The Labor Policy of the Free Society
16. Collective Bargaining and the Individual Employee
The interests of individual workers are critically engaged in two phases of the collective-bargaining process. The first is the point at which union and employer discuss and come to agreement upon the terms and conditions of employment which are to prevail in the employment unit; at this phase the individual worker’s concern is that the agreement reflect his interests as favorably and equitably as it does those of all other employees in the bargaining unit. The second crucial phase is that of administration and enforcement of the collective agreement; the individual worker is concerned here lest the agreement be administered and enforced, by either union or employer or both, in a manner prejudicial to his equal rights.
If the employer does not wish to or is in no position to defend the rights and equities of individual employees, and if there is reason to fear prejudicial conduct from unions at times, it seems plain that devices are needed which will protect individual employees from arbitrary treatment at the two levels of collective bargaining in which we are interested, the negotiation level and the grievance-processing level. We turn now to a systematic investigation of actual and potential checks upon arbitrary treatment of employees.
The Collective-Bargaining Level
As presently formulated, the rule prohibiting arbitrary discrimination by unions is too broad to be of any real use. Except in those instances of bargaining in which the union represents an absolutely homogeneous group of employees, the collective-bargaining process inherently requires some discrimination. Indeed, there is more reason to fear that unions will fail to discriminate properly as among different categories of workers than there is that they will discriminate too much. This is true especially among complex industrial unions which represent many different categories of workers. During the summer of 1955, for example, in the negotiations between the Ford Motor Company and the United Automobile Workers, tool-and-die-makers represented by the UAW showed considerable dissatisfaction with the collective agreement finally reached, despite the enthusiasm with which that agreement was generally greeted, because it paid insufficient attention to their employment category and allegedly did not maintain suitable rate differentials for their highly skilled work.
Small, highly skilled groups in large and complex industrial unions will very likely find themselves neglected with some frequency—and in circumstances in which it will be impossible to make out a case of arbitrary discrimination against them by their union. After all, how can anyone say that a union has discriminated unfairly in negotiating a ten-cent increase for employees in category A and an eight-cent increase for employees in category B? This type of case, which is likely to recur with much greater frequency than the case of racial discrimination, must be dealt with on the basis of some technique other than the rule prohibiting discrimination by unions.
On the other hand, it should be noted that if bargaining units are to be fractionalized and multiplied even more than they are at present, the harmful potentialities of strikes may be greatly increased; and it may therefore be argued that the rules of the game should be adjusted accordingly. The law might provide either that all collective agreements in a company composed of multiple bargaining units be negotiated simultaneously or that a strike in one bargaining unit be confined to that unit. It is about time that there be introduced into the law the principle that employees in unit A of a given company may not lawfully refrain from working simply because employees in unit B are on strike. Such “sympathetic” action ought to be viewed accurately; it amounts to a secondary boycott or a combination in restraint of trade, and ought to fall within the legal condemnations which cover conduct of that kind.
As demonstrated by the Pacific Intermountain Express case, arbitrary discrimination by unions is not necessarily limited to instances in which the bargaining unit comprehends employees in different work-categories. In that case, it will be remembered, all the employees were truckdrivers; and seniority privileges were geared to length of union membership rather than to length of service with the employer involved.
As it happens, the basic principle of free employee choice proves adequate to resolving the problem posed by that particular type of discrimination. Revolving about the principle of free employee choice, the Taft-Hartley Act, manifesting inherent integrity in this respect, forbids discrimination by either union or employer where such discrimination tends to encourage or discourage union membership. Such a provision logically comprehends a prohibition of one of the two or three greatest menaces to free employee choice, namely, compulsory unionism. And thus the law as it exists at present, inasmuch as it prohibits all the extreme forms of compulsory unionism, is adequate to the task of preventing unions from engaging in the type of thing evident in the Pacific Intermountain Express case. For all cases of that type involve more or less specious attempts to perpetuate unlawful compulsory-unionism conditions.
For those who hold to the view that the political principle of majority rule should be controlling in labor relations and other social affairs, decisions like the one in the Hartley case are likely to create no problems. However, the fact is that the law has long since rejected the monolithic majority-rule conception. It forbids discrimination against nonunion men even in units where a majority of employees are union members; it prohibits discrimination against colored men by unions whose membership is preponderantly white; and, as is widely known, it protects “minority rights” in a number of other ways.
The question in every case of protecting minority rights against the clear desire of a majority is whether the interest of the minority is in some way socially superior to the principle of majority rule. In pursuing this analysis it may be taken for granted that if an employer discharges A rather than B, he does so because in some sense or other A is less valuable in the enterprise than B. We are all aware, of course, that in some instances the employer’s valuation may be erroneous or prejudiced, or that it may even reflect anti-union animus, with A discharged primarily because he is an active union member, while B is not. But in a well-run company errors and prejudices will be kept to a minimum. Continued emphasis upon and study of the science and arts involved in running a business enterprise well may be suggested as the best means of eliminating errors and prejudices in personnel relations; furthermore, insistence upon careful review of questionable lay-offs and discharges is an entirely proper and desirable function of collective bargaining. And as to discharges and lay-offs motivated by anti-union considerations, the law forbidding them is now effectively enforced, and there is no indication that it will be repealed or that enforcement will be relaxed.
We may therefore return to the assumption that lay-offs and discharges will usually be based by the employer upon an evaluation of the relative worth to the enterprise of the employees involved. It goes without saying that, in terms of sheer efficiency, women or unmarried men will in some instances be worth more to a business than married men. And so, if sheer efficiency were the only criterion in lay-offs and discharges, employers would, if permitted, sometimes prefer to retain women and unmarried men. The quite evident fact is, however, that sheer efficiency is by no means a universally acceptable criterion for employers. An informal kind of seniority program, geared to length of service and “loyalty” to the employer, in fact prevails widely. Special circumstances usually obtain whenever an older employee is “passed over,” and a younger one, in point of length of service, is preferred.
The attitude generally prevailing among employers is probably accurately reflected in the common type of collective agreement in which the union and the employer agree that where skill and ability are equal, preferment in regard to promotions, layoffs, rehiring, etc., is to be based upon length of service in the company. That this type of seniority agreement should prevail widely is a fact of no small significance to the present discussion. For this prevalence tends to suggest that even though unions at times insist upon seniority privileges which put minority groups at a special disadvantage, such “unfair” treatment of minorities—whether they be Negroes, women, or unmarried men—is by no means a vital or essential or organic feature of trade-union activity. To put the matter another way, no union can intelligently and in good faith take the position that the power to discriminate against minorities as such is inherently necessary if trade unionism is to survive.
The analysis begins to shape up, then, somewhat as follows. On behalf of permitting unions to discriminate against such minority groups as unmarried men or women, two principles may be advanced: (1) the principle of majority rule; (2) the principle of collective bargaining, which means in this context that unions should be allowed to negotiate freely in accordance with their own policy decisions and that restrictions on collective bargaining should be as few as possible. Against such discrimination one might argue that (1) it represents too great an imposition upon persons who find themselves in a minority and (2) it would unduly frustrate certain profoundly important social processes.
The present problem, it may be suggested, is not one which is solved most intelligently by applying the principle of majority rule. We do not normally allow a majority of producers in any given field to decide which producers shall survive and which shall be discarded; in such areas we rely upon economic rather than political processes. Again, we do not tolerate the destruction of opinions and other intellectual conceptions on a mere nose-counting basis. The problem with which we are immediately concerned is very much like the two just mentioned. Whether or not, in a lay-off, married men should be given preference over single men or women is, from society’s point of view, best determined in largely the same way that we decide which businesses are to survive under rigorous competitive conditions. There are certainly those who will interpose at this point that the social interest is plainly pre-empted by the married man with his family responsibilities. But this is too near-sighted a view of the social interest. The deepest of all social interests is in the progression and perfection of social productivity, in the smooth and effective functioning of the process whereby each individual fits himself into the position in society to which he is best suited and in which he best serves. It is untenable to assert that the social interest begins and ends with the advantaging of some men over others simply because those men have married and begotten. Every man can think of cases in which begetting has done very little for society.
And on the other hand it is not even true that the “equities” are always with the married man as against the single man or the woman. These latter, too, may have exigent personal responsibilities and hopes and dreams. To take the position that the “equities” are always with the married man is simply to be doctrinaire and dogmatic, and very often in error.
As to the contention that the interest in free collective bargaining requires that unions be permitted freely to negotiate the kinds of agreements under discussion, not a great deal of reflection is needed to uncover the deficiency. This is really something like the contention that no interference with freedom of contract should ever be permitted—a contention the inadequacies of which have already been discussed. There is nothing any more sacred about collective bargaining than there is in private property or freedom of contract or any other social institution. The problem in regard to the scope to be accorded all these institutions can never be permanently solved; the solution turns on the merits of each case. In terms of the present discussion, the problem, narrowly framed, is whether the social gain is greater if free collective bargaining be upheld than if, instead, one establish the rule that collective bargaining may not extend to the point where it prejudices minority groups arbitrarily.
Putting the matter this way naturally focuses attention on the problem of defining “arbitrary” conduct by the union. Now, one’s conception of “arbitrary” action by unions is of course determined largely by one’s idea of the proper role of the union. If the union be regarded as a miniature “welfare state,” its role is a wide, practically limitless, one. Just as the welfare state is permitted the power to discriminate limitlessly among citizens on the basis of the conclusion that practically any conceivable “social goal” is appropriately attained through state action, so too the union, conceived as a welfare state in miniature, will be permitted a relatively wide range of action.
On the other hand, if the union be viewed as an institution with rather narrowly limited functions, the tendency will be to limit accordingly the grounds upon which it may discriminate among the employees it exclusively represents in collective bargaining. One will be inclined to say that the union’s power in collective bargaining is exhausted when it has participated with the employer in establishing rules which apply equally to all the human beings, as such, for whom it bargains exclusively. Thus, seniority privileges, or even wage increases, geared to length of service in the particular production unit, would be acceptable subjects of collective bargaining under this approach; whereas the power to require a special advantage to A because he has been a union member longer, because he is a member of the white race, because he is married and has five children, or because he is light-haired and blue-eyed—such a power would have to be denied.
The need for conceiving the role of the union as a substantially limited one is very great, it seems to me. If the free society is to survive, it is in fact tautological to emphasize that the undifferentiated individual person must be put in the most favorable possible position. In the area under discussion this means that he should not be subordinated to the collective group pressures which must necessarily be largely the determinants of union policies. If the free society is to survive, again, it must be constantly concerned with preserving and promoting its productivity. The need for a rigorously conceived role for the union is perhaps most conclusively established by this concern; for the potential effects upon productivity to be expected from accepting a broad view of the role of the union are not encouraging if past performances are any criterion.
The individual employee is no less interested in the administration and enforcement of the collective agreement than he is in its negotiation. He is justified in regarding the most elaborate collective agreement as a mere scrap of paper—a “snare and a delusion,” to use a fresh phrase—if it is not administered fairly and equitably. One of the two or three outstanding, constructive functions which unions perform, or which they can perform when well run, is that of “policing” the collective agreement, of taking every effective step necessary to make employers abide by their agreements. On the other hand, the individual employee must not be thrust into a position where he is obliged to depend upon unions and employers entirely for effective and equitable enforcement of the collective agreement. There is a need here, too, of social support to the individual employee who, without such support, is in a decidedly disadvantageous position in relation to the power aggregates, the large unions and employers, which surround him. One needs only recall the plight of Mr. Sanders in the Pacific Intermountain Express case when he took the position that the union and the employer had colluded in arranging for his discharge.
The probability is that, with certain relatively minor exceptions presently to be noted, the legal structure in relation to the enforcement of the collective agreement is developing in tolerably good order. Certainly nothing works out perfectly in this world, but it may be noted that at least the theoretical structure in regard to the enforcement of the collective agreement is comprehensive and coherent. For one thing, the collective agreement is practically universally regarded as an enforceable contract. For another, while an employee may not as a general rule compel a union to prosecute his grievance, it is increasingly recognized that individual employees may bring their contract grievances to the courts when unions refuse to prosecute them. And, according to most labor relations statutes, employees may bring their grievances directly to their employers’ attention.
As to the policy aspect of the Westinghouse case, it need only be noted that there is simply no practical reason against permitting unions to prosecute employee claims under collective agreements, and every practical reason in favor of permitting unions to act in such cases. This seems so obvious as to make further discussion superfluous.
There does not seem to be any solid consideration militating against opening the courts to suits brought by individual employees. The rule ought to be that employees may sue in any case where (a) the union refuses to prosecute the grievance or (b) there is substantial reason to believe that the union will not prosecute the grievance fairly and seriously. Certainly none of the objections which unions normally use against progressive proposals are applicable here. Unions will not be “undermined” if employees are allowed to bring their grievances to court only after the unions themselves have refused to process them or have indicated that they will not process them fairly, nor is there reason to believe an undue amount of litigation will ensue.
Perhaps the most important of available legal techniques relating to the individual processing of grievances is that embodied in the current labor-relations statutes, of which Section 9(a) of the National Labor Relations Act is the best-known example. After establishing the exclusive bargaining status of the majority union in any bargaining unit, this section declares that “any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect . . .”
I find myself largely in agreement with the conclusions reached by the committee and with its analysis of the Taft-Hartley Act, an analysis that is especially notable for the respect it pays to Congressional intent as expressed in the language chosen. Legitimate statutory interpretation seems to be repugnant to most of the administrative agents, judges, and students who deal with the statute. To find Professor Summers and his associates giving due respect to the normal rules of statutory construction is encouraging and lends strength to the hope for a scientific jurisprudence, as opposed to the chaos to which abandonment of the carefully wrought rules of interpretation must necessarily lead.
