the religious liberty of Catholics regarding compulsory participation in provision of contraception as part of health care? Have they stood up to their own political allies?

Where have they been on abortion? On redefining marriage?

Sadly, both private- and public-sector unions have, for some time, cast their lot politically with partisan causes that are also contrary to Catholic teaching.

Yet Catholics are supposed to support them? Clergy are supposed to support them? Workers are supposed to cooperate with them and pay dues to them, even when their political activities are promoting what the Church teaches is intrinsically evil?

Posted by: FrMartinFox | Dec 23, 2012 1:25:02 PM