The Labor Policy of the Free Society
10. Union Organizational Methods and the Free Choice of Employees
It has become evident in the last few years that one of the great problems in American economic life concerns the methods used by unions in organizing employees. Attempts to hide, to disguise, or to ignore the existence of this problem have failed. Events have demonstrated that the common law’s preoccupation was not, as has so often been charged, mere proof of the class-conscious prejudices of common-law judges against the legitimate economic aspirations of the working population. Instead, it now seems that the common-law judges were concerned with maintaining only the dynamic equilibrium of human rights, and especially the right to be free of coercion and intimidation. For recent legal developments, reflecting profound and widely shared sentiments among all the people, have taken up again the analysis and even the precise approaches of the common law, after an interregnum during which the nation as a whole seemed to have accepted the contentions that the common-law attitude had been misdirected, that in fact unions could do no wrong, and that only the subservience of judges to the arbitrary and unfair principles of “capitalism” stood between employees and universal unionization.
Peaceful Solicitation versus Coercion
The simpler of these categories is that of the noncoercive techniques. Among these may be mentioned the peaceable solicitation of union membership at the place of employment, at the worker’s home, or at a meeting place which may be rented by the union for the occasion. The characteristic element in peaceable solicitation is an appeal to the nonunion employee’s conception of his own interest. In effect, the union organizer tells the nonunion employee that he will be better off if he joins the union. The argument is addressed to the employee and the decision rests with him. In peaceable and noncoercive solicitation, the employee is subjected to no threat of economic or physical reprisal emanating from the union if he rejects membership. He may be told that the employer or the “market” will treat him badly if he does not join the union (just as the employer in the analogous situation may tell him that he will be worse off if he joins the union). But a union oversteps the bounds of noncoercive solicitation if it also asserts, expressly or implicitly, that it will harm the employee physically or economically should he decline to join.
Coercive Techniques: Picketing
The coercive organizational techniques all carry an express or implicit threat of reprisal, in the form of either physical or economic harm; but, unfortunately for analysis, they are very often “mixed categories.” They often combine both physical and economic coercion, and in some instances contain also elements of noncoercive solicitation—a fact which has led to confusion in the law.
The coercive organizational techniques are imbedded in the classic union activities: picketing, secondary strikes and boycotts, and compulsory unionism. Some of these activities may be carried on in a noncoercive manner; but in practice they are usually coercive—physically, economically, or both physically and economically. For example, picketing, a union activity which has created considerable ambiguity in the law, may be analytically subsumed under all the known categories: entirely noncoercive, physically coercive, economically coercive, or any combination of the three. A single person walking up and down before a factory, carrying a sign exhorting the employees to join his union, certainly coerces no one if his conduct actually signifies nothing more than an attempt to secure the attention of the nonunion employees. Such picketing is the simple equivalent of noncoercive solicitation of union membership. But it becomes entirely another thing if it is designed as, or understood to be, a signal which places an embargo around the factory and thus threatens its economic life.
Secondary Action
A study of hundreds of secondary strikes and boycotts in American history, past and recent, makes it possible to present a characteristic example. Employees of one employer refuse to join a certain union. That union represents the employees of a second employer, whose services or patronage are essential to the continued, existence of the first employer. By calling a strike against the second employer, the union thus squeezes tightly the first employer, endangering both his business and, accordingly, the livelihood of his employees. This is economic coercion of a most stringent kind. It might be called economic blackmail or, better, predatory monopolistic pressure.
The secondary boycott is a broader and less well-defined method of imposing the pressures evident in the secondary strike. In fact, the secondary strike may be regarded as a species of secondary boycott. In all secondary action the union seeks to apply coercive pressures indirectly on the primary employer. This is necessary in the nature of things because, owing to its failure to organize the employees directly by peaceable, noncoercive means, the union must work in other ways. In the broad category of the secondary boycott, the union will bring to bear on the primary employer the economic pressures of his suppliers or customers.
Compulsory Unionism
In the United States, compulsory unionism takes four different forms: the “closed shop,” which means that a man may not secure employment unless he already belongs to a union; the “union shop,” which permits an employer to hire a man before he belongs to a union but which compels the employee thereafter to join the union if he wishes to remain employed; “maintenance of membership,” according to which no employee is compelled to join a union, but if he chooses to join is required to remain a member for the duration of the collective agreement; and finally, “preferential hiring,” an arrangement whereby the employer agrees to give first preference in employment to union men. Under each of these conditions economic pressure of a more or less critical nature is exerted, compelling the employee to belong to a union if he wishes to work. Some economic coercion of employee choice exists in even the mildest form of compulsory unionism, maintenance of membership. In the most stringent forms, the closed shop and the union shop, the economic coercion is irresistible. If he wishes to work at the job in question, the employee must belong to the union.
Physical Coercion
Nothing has been said thus far of the second major category of coercive interference by unions in the exercise of free employee choice; that is, physical coercion. It will not do to neglect this category, however. For, while it is true that such coercion is always theoretically unlawful, many forms of physical coercion go unnoticed as such; and in regard to all forms, even the most evident, the law’s methods of prevention and control have often been and still are to a large degree ineffective.
Proper appreciation of the common-law developments regarding union organizational activities requires familiarity with certain other factors. During the common-law period, employers were under no obligation to refrain from economically coercive interference in the organizational activities of their employees. Employers could recognize and deal with unions as they wished, or they could refuse to do so. On the other hand, there was no governmental mechanism by means of which a union representing a majority of employees in an appropriate bargaining unit could compel the employer to recognize it as exclusive bargaining representative of these employees. The principles of free employee choice and majority rule, it will be remembered, were not dominant in the common-law scheme of things.
In consequence, an employer was legally free to refuse to deal with a union representing a majority of his employees, and he was equally free to deal with a union representing none, or only a small minority, of his employees. There was, in short, only one way for a union to secure bargaining status from an employer unwilling to grant such status voluntarily: the union had to apply coercive pressures, physical or economic. It is probable that where a union actually represented a majority of employees, the simple straightforward strike for union recognition was most often utilized. Where the union did not represent enough employees to make such a strike effective, it could secure recognition only by means of the use of the physically and economically coercive methods which have been described here.
The common-law situation was vastly different, however, as regards other methods utilized by unions to gain recognition. But it is necessary at this point to make some general observations about the common law. As known in the United States, the term “common law” means the system of judge-made rules (as contrasted to laws passed by the legislatures) in each of the forty-eight states. Owing to a certain reluctance on the part of the Supreme Court of the United States, our “common-law” system is really uncommon, since it lacks a common head, a supreme court, which would make the courts of the various states conform to a single set of common-law principles. Therefore it is somewhat misleading to refer to a “common law” relating to union organizational activities, or to anything else for that matter, in the United States. To be accurate, one must refer to the common law of a particular state.
In labor relations law it has been customary to use the developments in the federal courts and in the courts of the industrialized states, such as New York, Massachusetts, Pennsylvania, Ohio, New Jersey, Michigan, and Illinois, as a means of illustrating the so-called common law. It will be convenient for present purposes, although not completely accurate, to represent developments in New York and Massachusetts as the conflicting prototypes of the so-called common law concerning organizational activities by unions.
In speaking of current labor relations law, we shall be referring most frequently to the statutory norms established by the National Labor Relations Act, as amended by the Taft-Hartley Act, and the interpretations by the courts of those norms. However, it will be necessary upon occasion to refer also to decisions by state judges which have carried the development of the “common law” forward during the period of the comprehensive labor relations statutes.
