Can Labor Clean Its Own House?

Dr. Petro is Professor of Law at New York University School of Law and author of the book, The Labor Policy of the Free Society, (New York: Ronald Press, 1957). This article is from an address before the Congress of American Industry of the N.A.M. in New York, December 1957.

The answer is that no one else I can. But before any house can be cleaned, one has to recognize dirt when one sees it; and one needs a broom, mop, water, strong soap, and above all else, the will and the power to clean up. All these things are now lacking, and more. Not only is there trouble about recognizing the dirt. There is even some doubt concerning the identity of the house cleaner, and some people seem to be confused about where to get the cleansing materials.

The house cleaners will have to be the workingmen of the country. The cleansing materials will have to be their own free choice and their right to refuse to join unions or to participate in strikes, picketing, and boycotts. If the workers are to have any success in the ex­ercise of these rights, they are going to need the protection which governments have so far denied them. For the sad condition of the house of labor is the conse­quence, basically, of the fact that governments in this country have been failing to protect the basic rights of free men in the labor field.

The basic rights of free men are the rights of private property and freedom of contract. These rights, when their exercise is pro­tected by government, give men the freedom to control their per­sons and their property. They mean in the labor field that a worker has free access to all employment opportunities; that he may take work whenever the wages and other conditions are ac­ceptable to him; refuse it when they are not. They mean that the worker’s will and inclination pre­vail regarding whether and when he will accept or continue in em­ployment, not the will of anyone else — unless the worker has come to some voluntary agreement on such matters with someone else.

Property and Contract

No man can be called a free man unless he has these rights intact. Unless workers are free men, they will not keep the house of labor clean. As a matter of fact, unless they are free men with the rights of free men, they will be unable to keep it clean. Men who have learned to accept being pushed around, who have been compelled to follow outside decisions on matters affecting their most inti­mate personal affairs and respon­sibilities, are immersed power­lessly in dirt so pervasive that they have trouble remaining conscious of it. They may not even think of cleaning up things. And perhaps they are better off so ; for if by a powerful exercise of imagina­tion and will they should conceive of a cleansing operation, they would be literally incapable of do­ing anything about it, and they might get badly hurt.

For government has not been doing the job for which it was created. Certainly it has not been doing the job in labor relations. We have government committees studying all phases of the labor-management field, except the crit­ical phase — namely, the status of law and law-enforcement. The basic job of government every­where, and particularly in the labor relations field, is to protect and promote the rights of private property and freedom of contract. Our governments have been established in order to do three great jobs: (1) prevent and pun­ish violence, fraud, intimidation, and coercion; (2) protect the per­sonal freedom and the freedom of contract of all persons, including workingmen; and (3) in general, make men secure in their persons, properties, and opportunities. In a word, we expect government —and government undertakes — to prevent some people from pushing others around.

Failures of Government

Trade-union leaders and busi­nessmen are undoubtedly guilty of a good many kinds of antisocial conduct. Their transgressions, however, are insignificant when compared with the failures of gov­ernment. Established to protect private property and freedom of contract, our governments have themselves been guilty of some of the worst forms of expropriation and interference with freedom of contract — not only, but especially, in labor relations. Conceived es­sentially in order to maintain the peace — to prevent and remedy vio­lence and coercion — government has abdicated that responsibility to a great degree.

Government has taken away from workers one of the most valuable aspects of their property and contract rights. It has told them that they cannot make their own employment contracts. A worker has to accept the dictate of a governmental agency as to his "appropriate bargaining unit." Once he finds himself in this ar­bitrary grouping, he is forced to give up his right to bargain for himself, if a majority of the em­ployees in that grouping so will it. Indeed, if he has been vigorous and sturdy in his objection to the union chosen by a majority, he is more than likely to find himself in a very bad way. But he will be unable to do anything about it be­cause the government authorized to protect his property and con­tract rights has expropriated him.

There is no likelihood that such a man will have any influence on the way the union is run. An or­ganization which can control a man’s activity against his will is not going to be very solicitous about him. He will have to tread very softly if he wishes to tread at all. Not much house cleaning can be expected of him. All that can be expected is that, if condi­tions become absolutely intolerable for him, he will go away. When such men have no alternative but to go away, there are left only people who, as a whole, have very little stomach for house cleaning, if, indeed, they can even recognize dirt when they see it. When our people in government get seriously concerned with doing their job in labor relations, they will want to repeal the expropriation inherent in the appropriate-bargaining-unit and majority-rule principles.

Violence Goes Unpunished

Government action in the labor relations field cannot be taken seriously at all, either, until our duly constituted authorities begin acting straightforwardly, vigor­ously, and courageously against violence in labor disputes. There is no excuse whatsoever for the practically universal failure of government agents to do this part of their work. Governments are absorbing about a third of the na­tional income, and I understand that there are over seven million nonmilitary federal, state, and local employees. In the absence of the most cogent evidence and argu­ment to the contrary, one may therefore insist that we are spend­ing enough to entitle us to expect basic protection against brutality, violence, and intimidation in labor disputes.

This is not a matter upon which reasonable minds may differ; everyone is against violence in labor disputes. Again, there are no difficult or complicated techni­cal problems; it is necessary only to prevent masses of people from gathering at a strike-bound plant. It should be a great deal easier to limit picketing to one or two per­sons than it has been to disperse the rioting people in Little Rock. So far, however, our governmental authorities have been dismal fail­ures. A more or less futile court order after violence has occurred is the most that one can expect. As things are now going, an em­ployer can count himself lucky if he doesn’t have to pay unemploy­ment compensation when union violence discourages people from working!

Any talk about a clean house for labor is absurd and ridiculous un­til violence and the conditions in which it breeds are extirpated. Peace and order bring one kind of person to the fore; violence and intimidation are the conditions in which another kind of character flourishes. The point doesn’t need any further emphasis.

What cannot be overemphasized is the failure of government to en­force the basic and sensible laws of the land, federal and state. Both federal and state laws forbid all kinds of economic coercion in labor relations. Employers are prohib­ited from coercing workers in regard to their choice of unions. Unions are equally prohibited. The Taft-Hartley Act and the laws of many states, when properly under­stood and interpreted, declare that unions may not force membership upon unwilling employees through the use of economic pressures. This means that such plainly coer­cive measures as stranger picket­ing — that is, picketing by a trade union which represents none of the employees of the picketed establishment — compulsory-union­ism contracts, and all boycotting techniques are forbidden.

Compulsory Membership

It is a well-known fact, how­ever, that the administration of law leaves untouched most of those forms of union coercion. As a consequence, one may conclude with confidence that the unioniza­tion which we have known for the past ten years or more has been, to a considerable extent, coerced unionization : employees have been compelled, the national labor poli­cy to the contrary notwithstand­ing, to accept unions not of their own choosing.

It is necessary to distinguish between the antiunion coercion of which employers are guilty and the coercive methods of organiza­tion pursued by unions. No one doubts when an employer fires or threatens to fire a man for join­ing a union, that the employer is violating the law. Moreover, there is little doubt that the NLRB will prosecute such cases and, if there is any evidence at all of antiunion coercion, hold the employer guilty of an unfair practice. In fact, in the current investigations of the Senate Committee on Corrupt Union and Management Practices, the Committee is to a considerable extent merely raking over cases in which the NLRB has found employers guilty of unfair labor practices.

Organizing Methods

As yet, however, the Committee has not seen fit to inquire into the thousands of cases in which the Teamsters and other unions have been using stranger picketing and various kinds of boycotts as meth­ods of compelling unionization. There cannot be the slightest doubt that stranger picketing and boycotts do involve economic coercion of precisely the same type as the employer’s discharge or threat of discharge. Likewise, there cannot be the slightest doubt that such coercive methods of or­ganization are all clear violations of the Taft-Hartley Act.

Yet for more than ten years stranger picketing, "rovingsitus" picketing, hot-cargo agreements, and a number of other techniques of coercive and compulsory unionization have been in constant use all over the country. The number of employees who have been com­pelled against their will to join unions must be of a very large order of magnitude. And for more than ten years, these coercive organizing methods, though plainly contrary to the law, have been held by the NLRB to be not unlawful.

It is true that in October the NLRB took a small step in the right direction by holding unlaw­fully coercive one narrow and illu­sory category of stranger picket­ing. According to the Board a union violates the law if it en­gages in stranger picketing after it has been defeated in an election, provided that it is unwise enough to say that it is picketing for im­mediate recognition. If the union engages in stranger picketing before it has been defeated in an election, and if it is astute enough to say that it is picketing for or­ganizing purposes — not for im­mediate recognition — then, ac­cording to the NLRB, it may not be guilty of unlawful coercion.

That is a pure case of tweedle-dum and tweedle-dee. There is no basis in the law generally, in the Taft-Hartley Act, or in common sense for the distinction which the Board has drawn. If stranger picketing is economically coercive in any case — as it undoubtedly is — then it is economically coercive in every case; for its methods, objectives, and manner of operation are always the same, no matter when it occurs or what it is called.

One-Way Investigations

Even if the Board had gone the whole way, had held that all stran­ger picketing is unlawfully co­ercive, one might still ask why it is that such a decision came so late. It is more than ten years since the Taft-Hartley Act was passed. During that time, as well as earlier, stranger picketing has been perhaps the most common of all trade-union organizational methods. Furthermore, the lan­guage of the statute has not been changed since 1947. The answer, of course, is that until recently the NLRB has found those parts of the Taft-Hartley Act which define unfair practices of unions to be singularly mysterious and of un­certain reach and intent. Whereas the NLRB found it easy to read the employer unfair practices as proscribing every conceivable type of employer pressure, the identi­cally worded union unfair prac­tices could not, the Board felt, be intended to mean the same thing.

And so, while the Senate Com­mittee has been rehashing in the case of employer "corruption" only conduct which the Board has since the very beginning prosecuted, it has curiously refrained, thus far at least, from inquiring into the methods by which unions are daily coercing the free choice of em­ployees. To put the matter an­other way, it has been preoccupied with the surface manifestations of trade-union corruption — the cheap thievery, double dealing, and the embezzling. It has not been concerned at all with even the deeper manifestations of corrup­tion — the violence and the com­pulsion which underly so much of modern American trade-unionism. More important even than that, the Committee has not revealed any understanding at all of the fundamental causes of both the deeper and the more superficial forms of corruption.

The causes lie essentially, I re­peat, in the errors, failures, and derelictions of government in the labor relations field. Unions have been given special privileges at the expense of the basic rights of employees and employers. While employers have been forced to take a strictly hands-off attitude, and while the contract rights of workers have been vitiated, unions have been given the formal de jure power to control employment and employment conditions, and they have been given the informal de facto power to use violence and economic coercion as means of compelling both membership and acquiescence in union policies, pro­grams, and tactics.

Power Corrupts Leaders

If the house of labor needs cleaning now, it will continue to need cleaning until these failures of government are corrected and until the formal and informal spe­cial privileges of unions are eradi­cated. No human agency can be trusted with the kinds of power which the errors in government have given trade-union leadership. Establish an environment perme­ated with coercion and compulsion and you are bound to attract men who excel in those modes of con­duct. Those who do not excel will either have to learn or make way for men with richer natural en­dowments.

Workers who have become ac­customed to being pushed around, who, owing to the failures of gov­ernments to do their basic job, are used to the rigorous controls of compulsory union methods, are in a position to do very little about cleaning up things. They can do nothing but bear the oppression and exploitation of their leadership. Moreover, it would be ill-ad­vised to expect any real forward-looking action from the leadership.

Let the Market Decide

If union leaders are to be kept in line, they must remain exposed, like everyone else in a free mar­ket, to the loss of their "business" when they do not perform satisfactorily. Instead of making a union the exclusive bargaining representative for all employees in a firm when it has been selected by only some, the law should see that those who object to the union retain their basic right, as free men, to fend for themselves. When men are forced in the first place to join unions, forced in the second place to go along with all plans and programs conceived by their leaders, and forced in the third place to keep their peace if they wish to keep their jobs (and maybe their health) — it is not at all surprising to find a good many trade-union leaders less than re­sponsive to or honest with their membership.

No one should be at all sur­prised either that the Ethical Practices Committee of the AFL-CIO, for all its concern with "trade-union morality," has failed utterly to deal with the violence, the coercion, and the other mat­ters discussed here. If it had dealt with such matters, there might have been a great many more suspensions and expulsions than there have been.

Power acquired by force and subject to no continuing function­al check is bound to corrupt. Cor­porate managements are kept in line by the right of stockholders to move their equities when they are dissatisfied and by the right of consumers and other purchasers to take their patronage elsewhere without let or hindrance when price or quality are poor. If the house of labor is to be clean, the same general principles must be applied there, with the working­men of the nation in the position of stockholders and consumers. It is as absurd to expect good clean unionism in conditions of exten­sive compulsory unionism, as it would be to expect good government in a society where the divine right of kings or the dictatorship of the proletariat was the central political principle.