The Labor Policy of the Free Society
17. Unions of Their Own Choosing
It is a remarkable fact that labor policy has evolved in the United States much along the lines that the theory of the free society would have laid down, had it been in control of events. Free employee choice, the central principle of modern labor relations policy in the United States, is a corollary of freedom of association; and free association is implicit in the principles of private property and freedom of contract, the basic operating principles of the free society. The correspondence between the actual evolution of labor policy in this country and the theory of the free society is thus very close: free employee choice figures prominently in both.
A basic necessity at this time, therefore, is to secure to employees the right to have unions of their own choosing. Rigorous conception and enforcement of the principle of free employee choice will rid us of coercive deprivations of the freedom of workingmen and provide a stout functional check to corruption within unions; at the same time it will go far toward extirpating antisocial, monopolistic trade-union practices. More than that, it will achieve those results consistently with the theory of the free society—something that no other measure can promise. For, in order to secure free employee choice, it is necessary only to prevent coercive conduct; it is not necessary to impair the social rights of any one concerned. The theoretical soundness, the essential “rightness,” and the organically emergent dominance of the principle of free employee choice are all implicit in that fact. The principle of free employee choice has evolved naturally in the United States in much the same way that its parent principles, private property and freedom of contract, emerged from more primitive methods of organizing human relations. It has seemed the only intelligent, humane way to solve labor-relations problems without sacrificing the great goals of the free society: freedom, well-being, and security.
Securing the free choice of employees is a matter today largely of recognizing the coercive character of certain common trade-union practices. Prohibiting trade-union coercion in general will not suffice; for the law already does that. Yet, on the other hand, no startling new insights are needed. It is necessary only that the insights of some leading legal authorities in the country be shared by all. In addition, certain phases of the rules covering employer conduct vis à vis employees need to be clarified. Finally, some basic problems concerning the bargaining choices available to small groups of employees within larger groups must be solved. These are the subject of the present chapter. Procedural devices necessary to implement free employee choice are considered in Chapter 19.
Union Coercion of Free Employee Choice
By express statute or by common-law development, the federal government and the governments of every state in the Union guarantee to employees the right of free choice in trade-union membership. In addition, the federal government and a large number of states expressly prohibit restraint or coercion of free employee choice by employers or labor organizations. Notwithstanding these facts, some of the most common methods of union coercion of free employee choice are largely permitted under federal law. Moreover, owing to the fact that federal law is today regarded as pre-empting state law in labor relations, the privilege of coercion which trade unions enjoy under federal law has tended to become universal.
Secondary Action. The central problem in regard to secondary action arises from the present lack of general agreement concerning the proper characterization of such action by trade unions. A subordinate problem is posed by the fact that trade unions use secondary action in order to gain a number of diverse objectives. If everyone were to agree that secondary action is a form of economic coercion, essentially monopolistic in nature, and if secondary actions were utilized always to compel unwilling employees to become union members, the problem of drafting appropriate preventive legislation would be simplified considerably. Indeed, the proposal already offered would suffice. The prohibition of union “restraint or coercion [of free employee choice], whether by peaceful picketing Or otherwise,” would cover secondary strikes and all the known forms of secondary boycotts described in Chapter 10, such as “hot-cargo” agreements and blacklisting.
In regard to the current lack of agreement concerning the characterization of secondary action, not much can be added here to what has already been said above and in Chapters 10 and 11. As stated there, the present writer is of the opinion that all forms of secondary union action for organizational purposes are economically coercive in character. They are designed to impose unionization upon unwilling employees, not through peaceable persuasion and solicitation, but through economic pressure, usually in the form of a threat to the unwilling workers’ livelihood. Furthermore, secondary action is monopolistic in the sense that, unless prohibited, it must necessarily result ultimately in the coerced unionization of all employees which unions wish to organize.
A union which achieves the total unionization of a craft or an industry through noncoercive methods cannot be accused of monopolistic conduct, any more than a business firm can be accused of monopolistic conduct simply because it emerges as the only business in an industry owing to its superior efficiency. Monopolistic conduct means, in short, coercive conduct; it means achieving monopoly by means of coercive devices, as contrasted to superior excellence in service or performance or to the volitional activity of the relevant participants.
If, in a social group, one person does all the talking, it is not accurate to say that that person has “monopolized the conversation,” unless he has aggressively suppressed all others who might wish to talk. If one person does all the talking because by common consent he is the one whom the others most wish to hear, one may say that he has had a monopoly of the conversation; but it would be inaccurate to say that he “monopolized.” So too when all employees in a certain trade, craft, or industry freely choose to join a given union, one cannot say that the union has monopolized; but when people join because the union has threatened their livelihood, coercive monopolization is present.
To repeat, if widespread agreement to this analysis existed, the simple prohibition of all forms of trade-union economic coercion would suffice. However, since such agreement is not assured, a more detailed prohibition of secondary economic coercion of free employee choice seems required. In addition to the provisions already set forth, the NLRA should be amended to provide that:
Employer Coercion
The law should therefore be amended to prohibit only employer threats of reprisal or force. Statements promising benefits should be privileged, except where conditioned upon a renunciation of the right of self-organization. A provision of this kind would make it lawful for an employer, during an organizational drive, to offer benefits directly to employees. There is no need to fear that employers will offer benefits, only to withdraw them after employees have voted against union representation. If employers should do so, they would only be breeding a great deal of trouble for themselves. They would provide irrefutable arguments to union organizers in subsequent election campaigns. With their right of self-organization guaranteed, employees would be induced by duplicitous employer conduct to see in unions their only real safeguard; and, after choosing union representation, they would be inclined to give the employer a much harder time of it than would otherwise be the case.
Employers, therefore, understanding these things, would be induced to extend themselves in providing and maintaining benefits to their employees. To consider this a form of coercion of free employee choice is as untenable as it would be to insist that consumers are coerced by businessmen who secure their patronage by offering them products of the highest quality at the lowest price. Indeed, acquiring the high regard of employees through the extension of benefits to them is the very contrary of coercion. That our law should confuse a concept with its contrary is an unhealthy and dangerous thing. While the problem under discussion is not very great in itself, it becomes important when considered together with the total confusion surrounding the conception of coercion. If we hope ever to attain a satisfactory understanding of the meaning of coercion, we should not omit any opportunity to correct misconceptions.
It should be added, however, that the employer privilege to offer benefits directly to employees ought to be confined to the organizational stage. After employees have selected a union and the union is bargaining for them, the law should not permit an employer to make more attractive offers directly to employees than he is making to the union. This prohibition should be based, however, not on the anticoercion policy, but on the policy promoting orderly and efficient collective bargaining. There is no mere quibble or word-play here. It is always important to have a clear understanding of the policy intended to be promoted by particular measures. For if the policy orientation is not clear, there is a tendency to err in establishing the proper characterization of particular measures. This kind of confusion probably accounted in the first place for the general prohibition of all offers of benefits by employers.
Representation of Small Groups
If the national labor policy is to be oriented in terms of free employee choice rather than in terms of the convenience of unions or employers, allowance must be made for a good deal of fractional representation. Insistence upon single, large bargaining units in production organizations including diverse skills may simplify collective bargaining in a superficial sense; but at the same time it tends to multiply minority groups and thus the occasions for unfair treatment. For there can be no doubt that unions, like all other agencies of representation, have a natural tendency to favor majorities.
The criterion of “traditionality”—a creation of the NLRB, not of Congress—clearly means that nothing new in the form of employee representation of small minority groups is ever to be allowed; only unions which have acted in the past are to represent such employees in the future. It is difficult to imagine a standard which more effectively frustrates the free employee choice of bargaining representatives. A necessary consequence of the decision in the Elgin case is the prejudicing of small, highly skilled craft groups, since it is to be expected that a union representing both rank-and-file workers and highly skilled craftsmen will not be overly solicitous of the latter. Indeed, some unionists seem to take pride in emphasizing as one of their goals the reduction of the spread between the wages of skilled and unskilled workers.
Representation proceedings—including the determination of appropriate bargaining units, the timing of elections, and voting rules—today compose one of the most challenging and most unexplored areas of labor policy. If Congress is really concerned with promoting the free choice of employees, it must undertake an exhaustive study of the issues raised in representation proceedings. There has been a great deal of experience in this area during the last twenty years. On the basis of that experience, it should be possible for Congress to set forth clear-cut and exhaustive legislative rules for representation proceedings. When it has done so, it may utilize the National Labor Relations Board as a strictly administrative agency to conduct those proceedings strictly in accordance with the legislative rules. Appeals to the federal courts should then be made available to any employee, union, or employer which feels that the administrative agency has exceeded its authority. Taking the Elgin case as an example under the proposed procedure, the tool-and-die-makers would be allowed to appeal directly to the courts when the NLRB refused to allow them a separate bargaining unit.
