The Labor Policy of the Free Society
9. Free Employee Choice and Employer Coercion
The Common-Law Background
Under the common law, therefore, the question of whether or not there should be unionization of employees was considered a question of no special or unique significance. It was viewed in very much the same way as the question of the particular wage level. The common law established no upper or lower limits on the wage level; wages to be paid or received were left to the free play of economic forces. Employees were legally free to ask whatever wage they wished; employers were legally free to offer to pay whatever wage they wished. The actual wage paid was fixed, not by law, but by the interrelationships of the wishes, desires, and capacities of employers and employees.
These two statutes, the Norris-LaGuardia and Wagner Acts, changed the course of development in labor relations law. While physically and economically coercive union action had been the major concern of the common law, the federal Norris Act and its counterparts in state legislation went a long way toward erasing this concern by denying courts jurisdiction except over the most flagrantly violent union conduct. Meanwhile, although the common law had scarcely concerned itself with the use by employers of their economic position to resist and discourage unionization, the Wagner Act intervened to eliminate employer resistance to unionization much more efficaciously than the common law had ever been able to control union organizational activities.
The National Labor Relations Act
The original Wagner Act was designed to eliminate every type of effective employer resistance to unionization. With certain relatively unimportant modifications, the same is true of the current version of the Wagner Act; that is, the Taft-Hartley Act. (The official title of the Wagner Act was the National Labor Relations Act. The Taft-Hartley Act is merely the informal title of the amendments made in 1947 to the NLRA. Thus the current statute is officially known as the National Labor Relations Act, as Amended. When speaking of the current law, we shall use the abbreviation “NLRA.”’ In instances where the current statute differs from its predecessor we shall use the terms “Taft-Hartley” and “Wagner.”)
Employer Unfair Labor Practices
Property Rights and Unfair Practices
The central problem in the vast majority of employer-unfairpractice cases concerns the degree to which these prohibitions qualify rights and privileges accruing to employers under preexisting traditions, customs, and laws. Freedom of speech, private property, and free contract are concepts of a certain vitality and force even today in the United States. They are, in fact, rather widely considered as more than mere abstractions or empty generalizations which time and the so-called complexities of modern life have robbed of real significance and social utility. The most critical of these concepts today, the concept of private property and the practical incidents thereto, is often considered to be not a mere shibboleth designed to shelter privilege but the best practical method of serving the social aim of utilizing human and material resources in the manner most advantageous to society as a whole; that is, the most sensible basis of production.
The operation of the NLRA can be best demonstrated and appreciated in terms of the accommodation which has been effected between its provisions and the traditional common-law view of the scope of private-property rights.
A fundamental aspect of the traditional right of private property accords to every proprietor the control of the use of his land, buildings, factories, or other subject of the property right. As a proprietor, an employer has the right to place such limits as he wishes upon the activities of workers on his property. The workers are usually admitted to that property in order to perform the work for which they have been engaged. Activities unrelated to that work may, under the traditional view, be permitted or prohibited, as the employer wishes. Viewed purely in the light of the common law, the employer might prohibit the use of his property for any purpose related to organization of a labor union, while permitting other types of employee activity unrelated to production—as, for example, athletic events or social gatherings.
The NLRA declares, however, that an employer may not interfere with, restrain, or coerce employees in the exercise of their right of self-organization. And thus the question arises whether the pre-existing right of private property has been modified, for if the employer forbids the use of his property for organizational purposes, it may be contended that he is interfering with or restraining employees in the exercise of their right of self-organization. The same argument may be advanced if the employer refuses to permit union organizers to enter upon his property. On the other hand, it is highly doubtful that the Congress of the United States, in passing the NLRA, intended to compel employers to help employees in their organizational efforts. The provision prohibiting employers to contribute support to labor organizations is relevant here. It can scarcely be contended that by prohibiting employer interference or restraint the law intended to force employers to make a positive contribution to organizational efforts, when a provision of the law clearly prohibits such contributions.
Freedom of Speech and Free Employee Choice
One of the profound problems raised by the NLRA’s prohibition of employer interference in the organizational process concerns the right of employers to criticize and condemn labor unions. By and large, this has been considered a constitutional problem. It has been thought that a prohibition of employer criticism of unions must necessarily be analyzed in the light of the constitutional right of free speech. Here, however, as in many areas of so-called “constitutional law,” the emphasis upon the constitutional analysis may have done more harm than good. It may have tended to conceal the true dimensions and character of the problem.
The mere fact of the deliberate insertion of this provision suggests the acceptance by Congress of the social utility of permitting employers to speak freely on the subject of unionization. It also strengthens the inference that labor policy in America is today oriented primarily in terms of free employee choice, rather than in terms of the single-minded promotion of labor unions and collective bargaining. For the new “free speech” provision, by condemning only those statements which contain threats or promises, recognizes the continued existence of a right in employers to speak out liberally on the merits of unionization.
In summary, the extent to which the law permits employers to speak on the subject of unionization does not impair the principle of free employee choice. On the contrary, by maintaining the prohibition against economic coercion on the part of employers but at the same time making available to employees such arguments as employers can adduce against unions, the probability is that the area of effective choice by employees has been widened and deepened. The opportunity now available to both unions and employers to point out each other’s defects tends to give employees a broader basis of judgment. It also emphasizes to unions and employers that the employees themselves are the central subjects of the national labor policy. Unions and employers are made strikingly aware of the power of the employees, and in the process it can hardly be doubted that substantial advantages accrue to the employees. The Taft-Hartley Act’s emphasis on employer free speech is therefore to be regarded in principle not as a favor to employers but as an integral element of the concept of free employee choice.
Free Employee Choice and Majority Rule
These possibilities were condemned in principle even by the Wagner Act and have been more explicitly condemned in certain changes made by the Taft-Hartley Act. The implicit condemnation of the Wagner Act was to be seen in three of its provisions: the provision prohibiting employer interference with the exercise by employees of the right to form unions of their own choosing; that declaring unlawful any employer assistance to a labor organization; and that requiring employers to bargain only with unions representing a majority of employees in any bargaining unit.
The clear implication of these provisions was, of course, that an employer should not recognize and bargain with a union which represented less than a majority of his employees. However, since the law did not provide any direct method of preventing minority unions from exerting economic pressures for recognition, employers were often compelled to deal with such unions if they wished to continue in business. No help could be expected from the National Labor Relations Board under the Wagner Act, since that agency felt that its primary function was to promote collective bargaining, entirely without regard to the question whether such bargaining was desired by the employees concerned. And so, while the Wagner Act condemned and prohibited employer interference with the free choice of employees, it condoned such interference where union coercion compelled the employer to interfere.
One of the central purposes of the Taft-Hartley Act was to make equally effective the choice of not belonging to a union And to this end several of its new provisions were directed. But proper appreciation of this phase of the current legal structure requires systematic analysis of the provisions dealing with union action in connection with employee organization—the subject of the following chapters.
