The Fight for Union Security

by LOUIS L. JAFFE

» We read continually about the War Labor Board, but few of us have a clear understanding of the part it has played as an American umpire in one of our toughest ball games.

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LABOR’S demand for union security has put democratic government to the test. “Union security” is a new phrase. It expresses the yearning for certainty which is characteristic of our unsettling times. Among many other devices, it includes the familiar closed shop, under which only union members can be hired, and the variant union shop, which permits the hiring of a non-union man but requires him, upon being hired, to join. Finally, it includes that current and contemned triumph of compromise, “union maintenance,” against which the leaders of industry and the columnists are at present fulminating.

Montgomery-Ward in lofty, expensive protests in the New York Times states that maintenance is the closed shop in masquerade. This is not so. Maintenance requires only that, as a condition of employment, all persons remain members who are members when the collective contract is signed or who thereafter voluntarily join. Non-union men may be hired; non-union men may continue in employment.

Furthermore, in the form ordered by the War Labor Board, members have fifteen days in which to resign before the maintenance of membership clause goes into effect. This is the clause which most of American industry is being ordered to incorporate in its collective agreements with labor. Before Pearl Harbor the Army and the Navy had to enforce it. Since then it has been more or less accepted, but only over a sustained note of passionate protest.

Congress alone, it is argued, can impose such fundamental changes in labor relations. The action, first by the President’s National Defense Mediation Board and then by his War Labor Board, created by mere executive order, is said to be in excess of the authority conferred by either statutes or the Constitution; it undermines the fundamental premises of a government of laws democratically made. There is enough color to these charges to make it worth while to understand the story of union maintenance. It is a great story, charged with significance—a story of the trial of democratic process under the stress of emergency and war.

In a bid for a unified public opinion the President, by executive order, set up the National Defense Mediation Board with authority to mediate labor disputes. Mediation, of course, requires no more of the disputants than that they open their hearts and minds to persuasion. But the executive order authorized the Board to make and to publish “recommendations” if their mediatory efforts failed. A party might incur public displeasure by refusing to accept a recommendation. No other penalty was named.

The Board was organized on a tripartite basis: three public members, four labor, four employer, all appointed by the President. The Board’s professed credo was voluntarism, an appeal to interest and patriotism. Its distinguished chairman, William Davis, was fond of quoting Plato, that “the creation of a cosmos out of chaos is a series of victories of persuasion over force.” He has said recently, “I am firmly convinced that, though you can protect a created situation, perhaps, by force, you cannot create by force.”

The great issue of union security — on which the Mediation Board was to founder—arose early. in a decision later cited against the Board by John L. Lewis, the Board “recommended” that the Bethlehem Steel Corporation, that implacable fortress of the open shop, accept the closed shop in its West Coast shipbuilding plants. The government had induced the workers to limit their wages in a time of rising wages and not to strike. All the shipbuilders except Bethlehem were willing, in return, to agree to the closed shop.

The employer members objected that if the Board forced the closed shop upon Bethlehem it would be creating a legal precedent which, they said, was in excess of its power as a mediator. Not at all, said the labor and public members. In mediation, each case is decided entirely without reference to any other: there is only question of what is fair and what the parties will accept. It was known that Bethlehem would accept the closed shop if it were recommended.

This solution warded off the crisis for a time. It was then that the public members worked out the brilliant compromise of union maintenance. Under this device the employer could not complain that he was barred from hiring good workers who refused to join the union. The only limit was on workers who, being union members at the time of the collective agreement, now wanted to resign. The employers protested that these devices interfered with the liberty of their workers. Whatever may be said of the union shop, maintenance requires no more of the worker than loyalty to his own choice. On the other hand, the union had given up the right to strike. The strike is its chief weapon, not only for enforcing its demands but for maintaining its discipline and extending its membership.

Maintenance was in essence a well-balanced bargain; it froze the status quo. The Board induced a number of employers and unions to agree to it. In a few cases it exerted the pressure of “recommendations” — once against a union which wanted a closed shop. In the fracas at the North American Aviation plant the national officers of the Automobile Workers stood behind the President when he sent in the Army to break the local’s strike. The Board, in justice, granted maintenance to assist the union in restoring the shattered locals. And in other cases where the employer was anti-union it “recommended” the clause. Maintenance, it seemed, was the magic formula to success.

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BUT the Board had reckoned without the deep hostility of big business. The steel corporation had a subsidiary, the Federal Shipbuilding Corporation, which was a party to the Atlantic Coast Zone Standards Agreement. As in the similar West Coast agreement in question in the Bethlehem case, the men had limited their wages and the right to strike. New men without trade-union experience were flooding into shipbuilding and were threatening to swamp the union. This was a case, said the Board, in which the union was entitled to protection. The Federal Shipbuilding Corporation replied that it would rather lose its plant than comply.

Here was a defiance which no talk of voluntarism could gloss. The Board must decide whether its decisions were to be backed up by force. It must decide whether, from the shadowy realm of broker plenipotentiary, it was to emerge into the clear, sharp light of lawgiver. “You have no power to make law,” said the employer members of the Board. But the Board saw only that production must go on; if they were not to strike, the unions must be given something.

The Board, ultimately the President, might have let the issue mature into violence and be carried before Congress. But just here was the crux of the whole matter, the answer to the charge of usurpation, so far as there is an answer. The Congressional forces, or more profoundly the forces which they represented, were at an impasse: a sufficiently powerful group was unwilling to yield to the unions, yet afraid to oppose them openly. If the formal lawmaking organs do not function in crisis, what are the alternatives? Civil war or martial law? The sterile solution of martial law might have been preferred by employers, for it would not have made new labor-relations law. The Board asked the President to take over the plant as a sanction for its decision. If he must take this drastic step, why not do it in accordance with his sense of right? This then, for better or for worse, was the President making law.

At this crucial point John L. Lewis demanded the union shop for the captive mines. These are the coal mines owned by the steel companies. This move was the checkmate of the Federal Shipbuilding case and brought the game to full stop. Mr. Lewis had recently secured the union shop in most of the bituminous coal mines; the steel industry guarded its captive mines lest, losing this pawn, the whole steel industry should succumb. Mr. Lewis insisted that the mineworkers were entitled to the union shop as of right. The Board had recommended arbitration and Mr. Lewis had called a strike. After maneuvers behind the scenes, the President announced that the parties had agreed to submit the case to the full Board for its recommendations, but there was no agreement to accept them.

The Board met in an atmosphere tense with the silent fury of giants at issue. Here it was thrown into the arena hardly knowing whether it was umpire or victim, naked of any equipment for the job — already forewarned that if it decided against the union it would probably decide nothing; and if for the union, the decision would be attributed to fear and coercion. It was a doubtful political judgment which pushed upon it a load so likely to jam its machinery — a judgment symptomatic of a dangerous impasse and failure in the lawmaking organs.

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THE unions and the labor members in earlier cases had always insisted that a recommendation for union security would create no precedent. This, of course, was in answer to the employer argument that the Board was making legal precedents without authority. Now labor and the labor members whirled sharply around and insisted that the Bethlehem case was a precedent which entitled them to a union shop as of right. But they grounded their claims of right more deeply in the situation itself, in their great majorities in the mines (95 per cent in the mines as a whole), in the union shop pattern in all except the captive mines, and in their asserted power by strike to make the pattern universal. It was a powerful case, the facts were overwhelmingly impressive, the spokesman at that time was still the foremost symbol of labor’s force and aspiration.

It was just this overwhelming force which offended and alarmed the Board. If a man is appointed ostensibly to judge and to exercise choice and then is told he has no alternative, he is likely to avoid the ignoble imputation by saying no; and he may believe, not without reason, that he is answering for more than himself. There were alarm and anger at what seemed a defiance of the whole of society. Some of the Board members were disturbed at the implications of monopoly. Because of the isolation of the coal mines, union shop in them would cover practically all the available jobs.

But whether or not on the facts the Bethlehem case was similar, there was this important difference: in the early case the Board could still think of itself as a mediator; it had “recommended” the closed shop because it knew Bethlehem would agree to it. But now that the Army and Navy were used to enforce its decisions, it was in the position of a judge. It must proceed on a principle which justified force. The principle of the Federal Shipbuilding case was that the union, being helpless by reason of the loss of its strike weapon, should be given protection. But John L. Lewis announced proudly that the United Mine Workers needed no protection. And so the Board denied the demand.

All the CIO members of the Board resigned. They believed in mediation, they said, but they found it impossible any longer to place confidence in the Board. The temporary discomfiture of Mr. Lewis no doubt pleased many, but a number of the more thoughtful admirers of the Board were disturbed by the decision. The Board, they said, should have given the union what the union had power to get. The Board had committed a political blunder, since Lewis would in any case take the union shop and it would be better to appear to give it. The President was unwilling to risk a strike and the taking over of the mines by the military. He proposed arbitration, and ultimately Mr. Lewis got the union shop from a Board of Arbitration of which John Steelman, the Department of Labor’s chief conciliator, and he himself were the majority, Benjamin Fairless of Big Steel dissenting.

But the feeling against the decision arose from deeper ground than that of momentary expediency; it expressed the general philosophy that the law represents the underlying equation of economic force; that if the display of force is to be forgone, its probable gains should in justice not be denied. But this assumption is undemonstrable and unworkable. We are sure, of course, that force works in and through government and law, but the only test of ultimate force would be to withdraw government and law and let him win who can. Short of that there is no instrument which measures power, no slide rule which translates a given force into a given law.

It was just this appeal to arms which the Board was to foreclose and of necessity must foreclose by some conception transcending the unknowable dictate of force. A government which as a matter of principle lays itself open to be played upon by the assumed dominant force of the moment will have only fear as its mentor and chaos as its destiny. Force, of course, always lies behind, and if its claims are too completely ignored, it will redress the balance by an appeal to arms; but government and law, particularly as embodied in democracy, seek constantly for ideal conceptions which modify forces toward a mean. Though the Board in its rejection of expediency signed its own death warrant, it evolved a workable principle for the troubled times ahead.

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THE coming of war made industrial peace more urgent but easier to win. The new War Labor Board was sure that the President had power to order any agreement necessary to settle a dispute, and that this power had, by executive order, been bestowed on it. How has this plenitude of power been used? The short and significant answer is that the maintenance clause has become the keystone of its policy. It still refuses the union shop unless it has been won in an earlier free contract. What was worked out as fair in the days of uneasy trial has become the law for the days of sure potency.

But there have been important modifications and extensions. First there is the “escape clause.” This gives union members fifteen days in which to resign before maintenance of membership goes into effect. What is the reason for this clause? The employer members put it to their colleagues this way: “If, as you say, the workers really want to remain in the union, why are you afraid to give them a choice?” The Board at first answered quite simply: “The workers have already made this choice by joining the union.”

The emphasis of the employer members on an apparently democratic concept touched a sensitive point. But more important was the desire to secure the adherence of the employer members to the maintenance policy. The great value of a tripartite board is to win acceptance of its policy from all the affected groups. This can be fully achieved only if there is unanimity. The labor members disliked the escape clause; it might give the employers and rival leadership a chance to break down discipline. But they saw that compromise was justified if a united Board could be secured.

Little use has in fact been made of the escape clause by members. This shows membership satisfaction, though the Board has had to warn against union interference with the right to withdraw. But the employer members, despite the acceptance of the escape clause, have continued their bitter opposition. The old Board had granted maintenance rather gingerly: only a union in very special need of security could get it. What the employer members feared, and what has indeed happened, is that the clause is now granted to any union which represents a majority and is “responsible.” If the leaders countenance a strike in violation of the no-strike agreement, they are “irresponsible” and must wait six months or so before demanding maintenance.

Why should the unions be granted maintenance? In part, no doubt, because they are a powerful force and must be cajoled. But I think the rationale of this piece of lawmaking is more profound. The union is the prime organization through which a majority of the workers seek to realize their strength, to express their total personality as it is involved in the industrial process, to function effectively in the government of industry. Thorstein Veblen long ago indicated that such organization was inevitable. He said: “Those who move in trade-unions are, however crudely and blindly, endeavoring, under the compulsion of the machine process, to construct an institutional scheme on the lines imposed by the new exigencies given by the machine process.”

If the unions feel secure, they can devote their energies to production rather than to campaigning for membership. This is at least the hope of the public members of the Board, as it must be the hope of the public in general. Unions possess the power to coördinate and to organize the efforts of their members; for good or bad, the psychology and the philosophy of the unions may condition the temper of its members and even of the whole industry. This potential the Board is seeking to harness to the public purpose by diverting it from intramural uses. Public recognition of the union and protection of its status entitle the public to demand responsible coöperation with a clear conscience.

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THE country, its survival as a democratic society, as a unique integration, is threatened by hostile forces. To survive, it needs to function superlatively as a going concern. It can do so only if its citizens, those who fight and those for whom there is fighting, rise to the highest levels of technical and spiritual coöperation. But how can there be the necessary cooperatiön when society itself is in transition— when the struggling of farmers, workers, engineers, entrepreneurs, bankers, and members of the professions to establish or to maintain their status is a part of society’s efforts to preserve the older traditions of individualism?

For a breathless moment we were faced with the terrible peril of a stalemate between two of the most powerful organs of our society: the capitalists and the labor organizations. The capitalists appealed to the older tradition of freedom, to the liberty to contract or not as interest dictated, to a structure of relations in which the essential instrument of society was the adventuring individual. Labor appealed to powerful current realities. Depersonalized financial power covered the whole of society with economic units so inclusive, so integrated with each other, that personal adventure was of less and loss relevance either as social motive power or as individual opportunity. Out of this struggle grew the impetus for labor organization as the power of labor to face the power of capital, as opportunity for individual participation and power.

It was and is a situation of fearful danger, because the opposing forces are obstinate and the obstinacy is profoundly reflected in the vital organs of government. Into the breach stepped the President as the delegate-extraordinary of Congress, as commander-in-chief of the Army and Navy, and finally as President of the United States. The National Defense Mediation Board and the War Labor Board created law in part through the preeminent power and claim of the nation symbolized in the President, in part through persuasion.

This law was modest: if the employer was forced to modify the principle of hiring and firing, the new relationship was limited at least to those workers who voluntarily accepted it. Thus the principle of union organization and leadership secured a new level of sanction: to prevail upon the worker to join, the union must rely on its own devices, but this victory would become by force of law its more than temporary acquisition. This was compromise but more than compromise. These Boards took notice of the emerging pattern of the future; they marked out the way according to their half-seen vision of a new order.