The Labor Policy of the Free Society
14. Collective Bargaining, Violent Union Action, and the Law
To this point we have been dealing with the more abstract juridical framework of collective bargaining. We have noted a progression whose net result has been to bring within the rule of law the union as an entity, the concept of collective bargaining through employee representation, and the collective contract itself. Perhaps the most interesting and notable feature of this progression is the manner in which legislation in the United States, after an interlude of chaos, has succeeded in putting into effect legal institutions consistent in spirit with those of the common law and of the free market, but which the unaided common law found beyond its powers.
To say that the Taft-Hartley Act represents governmental action of a more interventionist nature than the Wagner Act, however, would be an error. Interventionism means the use of the state’s force to create special privilege; it does not necessarily mean the mere existence of more law. As a matter of fact, it usually means less law and more special privilege. It means, in short, the type of situation which prevailed under the Wagner Act and the Norris-LaGuardia Act. The Taft-Hartley Act gives us more law, but only in the sense that a great institution actually existing in society (that is, unionism) has been made to adhere to the same rules of law which apply to other social institutions.
The Common-Law Background: An Accurate Perspective
The second defect in the Cordwainers case, as cited, relates to the authority of the judge involved. Those contending that early common law in the United States condemned unions and concerted labor activities as such, usually quote the following language from the Cordwainers case: “A combination of workmen to raise their wages may be considered in a two-fold point of view; one is to benefit themselves . . . the other is to injure those who do not join their society. The rule of law condemns both.” Now, as we have seen, the bare decision itself, viewed in the light of the facts of the case, may not be criticized on any basis; and if the judge had confined himself to a statement to the effect that violent interference with the market is unlawful, no one could have said very much about it. It is therefore the language used by the judge, not the decision itself, which is pointed to as symbolic of the unfairness and prejudice of the common law toward organized workers.
When that is done, an entirely different conception of the common-law principles applicable to labor organization emerges. The Massachusetts Supreme Court was acknowledged to be the leading common-law court of the country during the nineteenth century; and of the many notable judges who sat on that court, Chief Justice Shaw was regarded by many as the greatest and the most authoritative. In attempting to reconstruct the common law concerning union organization and concerted action by workers, it is more appropriate to examine Judge Shaw’s opinions than those of a member of the lowest and least influential rank of the judiciary.
Trade-Union Violence: “Government by Injunction” Reconsidered
A true and accurate understanding of what our American judges were doing during the so-called common-law days is impossible without an understanding of the frequent, fundamentally lawless character of union action during that time. Anyone who takes the trouble of reading the reported cases carefully will find either outright violence or a menace of such violence so immediate and so overpowering as to create its virtual presence. A strike would be called. It might be aimed at an understandable, even laudable, purpose: higher wages, the elimination of ugly or dangerous working conditions, even perhaps to check a supervisory employee whose conduct was as detrimental to the interests of the employer as it was damaging to the honest and praiseworthy instincts of the workers. The strike might also have less attractive ends: it might be designed to force the employer to pay higher wages when he simply could not afford to do so without cutting down employment or going out of business; or it might be designed to get for the members of one union the jobs held by members of another union or by employees who belonged to no union.
Once this fact is appreciated it is possible properly to evaluate the character of the outcry by unions and their apologists against the so-called government by injunction which allegedly prevailed during common-law days in the United States. These complaints were so misleadingly phrased as to induce many to believe that the courts were preventing workers from striking against low wages and bad working conditions.
Then, too, it is necessary to understand something about the character of private mass action, especially in earlier days in the United States when police control was even more inadequate than it is today. There is, in short, something of a tradition of mob violence in the United States. We know well the phrase, “take the law in our own hands.” There is the “posse,” the Ku Klux Klan, the vigilantes. The story is told fully and well in the excellent novel, The Ox-Bow Incident. When high feeling is shared among a number of men, when police control is slight, when there is a tradition of mob law, violence is to be expected. And all this applies in labor disputes as well as anywhere else.
The Role of the Law in Labor Disputes
Now the job of the law in labor disputes is not to take sides; nor is it, in a free economy, to say that the economic merits of any particular dispute lie with the organized workers, the unorganized workers, or the employer. Its job is simply to provide the civilized framework within which all the interested parties can peaceably exercise their established legal rights. The law’s job is to secure the right of the organized workers to leave their jobs if they wish, the right of other workers to continue working or to seek work if they wish, and the right of the employer to continue operations by all peaceable and lawful means.
Some will attack this statement by declaring that it presumes the answer and that it hides the real problem. They will say that the real problem concerns the degree to which the law should privilege organized concerted activity which goes beyond a simple strike. There is some merit in this suggestion; it does state the real problem which we face today. Yet the previous formulation of the role of the law contains the answer to this problem when the inner realities of labor disputes are properly understood. For the point is that, all social, psychological, and historical factors considered, the law cannot adequately insure the peaceable solution of the economic problems which cause labor disputes, consistently with the basic rights of all the parties concerned, unless it eliminates the conditions within which intimidation and violence may be expected to occur.
This was the voice and the conclusion not only of good sense and sound psychology. It was something even more important than those admirable qualities: it signified the intelligent and courageous acceptance by the law of its share of the responsibility for preserving civilization. Courts have not always been so courageous or so intelligent.
It is irrelevant to assert that sometimes employers are responsible for the violence which occurs in labor disputes. Employers or their agents may at times have committed the particular act which precipitated violence, but the fact is that had there been no congregation of union men, aimed at interfering with production, there would have been no occasion for any incident of any kind. Another perceptive judge, Judge Henshaw, said many years ago (1909):
Regardless, then, of which party may be responsible in a particular case for the act of provocation, a sensible, acute legal structure will aim at eliminating the conditions which make violence virtually inevitable. When union leaders object to injunctions forbidding all picketing, they are really insisting upon the special privilege to intimidate others. They have been extraordinarily successful.
The Problem of Union Violence in Current Context
The common law and the judicial process are, more than likely, essentially inadequate by themselves to the role of policing labor disputes. Picketing and other forms of congregation at the scene of a labor dispute must be expressly prohibited by legislation; and the legislation must be so clear and unequivocal as to be readily and effectively enforced by police methods. For the job of the law, if it is to serve its purpose in society, is to prevent such inflammatory conduct, not to punish it later, which is the only thing judges can do. Unless picketing is enjoined, a labor dispute is never satisfactorily resolved. For the free market is the only satisfactory social technique for the resolution of economic disputes, and the purpose and effect of picketing are to destroy the free market.
The situation, then, in regard to violent interference by unions, is this: unions continue to have today, despite the existence of clear legislative prohibition, a special privilege under national law to engage in violence. Only in those relatively few states where courts are quick to perceive the realities involved in picketing and other menacing union action does the labor market have the possibility of working in any kind of a free and peaceable environment. Everywhere the picketing-free-speech doctrine and other special privilege are operative to hamper or to preclude entirely a clear-cut and definitive elimination of union violence and coercion.
