The Labor Policy of the Free Society
19. Enforcement of Labor Policy: A Sensible Juridical Structure
Measured against the subject of this chapter, the matters considered in the preceding chapters may seem inconsequential. There we encountered errors, distortions, and perversions of law. Here we come face to face with a more portentous development: the destruction of law itself.
Let the reader consider what his reaction would be if he were seriously harmed by unlawful conduct but could find no justice under law, could not even find a court of law to hear his grievance. He will then accurately understand the situation which tends to prevail today in labor relations. A worker has his means of livelihood wrenched from him by the unlawful conduct of an employer or a trade union but can get no court to hear him. A union suffers harm through the unlawful conduct of an employer or another union but finds it impossible to get a hearing, let alone the relief which the law seems to promise. An employer spends a lifetime building a business upon which the livelihood of many depends but finds all courts of law closed to him when a union unlawfully injures or even threatens to destroy it.
The Great Tradition of Progressive Judicial Reform
Patiently and steadily, despite false turnings and setbacks, Anglo-American law has sought over the centuries the just and yet effective juridical institutions necessary to secure the personal rights which are the essential features of the free society. Progress has been measured in terms of achieving ready access to the courts, disinterested judges, fair hearings with the irreducible minimum of technicalities or surprises, an effective remedy for every legal wrong, the uniting in a single court of both common law and equity powers so that the best techniques of both might be available in every case, and, at the highest level, a single rule of law to cover the broadest possible area of human affairs.
The purpose of this chapter is to document that charge, and to suggest changes which will set us once more on the route to the achievement, in labor relations at least, of effective justice under law for every person who has been wronged. I shall show in this chapter that the rule of law does not exist in labor relations; that there a man is entitled in only exceptional cases to a day in court, no matter how unlawfully he has been harmed; and that the relief available to persons harmed by unlawful conduct is more often than not inadequate. I shall show how this condition has come about, and how profoundly retrograde it is. I shall, finally, offer the simplest and best remedy consistent with the great tradition of progressive legal reform for a condition which must seem intolerable to every person who wishes to live in a free society.
Atavism: No Man Is Entitled to a Day in Court
We shall be concerned here with persons or organizations involved in interstate commerce. This category includes the overwhelming preponderance of workers, unions, and employers in the United States; for relatively few are engaged in strictly local activities, having no effect upon interstate commerce. In respect to those few, it would not be as accurate to say that access to the courts does not exist as it is in respect to the many more whose activities affect interstate commerce. For the remainder of this chapter, therefore, unless the contrary is indicated, we shall be referring to the latter.
If relief is sought from the National Labor Relations Board, the injured party will learn that he must file an “unfair practice charge” with the General Counsel of that agency. Having filed a charge, he must await the General Counsel’s decision. If the General Counsel declines to prosecute the charge, the injured party has no further recourse, no way of compelling the General Counsel to entertain his charge. He has no way, indeed, even of knowing whether the charge was dismissed because it failed to spell out a violation of law, or because it was not within the jurisdiction of the NLRB, or because insufficient facts were set forth, or because the General Counsel or a subordinate simply did not like his looks or sympathize with his plight. There is, in short, no way in the world for the injured party to find out why his complaint was denied a hearing. The General Counsel may offer an explanation; but he is under no enforceable obligation to do so. Moreover, if the General Counsel does in fact issue a complaint, the National Labor Relations Board may then refuse to hear it, without giving any explanation of its refusal other than the arbitrary statement that, in the discretion of the Board, a hearing on the complaint would not be advisable.
They are equally clearly unconstitutional. The Constitution of the United States provides in Article III, Section 2, that “the judicial power [of the United States] shall extend to all cases, in law and equity, arising under this Constitution . . . [and] the laws of the United States.” As to what is meant by the “judicial power,” the Constitution is perfectly clear. No one can read Section 1 of Article III of the Constitution without realizing that an administrative agency such as the NLRB, whose members are short-term political appointees, is not within the constitutional concept of judicial power:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their offices during good behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Congress did not act unconstitutionally in establishing rights and duties of employers, workers, and unions in the National Labor Relations Act. But it did violate the Constitution when it gave exclusive power to prosecute and adjudicate those rights and duties to the National Labor Relations Board and its General Counsel. For neither the General Counsel nor the personnel of the NLRB can be considered federal judges; neither has life tenure in office, nor any of the other characteristics of judicial office. Yet they are given judicial power which the Congress has expressly denied to the federal courts, the true repositories of the “judicial power of the United States.”
When a person aggrieved by a violation of the NLRA in denied a hearing by the NLRB or its General Counsel, the fact that he may not then get a hearing from any federal court demonstrates beyond the shadow of any doubt that the judicial power of the United States is not extending to a case arising under a law of the United States. That this is unconstitutional should be evident to anyone who knows the language of Article III, Sections 1 and 2, of the Constitution.
While the Congress has been responsible for the denial of the access of injured persons to the federal courts, the Supreme Court of the United States is essentially responsible for the denial of access to the state courts. The situation here, however, is far more complicated than the one just surveyed.
The only possible constitutional basis for the Court’s theory is to be found in the supremacy clause:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Perusal of this clause will demonstrate that only state-court decisions in conflict with federal laws are condemned. The supremacy clause cannot be read as forbidding state-court decisions consistent with federal law. Much less can it be read as forbidding all state-court jurisdiction over matters involving federal law or persons subject to federal jurisdiction. As a matter of fact there is implicit in the clause the assumption that state courts will take cases involving federal laws; otherwise, there would be no point in requiring them to conform to federal law. Indeed, the framers of the Constitution took it for granted that state courts would participate in the enforcement of national law. So ardent a Federalist as Alexander Hamilton made this clear:
No Act of Congress shall be construed as invalidating a provision of State Law . . . unless there is a direct and positive conflict between an express provision of such Act and such provision of the State Law so that the two cannot be reconciled or consistently stand together.
The immediate causes of the denial of access to the courts in labor relations are thus to be seen in the combined action of the Congress and the Supreme Court. Congress has given the NLRB and its General Counsel arbitrary power to deny an injured person a hearing. Congress has closed the federal courts to persons injured by conduct forbidden under federal law. Congress did not, however, prevent unlawfully harmed persons from seeking whatever remedies they might find in the state courts. That blow to the ideal that every man is entitled to his day in court was struck by the Supreme Court.
Atavism in Equity
Retrogression in the twentieth century has not been confined to reducing access to the courts. It is to be seen also in the limitations which Congress and many state legislatures have imposed upon the use of equitable remedies (mainly injunctions) in labor disputes. Many “progressives” took an active part in the movement which resulted in the elimination of equity in labor relations, it is true. But it is for the reader to decide, when the relevant considerations are brought to attention, whether the movement is properly to be characterized as progressive.
One of the ancient deficiencies of the common law as an effective instrument of law enforcement was its incapacity as a rule to do anything more than give money damages to a person harmed by unlawful conduct. Yet in a great many instances a mere award of damages will not do effective justice. A money judgment can effectively remedy only such harm as can be measured with precision in terms of dollars and cents. It is a pale remedy for harm not measurable in money terms, an inadequate remedy for harm which, though economic in character, can still not be calculated with any certainty. A great deal of harm falls into one or the other of these categories, and this is true no less in labor relations than in other fields of human action. Unlawful trade-union conduct usually interferes with production and thus destroys an intricate web of relationships: between employers and employees, among employers and customers or suppliers, sometimes the infinitely complex interplay of a whole community. Harm of this kind can be measured with precision in money terms in only the rarest of cases. Even when it could be so measured, the common law had no way of making a trade union pay for the harm it did; the assets of trade unions could not be reached in common-law proceedings. Again, some types of unlawful harm are such that no remedy of any kind does any good. The law can perform its function adequately in such instances only by preventing the unlawful conduct.
To correct these deficiencies in the procedures of the common law has been one of the main historic functions of equity. And from a sound perception of this historic role has grown the formulation of the proper occasion for the issuance of equitable relief: Equity will intervene to provide affirmative relief against unlawful conduct where no adequate remedy at law exists.
This fundamental rule of equity has in no sense been developed particularly for use in labor disputes. It is a generic formulation held progressively applicable to all cases falling naturally within it. As one first-rate judge described equity’s role in a case about as far removed from labor relations as can be imagined:
The best equity practice of the time was of course not enough for the trade unionists. They wanted no equity at all in labor relations. Indeed, if a statement frequently attributed to Samuel Gompers may be credited, the aim of trade unionists was to have no law at all, of any kind, applicable to their activities. They were to secure their wish before too many years had passed. The great crusade reached a high point in 1930, with the publication of one of the most influential law books ever written in this country, The Labor Injunction. Two years later the Congress passed the Norris-LaGuardia Act, which virtually wiped out the equity powers of the federal courts in labor disputes. Within ten years, most of the state legislatures followed Congress, although few went quite so far. Equity was pretty well taken care of; and, since equitable remedies were the only ones which had any tendency to check unlawful union conduct, one might as well say that the Gompers goal was substantially achieved.
Some may think that the success achieved by the trade unionists must have been well merited. If judgments of merit are to be based upon considerations other than strenuous effort, however, decision must be suspended until the arguments by or on behalf of the trade unionists are examined.
The central and most persistent contention was that courts defeated “strikes” by issuing injunctions in labor disputes. The exact form in which this contention was sometimes cast should be considered with care. The Labor Injunction put the case like this:
This statement creates a clear general impression that strikes themselves were frequently enjoined, and thus defeated. Reference is made to “activities,” “interdicted interferences,” and “strike activities.” And the writers are thus in a position to say that they did not contend that strikes themselves were being enjoined. Yet most persons hearing or reading such an argument will surely gain the impression that strikes as such were being enjoined. For there can be no question of “resumption” of a strike which has never been enjoined. And when the writers declare that resumption of a strike may be foredoomed after an injunction, they are surely implying that the strike has been enjoined.
We must examine, too, the implication of the statement, “the employer resumes his efforts to defeat the strike, and resumes them free from the interdicted interferences.” The suggestion here is that employers derived undue advantages from injunctions. But the truth is that the injunctions only preserved the right of employers and prospective employees to come into contact without violent or intimidatory interference by others. How this may with any integrity be viewed as an undue advantage is impossible to see. It gives the employer and the nonunion employees no more advantage than the union men derive from their right to strike. The bitter complaints about “government by injunctions” can be pretty well judged on the basis of these considerations. Trade unionists and their supporters were not seeking fair play; they were objecting to it. Most contentions put forward in the great crusade were of that character.
What is property? One man has property in lands, another in goods, another in a business, another in skill, another in reputation; and whatever may have the effect of destroying property in any one of these things (even in a man’s good name) is, in my opinion, destroying property of a most valuable description. . . .
So much for the destruction of equity in labor relations. Determined to secure immunity in one way or another for unlawful conduct, trade unionists in the United States were ultimately about as successful, for a time, as their British colleagues had been in 1906. Everywhere unable to establish the merits of straightforwardly legalizing conduct which clearly threatens the destruction of law, if not of civilization itself, trade unionists nevertheless succeeded indirectly in reaching the same result. Congress and the state legislatures withdrew equity. They declined, however, to modify the substantive law. The Supreme Court of the United States later did what Congress and the state legislatures had declined to do. These aids were apparently not enough, however.
Congress also contributed the Wagner Act, with its one-sided emphasis upon only employer unfair practices; and it took away all possibility of direct access to the federal courts, as noted in the preceding section of. this chapter. But Congressional benefits accorded to trade unions were only negative in character, and many state courts were not as compliant as they might have been. So the Supreme Court accorded another positive privilege in holding picketing entitled to constitutional protection as a form of freedom of speech, immune to any form of state control.
Then, changing its course, Congress in the Taft-Hartley Act expressly declared that most of the types of conduct legalized by the Supreme Court were unlawful. Enforcement, however, left largely to a National Labor Relations Board appointed by a President completely out of sympathy with the law, was not very vigorous. When the picketing—free-speech identification proved less serviceable than expected, and when the state courts seemed inclined to enforce the national labor policy more vigorously than the National Labor Relations Board, the Supreme Court conceived the theory of federal pre-emption.
And there we now stand. Two things are prominent: deviousness and an unutterable confusion. The deviousness is accounted for by the overwhelming fact that trade unionists have never been able directly to convince the nation at large and its courts of the merits of their demands for special privilege. The confusion is accounted for as the necessary consequence of a devious method of securing privileges which could not be gained in any straightforward way.
The pressure in a largely free society for a just and equal rule of law, effectively and equitably enforced, is not unlike the power of a mighty river. Attempts to block it may succeed momentarily; but before long it will seek and find new channels, perhaps creating chaos and destruction in the process. Such has been the history of labor relations law for the past generation: tortured, frustrated, destructive, chaotic, senseless. If reason, good sense, and effective administration of justice are to prevail, the regressive policies which produced the present senseless chaos must be rejected.
A Fair and Sensible Juridical Structure
The Norris-LaGuardia Act ought to be repealed. The National Labor Relations Board should be abolished. The regular constitutional courts should be given full jurisdiction, in law and equity, in all cases arising under the National Labor Relations Act. The state courts should be given clear authority to participate in the enforcement of the national labor policy, with their decisions subject to the unifying review of the Supreme Court of the United States. And all persons should be granted direct access to the courts for disinterested decisions on the merits in every instance in which they feel that they have been injured by unlawful conduct.
Thus alone can we resume progress toward the ideals of a day in court for every man who seeks justice, of fair hearings on the merits, of an effective remedy for every legal wrong, and of the prevention of irreparable injury. If we do these things we shall be in a good way to achieving the juridical structure and techniques which accord with good sense, the Constitution of the United States, and the liberal, progressive spirit which has animated the great tradition of judicial reform.
The only convincing argument brought forth in the campaign for anti-injunction legislation is no longer applicable. A detailed, coherent code of substantive law for labor relations exists already in large measure and can be realized in full with no trouble. Suggestions to this end have been made in the preceding two chapters. With the substantive law in good order, there is no reason to abandon equitable remedies in labor relations, any more than there is in any other field of law. Labor relations indeed represent the area par excellence in which equitable remedies are needed, if irreparable injury by unlawful conduct is to be prevented.
The Norris-LaGuardia Act should therefore be repealed, and the best rules of equity, the best equity practice, should be held applicable in labor relations, just as they are in all other fields of federal jurisdiction. The reflection upon the fairness and the impartiality of federal judges implicit in the Norris Act is an affront to a group of judges who are on the whole, in the common opinion of the lawyers of the country, the fairest, most liberal, and best instructed judges in the land. If the federal judges had not already proved their stature in a thousand other ways previously, they certainly did so in their scrupulous acceptance of the rigorous and even insulting limitations imposed upon them by the Norris Act.
Such a suggestion rests upon an inadequate conception of reality. It assumes as stable and real that which is neither real nor stable: a distinction between “interstate” and “local.” Its product has been, is now, and always will be chaos in both judicial administration and substantive rules of law. State courts will always be handling cases “on the borderline” between interstate and local. If we want a sensible, coherent, uniform rule of law in this country, we must frankly face and accept that fact. The thing to do is to grant jurisdiction straightforwardly to the state courts over cases involving federal law. There is every reason to believe that state judges who become accustomed to applying federal law will do so in all cases in which the possibility is open to them.
We have a single judicial head of the country, the United States Supreme Court. Appeals lie to that Court from the decisions of all the other courts of the country in matters of national concern or national law. With such appeals available from decisions of state courts, there is no reason to believe that we shall not get a much more uniform national labor policy from a deliberate program of enlisting the aid of the state courts than we are getting at present in the hopelessly confused situation which now prevails. We shall also have taken a long-needed step toward creating a single rule of law. Uniformity is an unattractive quality in many areas of human action. But to law it is an essential necessity; there is no law except uniform law. We can at the same time preserve the positive values inherent in the states’ rights position if we secure to the state courts a permanent role in the national scheme of law.
Many experienced practitioners suspect that administrative hearings have become a gigantic make-work program. The truth probably is, however, that the inordinate size of the records often made in such hearings comes about owing to a mixture of ignorance and caution. Not always being experts in the rules of logic and careful reasoning known as the law of evidence, administrative hearing officers sometimes admit reams of irrelevant testimony. At the same time, less fuss is likely to be created by a reviewing court if too much evidence is admitted rather than too little; and so the hearing officers let everything in, thus establishing a semblance of “fairness.”
Some will say that the Hoover Commission proposal is at least another step in the right direction and should be adopted for that reason. But is there, at this point in development, any real justification for insistence upon a step-by-step mode of procedure? We are not experimenting here in the great unknown. It is not as though the regular federal courts are an unknown quantity. They have been handling labor and commercial cases for almost a century, and their record over the long years has been outstanding. They are, by common consent, the best courts in the country.
Another consideration put forth by those who favor the creation of specialized courts is that such courts develop a valuable expertise in their field of action. The problem presented by this view lies less in its admiration of expertise, however, than it does in its uncritical assumptions concerning the “field of action.” Certainly expertise is desirable. No one wants decisions made by persons who do not know a lot about the field in which they operate. But it must never be forgotten that the field of action with which we are concerned is law.
