The Labor Policy of the Free Society
11. The Law Governing Union Organizational Methods
Common-law rules applied by state courts constitute an interesting and important part of the current law in the United States concerning union organizational methods; but that field of law is at present dominated by federal legislation. According to recent decisions of the United States Supreme Court, the states and their courts and legislatures may, generally speaking, regulate only those labor disputes which are strictly local in character; in other words, those which have no effect on interstate commerce.
Picketing
Picketing has always had an ambiguous legal status in the United States, and the situation is no different under current legislation. Owing to the inherent character of the principles which formed the basis of its operation, the common law could never declare that picketing, as such and in the abstract, was unlawful. It could only find that the specific example of picketing involved in the specific case under consideration was lawful or unlawful on the basis of consistency or conflict with general common-law principles. The Massachusetts view went as far as the common law could in outlawing picketing in the abstract; the New York view went as far as it could in legitimatizing picketing in the abstract. Current federal legislation makes no specific mention of picketing as such, leaving the control of that activity to depend upon its effects and purposes.
The important role which this logic played in the decisions of the New York courts is demonstrated by the facts involved in its abandonment. When positive legislation intervened to prohibit the use by employers of economic coercion in combating unionization, and imposed a duty upon employers to recognize and bargain with majority unions, the New York courts changed their attitude toward at least some types of “peaceful” picketing. At present, the New York courts are in the process of modifying the rules which they had formulated prior to the modern labor relations statutes.
In the federal system, on the other hand, notwithstanding the explicit prohibition of union coercion, and notwithstanding the fact that picketing for organizational and recognition purposes is undoubtedly economically coercive, the stronger tendency is to hold such picketing privileged. As to the physical violence which sometimes accompanies picketing, the common remedy in the state system is an immediate injunction, which is often, when promptly issued, an effective remedy. The immediate injunction is rarely available in the federal system, however, and for that reason the reluctance of the NLRB to make unions pay for the physical harm they do is a factor of considerable importance.
The truth is that control of union coercion has been more effective in the state courts than it has been in the federal system. And it is this fact, not elegant arguments about federalism or philosophical disquisitions about the dominance of the federal government, that accounts for the current movement to oust the state courts of their historical jurisdiction in labor disputes.
Secondary Strikes and Boycotts
Compulsory Unionism
Thus, in regard to compulsory unionism as in the other forms of economic coercion which unions have traditionally used in their efforts to compel unwilling employees to become union members, there is a definite gap between policy and practice, between principle and action. Viewed abstractly, the national legal structure is coherently oriented in terms of free employee choice and the prohibition of all forms of physical and economic coercion by both unions and employers. The ban against economic coercion by employers is both coherently conceived and effectively prosecuted. But the same is not true of the prohibition of economic coercion by unions. As a matter of fact, the most effective union instruments of economic coercion have been left virtually unimpaired by the administration of the law. Unions are largely free under national law to use the coercive weapons of picketing and secondary boycotts as means of compelling employees to become union members. While national law prohibits the closed shop, the fact that this rigorous instrument of economic coercion is available to unions by law in the large industrial states, has had the effect of minimizing the effectiveness of the national law, at least in those states. On the other hand, the Supreme Court’s refusal to permit the state courts to enforce the abstract national policy against coercive picketing and boycotting has created immunity for those activities, owing to the lack of vigorous practical enforcement of that policy on the national level.
