J U N E 1 9 4 0
DURING the past few years more has happened in our country in labor relationships in industry than during all its previous history. It is high time we took stock, got our bearings, adjusted ourselves to new conditions, looked our labor problem in the face, and saw just what has to come next.
Here are a few things that have happened. Gone are the days of labor spies, company police, anti-union coercion, black lists, strikebreakers, yellow-dog contracts, and injunctions to enforce them upon workers who, as a condition of employment, had agreed not to join any labor union. Strikebreaking gangs of thugs and blacklegs, assembled by professional strikebreakers in industrial warfare, are out. Collective bargaining is in, with nothing to stop it.
The Wagner Act has been found constitutional by the same court which not so many years ago sustained the yellow-dog contracts and approved their enforcement by injunctive relief against breakers of contracts. Labor has organized where it never was organized before.
With many hundreds of thousands of dollars given by established unions for the furthering of the cause of unionism elsewhere, organizers, who for the most part knew nothing about the industries they were organizing, have gone about the country forming unions, and, incidentally, making jobs for themselves in industries whose workers knew as little about union organization, union discipline, or the propriety of keeping union contracts, as a green immigrant of the old days knew about America, the promised land.
See Flashback: Striking a Balance?
The country is full of new unions with green leaders who know practically nothing about how such organizations should be run, with no discipline over their members, no industrial common sense, and a strong tendency to call strikes simply to show how good they are at putting over wage increases even when these are actually calamitous to the country, to the industry, and to their own members. The Chrysler strike of last year is a good recent example. It is estimated that it will take the workers six years to make up, even at the increased wage rate under the new contract, for the $18,000,000 wage losses of a foolish and unnecessary strike beginning with the slow-down, in violation of the then existing contract.
Collective bargaining is no final answer to anything. It is, of course, important, and is now firmly established by law as applied to workers and employers engaged in interstate trade. And everything seems to be interstate trade now, to judge by the Supreme Court's own decisions in affirming the constitutionality and applicability of the Wagner Act, unless that Court shall reverse itself by affirming the ruling of the Circuit Court of Appeals in the recent Apex Hosiery case, now fortunately on its way to the Court of Last Conjecture.
The Wagner Act is, moreover, buttressed by statutes corresponding to it in many of our industrial states. But collective bargaining is a means rather than an end. There is no happy issue unless the bargaining powers now guaranteed by law result in fair dealing, peace, and a decent respect for the rights of other people, including the public and the worker himself, considered less as a conscript in a collective-bargaining war and more as a man who wants to work for his bread and who has a family to support and bills to pay.
Most of us will agree, I think, that, whatever amendments may later be made to the Wagner Act, the principle of free collective bargaining is here to stay. With labor free from its previous trammels, and with its essential civil rights assured by law, the existence of that freedom makes good labor relationship a major prerequisite to successful business operation in a multitude of fields. It requires a new and more difficult approach, with a lot to learn in the Captain's office in far too many American concerns.
Associations of manufacturers who normally get together annually and chant old refrains have for years past behaved about as intelligently on labor problems, including the Wagner Act itself, as did Belial, Beelzebub, and their confreres, whom Milton portrays to us as the leaders of Hell in the First Canto of Paradise Lost. The fallen angels know they are in Hell; they know they are not going to like it; they know they are not going to get out. They do not propose to reform, however, and they expect to resist the new dispensation of light even when they know resistance will be fruitless. The net results of the joint councils of manufacturers, proceeding along like lines of reasoning for many years, have hardly been worth the carfare to the convention. The December meeting of the National Association of Manufacturers showed, however, a better and wiser spirit long overdue.
We should realize that statutory collective bargaining, as we have it today, is for the most part negative in its character. The Wagner Act simply sets down certain things which an employer shall not do, and which he should not be allowed to do, to prevent his employees from bargaining collectively. It defines a series of acts as unfair practices, which obviously are unfair practices in so far as they seek to prevent their employees from organizing if they choose. The employer is forbidden to interfere with, restrain, or coerce employees in the exercise of their right of collective bargaining. He cannot dominate or interfere with the formation or administration of any labor organization, or contribute financial or other support to it.
The thing that the Act aims to prevent is any limitation of freedom of the workers to organize. It stops right there. Whatever responsibility attaches to a labor agreement, how it is to be enforced, what lawless acts of labor are to be prevented, are left to state and federal laws outside the Act itself. It is the right and duty of the states and Congress to fill in such supplementary legislation as may now be required to meet its enlarged area of freedom which has been given to our industrial workers. Some of this supplementary legislation is now under consideration and will be referred to later.
So far as the National Labor Board itself is concerned, it is still on the firing line. A considerable number of the criticisms which have been leveled at the Board itself are due to the fact that Congress has turned over to it an exceedingly difficult task without any chart or compass or rule to guide it: that is, the power to determine what are the appropriate bargaining units to be fixed for collective bargaining; whether the majority rule shall apply to the entire plant; whether craft unions in a plant shall be entitled to separate bargaining power for their group; whether a concern which has half a dozen plants, some of which are strong for the CIO, some for the A. F. of L., and some of which want neither, are to be regarded as one group with a majority in number authorized to dominate the whole. These are all questions which Congress has turned over to the Labor Board to struggle with.
This part of the Act seems to make singularly applicable a saying of Father Divine's which, alas, is applicable to too much of our recent legislation. He says, 'The trouble with this world is that it has got too many metaphysicians who don't know how to tangibilitate.' The absence of 'tangibilitation' on the effective bargaining unit in the Wagner Act has resulted in the Pandora box of evils which are now afflicting American industry. It is one of those matters that require Congressional action and more cogitation on the Wagner Act than has yet been bestowed upon it.
So far as employers are concerned, the Labor Board's general attitude leaves much to be desired. It has definitely taken sides with the union against the employer wherever possible. Moreover, it is likely to do so as long as its records are full of cases of employers who have tried to disregard every protective feature of the Act, to coerce their employees to prevent unions, and to make the Wagner Act unworkable. This attitude of so many employers in the past obviously has had much to do with the attitude of the Board itself. It may be wrong, and a bad policy in the long run, but at least it is understandable.
Nevertheless, there is a distinct limit to the Board's powers. It cannot require industrial chaos to continue. It cannot prevent decent employers from putting their relations with their employees on a workable basis. Where they are observing the requirements of the Act so far as the domination or direction of their employees' bargaining power is concerned, they can safely leave it to the courts to decide how far the National Labor Board can go to prevent free speech by employers to their own employees, or to prevent employers and employees who want no national union from laying down the terms of industrial peace between themselves without coercion or intimidation by the employer, but because both sides want it. When a given industry wants peace under the terms of the Wagner Act, it can get it, and the Labor Board cannot stop it. The trouble so far has been in the main that the employers have not wanted peace on these terms. They must learn to want it and be prepared to get it.
There have been many vicious or dishonest company unions in the past, organized in the days when employers who did not know how to handle their employees as human beings turned the whole nasty business over to so-called Personnel Directors who were, a few years ago, happily engaged in forming illusory company unions of the non-representative type, giving a minimum of actual power to the employees with the emphasis on welfare work rather than on wages or working conditions.
Company unions, more recently devised as a fighting front against the Wagner Act itself, have failed, as 'little steel' learned to its cost through the courts when the United States Supreme Court not long ago refused to interfere with the reinstatement decision of the Labor Board in the Republic Steel case. These company unions can no longer function, and for the best of reasons.
There are plenty of employers, however, who have for years been doing all they could to make their relationships with their workers harmonious and fair, and to afford adequate machinery for maintaining industrial justice. In these cases the derogatory term 'company union' does not properly apply. When such relationships have been established in good faith they should be able to withstand the opprobrious charge of paternalism and still survive as a means of maintaining industrial peace, as the recent overwhelming vote of the Endicott-Johnson employees against either the CIO or the A. F. of L. unions in their plant has clearly shown. A vote is being taken of the employees of the Consolidated Edison Company in New York in which a similar result should be anticipated. If this conflict in the labor world between the national unions continues much further, employees will want company unions of the new type to obtain industrial peace and continued payrolls.
The Labor Board has considered it one of its functions to destroy company unions in every form and on the slightest excuse. The whole attitude has been wrong. It is no part of its business as a Board to create unions, but to see to it that the right to organize is protected, leaving to the employees an untrammeled right to decide.
Today the legislatures in our states and a Congressional Committee in Washington are busily engaged in considering labor legislation to correct defects in the Wagner Act, and to supplement the Wagner Act by state legislation so that the new conditions of freedom of labor in collective bargaining shall cease to result in civil war between unions or unnecessary and unjustified interferences with public order or with the rights of workers or employers.
It is an exceedingly difficult field, because its essential subject matter is the determination of the allowable area of economic conflict -- an area which must exist, and a conflict which must be within proper limits permissible. Most of us are easily irritated at any form of disorder or industrial strife. We are irritated when we see pickets marching up and down the sidewalk featuring in large letters the word 'Unfair.' We do not like to have our convenience disturbed by strikes. We dislike by instinct John L. Lewis, and we are outraged at what his CIO unions have done in sit-down and slow-down tactics; are even more outraged at the A. F. of L. unions and what they did last year at the World's Fair to create international ill-will by practising extortion on the nations who sought to participate. The Fair episode was a particularly unfortunate one. It created a wave of anti-union public opinion which has been extremely harmful to the union cause. Whether the present year will see a repetition of such proceedings remains to be seen. The demands of the theatrical union which recently threatened to prevent the production of the Pageant of America have just been compromised as I write.
We too easily forget that there are good unions, and plenty of them. We too easily take sides, and generally against organized labor. There is a large class of worthy citizens who fall into a category which a distinguished labor leader identified as the 'I-am-for-organized-labor-but ... ' school. If, however, we are calm enough to realize that a considerable part of our present economic distress is due to a long-continued unequal distribution of the earning power of America, and that the lack of unions to formulate and enforce wage demands has had a great deal to do with this, we shall, perhaps, conclude that we do have a stake in the organization of American labor and on labor's side.
No adequate reconsideration of these labor problems can be made without a careful study of at least two major federal laws and their corresponding state replicas. These laws are inter-related. One is, of course, the Wagner Act itself; the other, its predecessor, the so-called Norris-La Guardia Act passed by Congress in 1932. This Act helped labor very much in its economic warfare by greatly modifying the power of the courts to issue injunctions in labor cases. By special rules made applicable to labor disputes it greatly narrowed the field in which injunctions would issue in such disputes. It definitely created industrial war powers previously denied labor organizations. It greatly limited the power of the courts to issue injunctions, and made questions of contempt of injunctive processes questions to be considered by juries instead of by the judge. It gave substantial immunity to the funds of the unions for the acts of their officers or agents, unless those acts have been ratified or definitely authored by the unions themselves. An employer who has to rely for the protection of his industrial and civil rights during a strike on police courts only is seriously handicapped. The police court is the weak spot in the American judicial system. If he has no other means of redress for the lawless conduct of strikers than the customary ten-dollar fines or reprimands normally available in these courts, he is substantially without legal protection. This fact gives a particular importance to the term 'labor dispute' in the Norris-La Guardia Act which handicaps or prevents an employer from obtaining the support of courts of equity by the injunctive process where a 'labor dispute' is involved. Today it is a very broad term.
One of the first questions we have to consider is whether the definition of 'labor dispute' does not need legislative revision both in the Norris-La Guardia Act itself and in similar statutes of some twenty-three industrial states, and in the National Labor Relations Act as well.
Perhaps a few illustrative cases on 'labor disputes' may make this point a little clearer. Here, for example, are some motion-picture houses in New York. They have a definite contract with the motion-picture operators' union to which all their employees belong. There is no dispute between the companies and their operators. However, another motion-picture operators' union places sandwichmen in front of the theatres, advising prospective patrons that this concern does not employ members of their union. An injunction had been issued in the lower court and had been approved in the intermediate appellate court. One of the findings of fact in the case was: 'The sole purpose of the picketing union was to induce the public not to patronize the theatre, to injure and destroy the plaintiff's business, and by pressure and coercion to compel the plaintiff to break its contract with the other union.'
Should this be allowed? Should this be considered a labor dispute? The New York Court of Appeals declared that under the language of the New York statute it was a labor dispute, and that the picketing was lawful.
The United States Supreme Court has held likewise in two cases interpreting the broad language of the federal Norris-La Guardia Act, which declares that the Act applies when the case involves persons who are engaged in the same industry or occupation, or have either direct or indirect interest therein. It says that '"labor dispute" includes any controversy concerning terms or conditions of employment regardless of whether or not the disputants stand in the proximate relation of employer and employee.' Today we have a multitude of employers who find themselves between the upper and nether millstone, between two great labor organizations.
A concern whose employees are all members of a single union, at satisfactory wages and under contract, finds itself held out to its public as an unfair employer. Is this sort of business helpful to the unions themselves? Should the matter be left merely for time to resolve through some amnesty or treaty of peace between these two labor groups, or should it be covered by new law?
The Wagner Act to a large extent, as I have previously stated, creates these conflicts, and, in fact, its major legal and economic problems arise from its own inadequacy. Let us consider some of them. Here, for example, is a business in which the Labor Board has determined what the appropriate bargaining agency shall be -- that is, what union shall be recognized as the sole bargaining agent for all the employees within its scope. The employer has complied with the requirements of the Act in recognizing this agency, and then finds his premises picketed by another union representing a minority of his employees who are dissatisfied with the Labor Board's conclusion. Is such picketing lawful? Or, if it is lawful, should it continue to be so?
There is as yet no decision of the Supreme Court on the interesting question whether, after the Labor Relations Board has determined which union represents the workers, a dissatisfied minority belonging to another union can go on strike against the Board's determination and against the employer. Unless we are prepared to permit this type of economic conflict between the unions to go on indefinitely, with no peace in sight, some legislation on this irritating subject would seem necessary. The continuance of this futile industrial warfare is bad for the entire union cause. The Wagner Act now provides: 'Nothing in this act shall be construed so as to interfere with or impede or diminish in any way the right to strike.' Do these words mean the right to strike against a decision of the Labor Board? This too is a question which the Supreme Court has not yet decided, and the Wagner Act affords no answer.
Should the power to strike exist when the Labor Board has decided against a labor organization as a bargaining unit? The question is not so simple as it would seem. The situation obviously calls for a legislative rather than a judicial answer. It is no part of the business of the courts to have to declare what should be a proper unit for collective bargaining to be applied by the Labor Board, nor should Congress leave the Board itself with no standard to guide it, standing between the devil and the deep blue sea of conflicting types of unionism, in determining a question whose solution is bound to produce resentment whichever way it is decided. We should hesitate long before enjoining the right to strike by minority unions while the Labor Board retains life or death control over them in its present power to determine as it pleases what is an appropriate bargaining unit. This question has been implicit in a great part of the nearly two thousand elections the Board has been called upon to supervise, involving some six hundred thousand workers.
From the employer's standpoint the whole business is one protracted headache. He can, under the law, take no initiative of any kind, and must simply sit by and see his business impeded, his production retarded, and his harassed employees more absorbed in labor politics and collective-bargaining alignments than in turning out a full day's work. Another matter that may reasonably be considered at the present time is whether, in view of the very large extensions now given to the right to organize which the Wagner Act provides, and the corresponding increase in the economic power of unions, there should not be some modification of the provisions earlier adopted in the Norris-La Guardia Act on injunctions. Under this latter Act employers are required, for example, on an application for an injunction in a labor dispute, to show that they have exercised every reasonable effort to adjust their difficulties by negotiation with the union or with the aid of the machinery of mediation or arbitration provided by law or in the contract, and they cannot have an injunction if they have failed to do so. Such mediating authorities are now in existence by law in many of our industrial states. Why should not the unions themselves be required to take similar action before striking, so that the facts of the labor controversy may be thoroughly discussed and made public? Unions which refuse to take this course might fairly be considered to be acting arbitrarily, and their failure to accept mediation should make the injunctive process more readily available to employers. The legal machinery by which the injunctive process can now be obtained by employers contains many restrictions which should not exist if it appears that they are dealing with an arbitrary and dictatorial union.
Many of these mediating authorities in our states are doing most excellent work, and are composed of men of high character, without political ambitions, who are endeavoring as citizens to make contributions to industrial peace. They have met with a high measure or success. Moreover, arbitration in labor disputes is increasing as a practice. While compulsory arbitration is, of course, unthinkable, the growth of these mediating services should in time civilize the whole process of industrial wage disagreements so that resort to them in good faith by both unions and employers will be a matter of course; and a time should come soon when those unwilling to accept these services will find themselves in a distinct and less favored class, both from the standpoint of the law and from that of public opinion.
Another question which deserves consideration is whether the so-called 'cooling-time provision' of the English law might not properly be made applicable in this country. It has recently been adopted in Minnesota, apparently works well there, and has been entirely satisfactory to unions, employers, and the public in England for many years.
The right to strike is of inestimable importance to unions, and it cannot be impaired or weakened without great public danger involving the substitution of the Fascist state for the American system of free government. It is a weapon, however, which should not be used recklessly or improvidently, nor as the result of hot blood generated by acrimonious and unsuccessful negotiations. Requiring a short but definite period before a strike occurs might give both sides a chance to cool off and make sounder conclusions, with a possible adjustment found still available.
Neither the 'cooling time' nor the required negotiations with proper authorities should involve any protracted period. There should, of course, be a definite time limit for the negotiation with any stale authority, and further extensions of time only with the definite consent of both parties.
One matter on which legislation is imperative is action to prevent contributions by unions to political parties. Such contribution is not permitted in England except under great safeguards thrown around the union's treasury, which do not exist with us. It is natural for unions which have contributed hundreds of thousands of dollars to the campaign funds of a national party to expect an adequate return. Contributions by corporations were stopped years ago, so that the field of political gratitude should be eliminated. These union contributions are in the same category, and should be forbidden for the same reason.
No more serious question confronts America today than the problem of what to do about labor. The freedom of collective bargaining should, of course, be permitted. This being granted, what are the just limitations upon the use of the collective-bargaining power which the common safety of our country demands in a world at war? How shall we restore the balance by which, in a country still struggling against depressions in industry, order as well as justice can be maintained? Our states are considering these questions.
Four of the great industrial states, Wisconsin, Michigan, Minnesota, and Pennsylvania, normally favorable to labor, have already enacted laws which are considered unfair by some labor unions. Oregon, as a result of a referendum, has adopted a drastic anti-union law. These laws are, however, significant attempts to redress the social balance in favor of industrial order, to prevent labor from erecting a new despotism of its own at the expense of a country which needs a fair labor law and a fair administration of it as an essential part of our conception of industrial justice. No one can question the fact that labor strife has let down the New Deal. The new rights and privileges the New Deal has given to labor unions have been to a very extraordinary degree abused, and industrial recovery retarded. This is bad for all of us.
It is, perhaps, inevitable. If release from economic bondage produces some excesses at the inception of new industrial civil liberty, it affords no just reason for the return to chains. An indiscriminate anti-union reaction is neither desirable nor just. There are too many established labor unions in our country whose history will stand comparison with most of our larger corporations in honesty of management, fair dealing, and industrial common sense to deprive them of essential liberties simply because liberty has been abused by others, to many of whom the very existence of industrial civil rights is a new thing.
Peace aims in the midst of war for survival are not to be reasonably expected. We are now approaching a time, however, when calmer counsels should emerge involving the creation of legal and social instrumentalities not for war but for peace in the labor world.
We cannot afford to permit a labor problem to arise in America such as that which confronted France just preceding the war. John Gunther, in a recent article on Daladier in Current History, says something of France and its labor problems which is peculiarly applicable to us. Speaking of Daladier's predecessor, Blum, and his government, he says: --
It had to face one of the most difficult of all questions: Can a Left government reform capitalism without abolishing it? Can a Left government function efficiently inside a capitalist structure? ... He gave the trade-unionists such privileges and concessions that work almost stopped. The industrial structure all but disintegrated .... France needed airplanes and munitions, yet the government was shortening hours, tacitly encouraging strikes, which made efficient production on a big scale impossible. During the last six weeks of the Blum government, not a single airplane was manufactured in France.This was the French government which had to meet the critical decision of Munich. France was not prepared to fight. The Munich pact became necessary. The world is now seeing its consequences.
Those who are at present struggling with the labor problem of America should have this at least in mind: It must not happen here.
Copyright © 1940 by George W. Alger. All rights reserved.
The Atlantic Monthly; June, 1940; Labor Must Decide; Volume 165, No. 6; pages 758-765
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