Labor Law Gone Wrong

July 10, 1961

A quarter of a century ago, in the first Franklin Roosevelt Administration, Federal labor law took a wrong turn. It was based on the theory that the chief reason there were strikes and labor dissensions was that unions were too weak and lacked “bargaining power.” The Wagner Act in effect put the government into the union-organizing business. It made it compulsory for employers to recognize any union, certified by a government board as comprising a majority of the employees of an “appropriate” group, as the exclusive bargaining agent for all employees in that group. A company was forced to “bargain collectively” with the representatives of this group—and with no one else.

The act thus rested on a legal principle never countenanced in any other field. While it was cloaked with the phrase “free collective bargaining,” it was in fact a denial of the freedom to bargain. It took away from the employer the right to choose the persons with whom he bargained. It took away from any individual worker the right to bargain for himself, and from any minority union the right to bargain for its own members.

RESORT TO VIOLENCE

If the same principle were extended, a company management could be compelled to “recognize” and to “bargain with” only one particular supplier of raw materials. No matter how bad the material offered, no matter how unreasonable the price asked, no matter if the supplier insulted and denounced him, he would have to continue “negotiating” and “bargaining with” that supplier. He could not simply break off and ask for competitive bids from other suppliers, lest he be haled before a Federal board and condemned and penalized for an “unfair practice.”

But the legal situation of labor-management relations is much worse than this. For the unions enjoy de facto the right to throw mass picket lines around any plant or in front of any dock or ship and intimidate any other workers from applying for the jobs the strikers have deserted. Worse than this, they can often with impunity resort to flagrant vandalism and physical violence. Those interested in typical details should read The Kohler Strike by Sylvester Petro.

Yet for 25 years no one in power has seriously re-examined the premises of the Wagner Act. The Taft-Hartley Act amended the Wagner Act in minor respects, but it kept its principal compulsions on the employer and its principal immunities for labor unions. The Norris-LaGuardia Act, since 1932, has in effect denied the employer injunctive relief from intimidation and violence. The Supreme Court, with its doctrine of “preemption,” has further discouraged action by the local authorities to prevent strike violence. And each time a new nationwide strike has broken out, paralyzing essential production or transport, the Administration in power has talked and acted as if there were perfect freedom of bargaining on both sides and no intimidation at work.

ONE-SIDED DURESS

In the maritime strike, Secretary Goldberg, ignoring the picketing and violence at the piers and oil refineries, requested all parties to “talk,” to “resume direct negotiations”—just as if one party, the employers, were not in effect acting under duress. He has declared that the Taft-Hartley Act does not give the President “a sufficient arsenal of weapons to deal with a problem of this character.”

Someone, I hope, will at last suggest that the trouble is the opposite of this—that the Federal government has intervened too much in labor disputes, and in the wrong way; that if the employer had the clearly recognized legal right to discharge strikers and to replace them; if intimidatory mass picketing were forbidden, and the laws against violence enforced; if the freedom to bargain were restored to the employer and to the individual worker, there would be an astonishing drop in the number of irresponsible strikes called, and unions would greatly moderate the unreasonable demands that present labor law now encourages them to make. The government would not have to ask for dubious 80-day Taft-Hartley strike injunctions, which politicalize every strike settlement, and must finally lead to the desperate expedient of compulsory arbitration.