The Closed Shop

OCTOBER, 1904

BY CHARLES J. BULLOCK

THE remarkable growth of labor organizations in recent years has brought into public discussion more prominently than ever before the question of the union versus the open shop. Refusals to submit to the indignity of working by the side of “scabs,” violent upheavals caused by the desire to avoid contamination from “ unfair” materials, and earnest demands that public employments shall be closed to all who cannot produce union cards, are some of the aspects which the problem assumes. As frequently as not the collective agreements which are thought to point the way to industrial peace call for the complete unionization of factories or workshops; while, through the agency of the union label, the consumer is invited to place the seal of his disapproval upon the employment of such unclean things as “rat” or “scab” labor.

Historians of the labor movement tell us that in poorly organized trades this dislike of working with outsiders has often seemed not to exist, and that usually an exclusive policy has not appeared until the unions have become large and powerful. This fact is not difficult to explain, because, other things being equal, it is obvious that the fighting strength of a labor union depends upon the comprehensiveness of its membership. While, therefore, it may be inexpedient for a weak union to press this claim, we must expect that every accession of strength will bring into the foreground the contention that only union men shall be employed. In England, according to Mr. Sidney Webb, a few of the strongest organizations have succeeded in making it impossible for independent workmen to secure a livelihood; but in the United States such paradisiacal conditions are probably exceptional, although the demand for a closed shop has become one of the cardinal points of trade - union policy.

Even outside of the ranks of organized labor there seems to exist to-day a considerable body of opinion favorable to the demand. Sometimes this is merely the result of a vague feeling that labor is the under dog, and is asking for nothing more than the trusts have already secured. Not infrequently it is voiced by the socialist, whose passion for Humanity usually stops this side of the despised “ scab.” In other cases it is due to a failure to realize the precise nature and logical consequences of the policy now under consideration. It is, doubtless, upon this last ground that we can explain the conclusion reached by the late-lamented Industrial Commission, that there is, “beyond question, much force in the argument of the union men in defense of their attempt to exclude others from employment.”

In considering the merits of this proposal our argument will proceed upon the full and frank recognition of the right of laborers to organize for the purpose of raising wages or improving in other lawful ways the conditions under which they work. Trade-unions become subject to just criticism only when they endeavor to accomplish illegal or uneconomic purposes, or when they employ improper means of attaining their ends. From this point of view, which at the present day is the only one worth discussing, the two questions to be determined concerning the closed shop are, whether it is in itself a proper object of trade-union policy, and whether it can be secured by proper means.

In defense of the demand for a closed shop it is usually argued that the individual laborer has the right to refuse to work with any person or class of persons who may be distasteful to him, and that what an individual may rightly do, a union, or combination of individuals, may properly undertake. When stated in such broad terms, the argument overlooks certain important qualifications which need to be considered carefully before a safe conclusion can be reached.

So far as the individual laborer is concerned, it is undoubtedly true that a simple refusal to work is a perfectly lawful act. But the mere termination of the employment contract is one thing, and the demand that a fellow workman be discharged is quite another. The former involves nothing but the control of one’s own labor; the latter is an attempt to persuade an employer to have no dealings with a third person whose right to secure employment is thereby invaded. Such an interference with the rights of others is clearly unlawful, unless it can be shown that there is adequate justification for it. If, for instance, the obnoxious man be an incompetent engineer whose ignorance or inexperience endangers the lives of all who work in a mine or factory, a demand for his discharge would be morally and legally defensible. If, however, the demand is based upon the laborer’s political or religious beliefs, no such justification can be shown to exist ; and any one injured in such a manner would be entitled to recover damages from the person who had procured his discharge. Whethernow a refusal to join a trade-union is to be deemed a satisfactory or an insufficient reason for interference with the contract rights of the non-union man will depend upon the view that one holds concerning the desirability of permitting a laborer to enjoy freedom in the disposal of his labor. At present the theory of our law is that this freedom is a highly desirable and important thing, so that it is hard to justify the act of persuading an employer to discharge a non-union man.

But when a demand for a closed shop comes from a combination of laborers, the objections are still greater. In such a case the civil liability for damages continues, while there is the further possibility that the act may constitute a criminal conspiracy. In the eyes of the law there are important differences between an individual and a combination. These are based upon the principle that an individual is responsible only for his overt acts, while in a combination the mere agreement to unite for a certain purpose constitutes an act for which the members may be held accountable. “The number and the compact,” as an eminent judge has put it, “give weight and cause danger;” and it is reasonable and inevitable that, since the power of a combination far exceeds that of an individual, a stricter accountability should be enforced in the one case than in the other. If now it be unlawful to procure the discharge of a fellow workman who refuses to join a union, the consequences of such an act are all the graver when a number of men conspire to bring it to pass.

The decisions of our courts disclose the fact that some difference of opinion exists among our judges. In most of the earlier cases it was held that the attempt of a union to prevent the employment of outsiders, and particularly to secure the discharge of men already employed, constituted an unlawful interference with the rights of others. More recently, however, under the influence of the well-known English case of Allen v. Flood, there have been a few American decisions that admit the right of a combination of laborers to refuse to work with persons who may for any reason be objectionable. But the decision in Allen v. Flood did not relate to a case in which the existence of a combination was established, and, at the most, decided what it was lawful for an individual to do in the course of a labor dispute. In 1901, in the now leading English case of Quinn v. Leatham, the House of Lords made short work of a combination of laborers which attempted to bring about the discharge of a non-union man by establishing a boycott against his employer. While for the United States the question may not be finally adjudicated, it is safe to say that the decided weight of authority is against the legality of the position of the trade-unions in this matter.

Since the ultimate legal rule has not yet been established, the more interest attaches to the economic aspects of the subject, for these, obviously, must exercise considerable influence upon the final course of the law. From the economic point of view the fewest difficulties are encountered in the case of a union that is compelled to fight for the mere right to exist. When employers undertake to close their shops to members of labor organizations, a common device is to discriminate constantly against union men. If new hands are taken on, outsiders are certain to be given the preference; when the force is reduced, members of the union are selected for dismissal. Under such circumstances the organization is likely to disintegrate unless it resists the employment of non-union men. If we grant, as we have done, that laborers have a right to organize, it is hard to criticise a union for meeting discrimination with discrimination. A refusal to work with nonunion men in a shop or factory where discrimination is practiced against the members of the union has neither the purpose nor the necessary effect of establishing a monopoly or infringing the rights of others; the only practicable alternative would seem to be the surrender of what is conceded to be a clear legal right. It may be difficult for the courts to find a difference between such a case as this and the others that constantly arise, but that there is an economic and a moral distinction can hardly be doubted by one who believes that laborers have the right to organize. This has been recognized in the laws which some sixteen states have passed “prohibiting employers from discharging employees for belonging to or for joining labor unions, or from making it a condition of employment that they shall not be members of such unions.” The constitutionality of such a statute has been denied in Missouri and upheld in Ohio, so that we here encounter another legal difficulty that it ill behooves a layman to attempt to settle. But if the right to organize exists and is deemed by the legislature to be important enough to require legal protection, it is hard to see why these laws differ materially from the statutes found in nearly all the states prohibiting employers from interfering with the political rights and privileges of their workmen. More important, however, than the constitutionality of these enactments is the fact that in practice they can be of comparatively little protection to the laborer. Most wage contracts are terminable at any time at the pleasure of either party, and it is not easy to establish by legal proof the precise reason for the discharge of a union workman. Unless, therefore, laborers are allowed to protect themselves under the circumstances now in view, it would seem that they suffer from grievous disabilities under our present law.

But the situation is radically altered when a union undertakes, in cases where no discrimination is practiced by employers, to insist upon the exclusion of all independent workmen from an entire craft or trade. The argument in favor of such a policy has recently been stated by Mr. John Mitchell in the following words: “The union workmen who refuse to work with non-unionists do not say in so many words that the employer shall not engage non-union workmen. The dictum of the trade-union is not equivalent to an act of Congress or of a state legislature prohibiting employers from engaging non-union men. What the unionists in such cases do is merely to stipulate as a condition that they shall not be obliged to work with men who, as non-unionists, are obnoxious, just as they shall not be obliged to work in a dangerous or unsanitary factory, for unduly long hours, or at insufficient wages. Of course, when unions are strong and include all the best men in the industry, this condition amounts to a very real compulsion. The compulsion, however, is merely the result of the undoubted legal right of workmen to decide upon what terms they are willing to give their labor, and the employer is always theoretically and often practically in a position where he may make his choice between union and non-union labor.” It will be observed that Mr. Mitchell candidly admits that the policy may result in “a very real compulsion” both upon employers and upon non-union men. Elsewhere he remarks: “With the rapid extension of trade-unions, the tendency is toward the growth of compulsory membership in them, and the time will doubtless come when this compulsion will be as general and will be considered as little of a grievance as the compulsory attendance of children at school.”

Mr. Mitchell’s honest admission that the demand for a closed shop may result in “a very real compulsion” carries us at once to the heart of the objections that can be urged against it. By this policy a combination of workmen undertakes to determine for all concerned in an entire trade the conditions under which employment must be offered and accepted. This mere statement of the case is sufficient to establish the difference between an individual’s refusal to work and that of a combination. The trade-union undertakes to do a thing which no sane individual could expect to accomplish by his unaided effort, and the purpose of its demand is something that changes the whole character of the act.

The first objection that may be brought against such a policy is that a trade-union which attempts to exclude all outsiders from a craft or industry is seeking to establish a monopoly, and that a combination formed for such a purpose is both legally and economically indefensible. To this charge Mr. Mitchell and others have replied that the union is not a monopoly so long as it opens its doors to all persons who are desirous of entering its trade. Mr. Mitchell, indeed, frankly admits that if “a union is working not for the interest of all the men at the trade, but of the members who at that time are actually in the union, if it is unduly restrictive, prohibiting apprentices, charging exorbitant initiation fees, and excluding capable applicants for membership, then its refusal to work with non-unionists is monopolistic.” Such a case is probably too clear to permit of serious dispute. The Report of the Industrial Commission makes the same qualification that Mr. Mitchell admits at this point.

It may be contended, however, that the policy of an exclusive and restrictive union in enforcing a closed shop does not differ from the regulations enforced by some of the trusts which refuse to sell their goods, or refuse to sell upon equitable terms, to merchants who buy from any possible competitor. In the factor’s agreement these monopolistic tactics have been reduced to a fine art, without enlisting any apparent opposition from many of the people who declaim against the closed shop. That this comparison is well founded does not admit of a reasonable doubt. To refuse to sell sugar or tobacco to a dealer who will not agree to buy from no other source is precisely like the refusal of laborers to work for a person who will not buy all his labor from the trade-union. To refuse to sell upon equitable terms may be a refinement of the process, but it alters in no way the purpose or the effect of the policy. Professor Clark is right, beyond a peradventure, when he contends that such a contract should be taken as conclusive evidence of the existence of monopolistic power and monopolistic intent. Yet the recognition of this fact does not oblige us to approve of the closed shop: it is equally logical to condemn such tactics on the part of either trade-union or trust, and it is to be hoped that the final view of our courts will recognize the similarity and the obnoxious character of both of these policies.

But what shall be said of the trade-union that is not exclusive in the matter of admitting all competent persons who may desire to enter its industry or craft ? In order to avoid an argument about the proper definition of the word, it may be well to refrain from calling such a union as Mr. Mitchell leads a monopoly, and to describe the purpose and effect of the closed shop in other terms. The President of the United Mineworkers admits that the effect of this demand, when it is made by a strong union, is to exert “a very real compulsion” upon both employers and non-union men; and he is too candid to deny that this is one of the purposes that the organization has in view. Leaving the employer out of the reckoning, for the purpose of our argument, it is obvious that this compulsion affects the non-union man in a matter wherein his freedom of action is legally and, it is probable, economically a matter of as much concern to society as the freedom of the unionist to combine for proper purposes. Unless we are prepared to relegate all the laborers in a trade to a condition of status determined by a combination or association known as a trade-union, and to deny the advisability of permitting a worker to choose freely between an individual or a collective contract, we must insist that the compulsory unionization of industry is economically indefensible. Even if the union is not called a monopoly, it is evident that the demand for a union shop leads to the introduction of compulsion into a situation in which it is generally believed that freedom is beneficial.

The trade - unionist, however, will usually deny that freedom to make an individual contract with an employer is advantageous to the laborer. He will contend that the time has come when freedom of individual contract results in the systematic exploitation of the workers, so that the welfare of the laboring classes and of society demands that collective bargaining shall be universally established, by persuasion if possible, by compulsion when necessary. It is argued, furthermore, that since the maintenance of tolerable conditions of employment depends upon the efforts and sacrifices of the trade-unionists, it is only just that the outsiders should be compelled to contribute to the support of the organization. Sometimes, indeed, assuming the attributes of political sovereignty, the unions denounce as “traitors” the recalcitrants who refuse to be gathered into the fold. Thus it appears that the philosophy of the closed shop is based upon the belief that the welfare of the laboring classes is bound up with the device of collective bargaining, that the success of this expedient depends upon its universal application, and that no individual workman can be conceded rights that are inconsistent with the welfare of his class. This, and nothing less, is the meaning of the closed shop.

It must be evident that if the theories of the trade-unionist are correct in this matter, we shall have to revolutionize our present views of economic policy and individual rights. Without, however, considering whether such a change is desirable or possible, it may be demonstrated that, even if the unionist is so far right, it does not follow that it is lawful or expedient for private combinations of laborers to undertake the compulsory organization of industry. Such compulsion is probably illegal in the present state of our law, and should proceed, in any case, from the government, and not from private associations of any character whatever.

For, in the first place, it is practically certain that a domineering and monopolistic spirit will manifest itself ultimately in any private organization that acquires such far-reaching and important powers. This is the inevitable result of human infirmities from which laborers are no more exempt than capitalists. The mere love of power, for one thing, is likely to lead to arbitrary and unwarranted acts of selfaggrandizement; while the still stronger motive of monopoly—hunger — is always present, even if for the moment it may seem to slumber. We have had with us, to be sure, in recent years a considerable number of apologists for monopoly; but their arguments have not yet convinced many people that it is for the public interest to vest uncontrolled monopolistic powers in private hands. Without attempting to compare the possible evils of a monopoly of labor with those resulting from combinations of capital, we may safely conclude that it would be highly dangerous to allow a permanent and all-inclusive organization of laborers to control such matters as admission to a trade, the introduction of improved machinery, and the rate of wages. As a matter of fact it is highly desirable that a trade-union should always be kept upon its good behavior by the knowledge that an unreasonable or selfish policy will drive both employers and the public to seek relief by appealing to the non-union man. Not a few sincere friends of labor organizations are now hoping that the unions may be delivered from the consequences sure to follow the general establishment of the closed shop.

In the next place, even if the fear of monopoly be ill founded, it is reasonably clear that a trade-union is a most undesirable agent to employ in enforcing the compulsory organization of labor. To say nothing of other matters, such as the loss occasioned by strikes, it is certain that when the union goes forth to battle for the closed shop it can hardly avoid arousing some of the worst passions of human nature, even though its leaders studiously avoid all appeals to hatred or violence. When a body of men is told that a “ scab ” has no right to employment, that he is an enemy of the laboring class, and must be compelled to change his ways, the union is playing with edged tools that cannot be handled with safety in the excitement of a strike. From this source arise most of the serious evils that do so much to discredit the labor movement in the minds of law-abiding men and to furnish ammunition to its enemies. If the desirability of compulsory membership is ever to be considered, the question should be decided in another forum, where the passions aroused by the strike will give place to the amenities of orderly political discussion. The plight in which several of our largest cities have recently found themselves should be sufficient proof of this contention.

This brings us to a final, and most important consideration. A little reflection should convince any one that the conditions under which a man shall dispose of his labor are of such exceeding importance to society that, if freedom is to be denied, the restrictions imposed should be determined by the government and not by any other agency. Such regulations should be just, uniform, and certain; they should not be subject to the possible caprice, selfishness, or special exigencies of a labor organization. Here, as elsewhere, we should apply the principle that, when it is necessary to restrict the freedom of labor or capital to enter any industry, the matter becomes the subject of public concern and public regulation. If membership in a labor organization is to be a condition precedent to the right of securing employment, it will be necessary for the government to control the constitution, policy, and management of such associations so far as may be requisite for the purpose in view. Only upon these terms would the compulsory unionization of industry be conceivable. Of course, before such legislation could be enacted, a change in the organic law of the states and the nation would need to be effected,for we now have numerous constitutional guarantees of the right of property in labor. These guarantees include the right to make lawful contracts, and the individual freedom so ordained can be restricted by the legislature only when the restraint can be justified as a proper exercise of the police power. Time and effort might be required for securing such constitutional amendments; but our instruments of government provide a lawful and reasonable method of accomplishing this result.

The object of this article has been not so much to consider the merits or demerits of the closed shop as to explain its purpose and logical consequences. It should be tolerably evident that this demand of the trade-unions would lead to a revolution in our law and our economic policy; whether the prospect of a compulsory regimentation of labor is sufficiently attractive to make such a change desirable is a question into which we shall not now enter. The socialist, of course, would welcome this, or any other, limitation of the rights of the individual. He who wishes to form an opinion upon the subject would do well to study the history of the mediæval guilds, and to examine particularly the influence of these institutions upon individual opportunity and economic progress. This might not enable one to reach definitive conclusions concerning the proposal to organize modern labor upon the mediæval basis, but it would at least furnish a point of departure. It would be worth while, also, to inquire to what extent the guilds were able, even with the sanction of the law, to maintain their monopoly of industrial opportunity, and what methods were employed in dealing with interlopers. Finally, it would be necessary to consider whether modern conditions require mobility or fixity of economic relationships, and whether compulsory organization of labor would meet the demands of the present age. After these things had been determined it would be time enough to speculate about matters concerning which we cannot learn much from present or past experience. Meanwhile, no matter what the ultimate conclusion may have to be, something will be gained if we realize the far-reaching consequences of a decision to pronounce a sentence of economic outlawry upon the non-union man.