The Labor Policy of the Free Society
8. Evolution of Labor Policy: The Principle of Free Employee Choice
Standing as close as we do to numerous disputes in the field of labor relations, we tend to see sharply and vividly some features, while others are blurred, out of focus, sometimes completely out of sight. This is unfortunate. The subject is broad and complicated. It has a history which cannot be neglected if we seek to understand. Institutions, activities, rules of law in labor relations which seem unimportant, which lack vividness in a narrow view of the subject, take on new importance when the perspective is broadened and deepened. Others, of colossal dimensions in a short view, assume more moderate proportions when the focus is lengthened. One can block out the sun with one’s thumb.
This chapter is designed to cover the field panoramically, and in historical depth. The aim is to establish the proper relative proportions of the various features of the labor relations field: to show what looms large in proper context.
Organization of Employees and Collective Bargaining
Some attribute our fractional unionization and the sticky rate of union growth to the so-called anti-union character of the current labor relations legislation (the Taft-Hartley law). Others contend that there is an inherent limit to the organizing potentialities of labor unions and support their position by citing the fact that the proportion of unionization in the United States today is approaching that in other industrialized countries. Still others argue that unionism in general, and in the United States in particular, has really not very much to offer the workingman; that economic conditions in the United States are sufficiently favorable to make the average workingman at least vaguely aware of this; and that, therefore, if unions are prevented by law from coercing employees to join, as the current law purports to do, the natural result will be a decrease in the relative size and power of labor unions.
We shall make no attempt to weigh the merits of these hypotheses. For present purposes it is sufficient to note the basic fact that unionization of the American working force is far from complete, the further fact that the unionization which now exists is by no means stable, and the consequence that organization of the working force remains today a notably important subject for everyone concerned. Many unions are intent upon expanding their membership, either by enlisting employees who presently belong to no union or by raiding the ranks of other unions. “Organization” of nonunion workers is, in short, one of the important features of the field of labor relations. In the light of these factors it will come as no surprise that one of the major phases of labor relations law involves rules governing the organization of employees.
While unions number among their members considerably less than one-third of the working force, their social and economic influence may be far greater than that proportion suggests. And this possibility accounts for the second of the two major phases of the law of labor relations—that is, the rules governing the collective-bargaining process itself. For several reasons this process is considered more important than the bare membership figures of the unions would suggest; two of the reasons should be noted here.
In the first place, under current legal principles, a union representing only a bare majority of the employees within a given employment unit is nevertheless the exclusive bargaining representative for all employees in that unit, nonunion as well as enrolled members. In a unit of 10,000 workers, a union bargains exclusively for all even though it has only 5,001 members in that unit. Thus, bargaining by unions may directly affect many more employees than the bare union membership figures suggest.
In the second place, unionization is virtually complete in the basic industries which directly affect the whole country and the living costs of every consumer: mining, steel, manufacturing, transportation, and construction. With collective bargaining thus affecting production costs and prices to a substantial degree throughout the economy, it is entirely natural that the law assumes an interest in the process.
Another capitally important feature of our subject matter is that these two major areas of labor relations law—union organizational activities and the collective-bargaining process—have a single, common point of departure in the current legal structure: the principle of free employee choice. This principle, as conceived and largely as applied today, declares that individual employees have a protected legal right to join or not to join unions, or to participate or to refuse to participate in the concerted activities of labor organizations, according to their own choice, and free of coercion by either employers or unions.
Development of Free Employee Choice
Employees during these years had a clear, legally protected and enforced right to join unions. Their right to refrain from joining unions was not so clear.
This, then, was the period in which the principle of free employee choice, subordinated to the policies encouraging collective bargaining and the growth of labor unions, became in effect the principle favoring only the employee right to join unions. And it is interesting to note that the statement of “employee rights” in Section 7 of the Wagner Act made no mention of any right to refuse to join unions. That statement read as follows:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid or protection.
If the Wagner Act’s statement of employee rights reflects the subordination of the principle of employee free choice to the policy favoring collective bargaining and concerted union action, the analogous statement of employee rights in the Taft-Hartley Act symbolizes the emergent dominance of the principle of free employee choice. As amended by the Taft-Hartley law, the statement of employee rights declares that:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities. . . .
The Appeal of the Principle
To understand the process whereby the principle of free employee choice has become dominant is to understand some of the most important features of economic, social, and legal thought in the United States. Understanding of this process is important also to a fruitful grasp of the character of the current labor policies and laws. It seems worthwhile, therefore, to sketch the factors which have been at work in the elevation of this new central principle, and then to note the extent to which the principle prevails in practice.
There has been an entirely natural and forseeable reaction during the last ten years to the excesses resulting from the relatively swift growth of labor unions and the substantial economic power which this growth has placed in the hands of union leaders. To put the matter simply, the American people, who have always been suspicious and resentful of great economic power, now suspect and resent the power of union leaders and are well disposed to arguments suggesting both diminution of that power and safeguards against abuses of the remaining powers of labor union leaders. Before unions achieved great power, many seemed to think that union leaders, unlike other men, could somehow be trusted absolutely. With experience of arrogant, antisocial conduct on the part of union leaders, the weight of opinion has shifted to the conclusion that labor union leaders are, after all, only men; and that, as such, they must be carefully watched and checked. This attitude has an importance in the current structure of labor policy in the United States which cannot be exaggerated.
At the same time, many in the United States remain sympathetically disposed to the “workingman,” and most people are convinced that much good is to be expected from collective bargaining. The problem, therefore, has been one of preserving collective bargaining while at the same time checking the arbitrary powers of union leaders.
With such a problem to solve, it has been natural for American thought to turn to the economic, social, and political philosophy of classical liberalism—the philosophy which over the years has exerted so strong an influence in our public and private lives. In this almost unconscious process of deliberation, the concept of free employee choice has again and again emerged as the most satisfactory practical expedient for reconciling antagonism toward arbitrary power with sympathy for the individual worker and faith in the institution of collective bargaining.
Classic liberalism has always regarded the individual, the freely choosing individual, as the only rational starting point in social, economic, and political analysis. Representative government has been the consequence in political life. The free market has been the consequence in economic life. And great emphasis on individual freedom of choice has been the general social consequence. Against this background, it becomes evident that the concept of free employee choice in the elaboration of labor policy must have an extremely strong appeal. It is literally unthinkable to many that everyone should be forced, if he wishes to work and live, into union membership.
Principle and Practice
The basis of the current legal approach to these “emergency” strikes is the traditional reliance upon voluntary methods of settling economic disputes, the traditional liberal reluctance to impose upon private parties a governmental determination of economic issues. The hope is that the dispute will ultimately be settled through collective bargaining during the eighty-day period of the temporary injunction, without substantial governmental intervention and coercion.
