Compulsory Unionism

May 30, 1955

There has lately been increased rebellion against the trend toward compulsory unionism. Opponents rest their case on the principle that no man should be compelled to join a union in order to get or keep a job. But most of the rebels are modest in their aims. What they seek (like Gerard D. Reilly, whose pamphlet, States Rights and the Law of Labor Relations, was discussed here a couple of weeks ago) is little more than the retention in the Taft-Hartley Act of the provision which permits the states to forbid compulsory unionism.

But if any permanent success is to be achieved in this cause its aims must go much farther. Let us begin, for example, with the Taft-Hartley law itself. It must never be forgotten that this is merely an amendment of the Wagner Act. Like the Wagner Act, it forbids “discrimination in regard to hire or tenure of employment or any form or condition of employment to encourage or discourage membership in any labor organization.” Yet, in clear contradiction to this, it permits the imposition of the compulsory union shop. If the Taft-Hartley Act is to conform with its own declaration of purpose, it must forbid the employer to discriminate in favor of union workers as it forbids him to discriminate in favor of nonunion workers. It cannot permit the compulsory union shop, and it cannot permit so-called maintenance-of-membership contracts.

But any attempt to protect the right of the individual worker either to join or not to join a union would have to go much farther than this. For the Taft-Hartley Act gives a union that has gained the adherence of more than 50 percent of an “appropriate bargaining unit” in a plant or company the right to act as the exclusive bargaining agent for all the workers in that company. This right to bargain for other than its own members is a right not given by law to any other kind of private organization. As the eminent labor lawyer, T.R. Iserman, has pointed out: “The right to act as the exclusive bargaining agent of employees is far more important to unions than any right to force employees to join unions under closed-shop or union-shop contracts.”

But a still further amendment would have to be made in the Taft-Hartley Act before it could become a truly impartial and workable document. Congress would have to adopt the amendment suggested by Gerard Reilly (once a member of the National Labor Relations Board), under which Congress would clearly define “those areas which it intends to leave unregulated and those which it intends to leave to separate or concurrent regulation by the states.” Preferably Congress should go even farther and leave to the states and localities all those matters, such as coercive picketing, sabotage, and violence, that the Federal government is not in a position to police. It is absurd for any governmental authority to try to lay down rules in spheres beyond which its own power of enforcement extends.

If we look at the question realistically, however, it is extremely unlikely, in view of the one-sided Washington attitude of the last twenty years, that Congress would now pass a balanced labor law which would consider first of all protection of the liberty of the individual worker to join or not to join a union, as he saw fit.

It may be asked, in fact, whether those who are now insisting that the law abolish any form of the compulsory union shop have fully studied the problems that this raises. It implies continued detailed intervention by government in the field of labor relations. Would it not be better to take the unions at their word and simply repeal the Taft-Hartley Act and return to the situation that existed in this country prior to 1935? Would it not be better for the Federal government to intervene only in undeniable interstate labor relations and leave the regulation of other labor relations either to the states or to the common law, which should protect the individual, whether worker or employer, from violence, but otherwise leave him free? These are large questions, which deserve deeper study than we have yet given them.