Adversary Unionism; J. Nelson

JohnO. Nelson Adversary Unionism I should not want to maintain that all unionism is or has been adver sary in character. In the past, the unionism of company unions per haps was not, nor the unionism of the medieval guilds. It may be that tJapanese unionism is not. It may be that Russian soviet unionism is not. I shall refer only to Western, ((free world" unionism, especially as rep resented by unionism in the United States. With those limitations under stood, I think it is largely a truism that contemporary unionism is ad versary in character and is so rec ognized to be, not only in the pecu liar structure of the various laws (Wagner Act, Taft-Hartley Act) and governmental decrees (NLRB deci sions) covering the subject but in the minds of laymen, employers, union members and union leaders alike. Dr. Nelson is Professor of Philosophy at the Univer sity of Colorado where he has taught since 1950.

Thus, there had to appear some thing contradictory in the recent 'election of United Auto Workers President Douglas A. Fraser to Chrysler's Board of Directors but not in his statement that his new role would ((not alter the traditional ad versary relationship between the UAW and the auto companies" (UPI, 5/14/80). The term ((adversary" signifies ((having an opposing party." As the adjective ((adversary" is applied in contemporary references to unions by union leaders, the constitution of unions, those dealing in government with unions, labor relations theor ists, and so on, Marxian and related ideologies often play a significant role. The notion of ((opposing party" is pretty much merged with that of ((enemy." Thus, typically, a union conceives' and represents itself as protecting and defending the rights and interests of employees and the 307 308 THE FREEMAN May same as being necessarily threat ened and attacked by employers. It is, for instance, on the ground that employers are intrinsically the en emy of the worker that unions not only justify their existence but the various coercive and war-like prac tices that they everywhere engage in: forced membership, strikes, the use of goon squads, and so on.

Constitutional Rights Violated It is on the same ground, with the added one that employers are in a position of unfair strength, that twentieth century legislation has consistently violated and shelved such basic constitutional rights of employers as those of contracting with whom they please and free speech. Employers, for example, are disallowed by law from saying what they think of unionism to their em ployees. We should not, therefore, be un reasonable in describing contempo rary unionism as being Uessentially" adversary in character, where ttad_ versary" is to be understood in some such strong sense as, for instance, ttenemy-related," and ttessentially" in its strict philosophic sense. For suppose contemporary unionism di vested itself in act and thought of the claim that the relationship be tween employer and employee was ttenemy-related," it should simply not be recognizable as itself.

For our present purposes, however, we need not insist on the whole truth. It will suffice to treat the ttad_ versary relation" defining contem porary unionism in terms merely of ttintrinsically opposed",i.e., in objec tives, in interests. I can imagine no defender of contemporary unionism either wanting or being able to dis agree with this version of the adver sary relation. Given this very weak interpreta tion of ttadversary relation," which hardly does justice· to the fierce. ac tualities, I intend to place unionism upon two scales: one measuring the legal coherency of unionism and the other its moral coherency. Some what arbitrarily, I shall weigh in the first scale the unionization of government employees and in the second the unionization of private employees (meaning by this: the employees of private enterprises). Probably the two scales could be switched around, though I do be lieve that the present distribution of scales and weighings has a certain natural appropriateness that will become apparent.

The Unionization of Government Employees One is vaguely aware that some thing perverse is going on when mu nicipal, state, or federal employees strike; garbage piles up high; mail is not delivered (during the first Ca nadian postal strike one even saw mail being burned in the streets of 1981 ADVERSARY UNIONISM 309 Montreal by postal employees); fire men refuse to put out fires (or even set them themselves), and so on. The feeling is justifiably present that one is like a·person who has be'en bound and gagged and while helplessly prostrate is assaulted with legal im munity. For whatever the laws themselves may say, itis a common place of the contemporary scene that these terrifying activities of govern ment employee unions take· place and are allowed to take place. When the strike that happens to be aggrieving one has ended one's natural inclination is to suppose that everything has returned to a happy state of normalcy. One says, ((The unions sometimes go to extremes.

There ought to be laws against gov ernment employees striking [but there already are J. Then everything will be O.K." It seems to be seldom realized that as long as government employees may legally band together under the ad versary relation of contemporary unionism such grievous violence is bound to take place. For laws to de clare both that governmental em ployees may unionize (I shall consis tently use ~his term in its present connotations) and that they.may not strike or employ goon squads or other supplementary violence amounts at one and the same time to sanction ing the view that government em ployees area class of persons need ing protection against an unfair, stronger party opposed to them (hence the right to coercively orga nize, to coercively collectively bar gain, and the like) and that they may not take certain other coercive action, e.g., strikes, use of goon squads, and so on, necessary to ef fectuate their protection against that unfair, stronger party which op poses them.

Naturally enough, this incoherent injunction is rejected with a clear conscience by union· members and leadership and not insisted on by the public. Even third party arbitra tion will seem to offer no effective alternative, unless it is not really third party at all but safely commit ted to the union side. For in the eco nomic realm there can really be no true third party: there exist but em ployees and employers. Thus the simple truth is: if government em ployees are legally entitled to un ionize they are entitled to strike, to use goon squads, and so on. This is a practical tautology and in the last analysis everyone recognizes it as such. Who Is the Employer? What is not often enough or seri ously enough considered is the claim that government employees have a legal right to unionize. But just here the most serious question is in or der. For what the adversary princi ple which underlies and sanctions this unionization dictates is that the 310 THE FREEMAN May employer of government employees is an opposing and even inimical party. But who is the employer? In a republican form of government like our own the sovereign is the people.

The school boards, legislatures, city councils, executive officers, courts, various bureaus of government that nominally do the hiring are agents of the sovereign people; thus, they are not the true employer; the sov ereign people are (as when I pur chase a house through an interme diary I am the true purchaser, not the intermediary). It follows from the adversary principle, therefore, that unionized government employ ees must be conceived and conceive themselves as being opposed by the sovereign people and consequently themselves as opposing and being aligned against the sovereign peo ple. Now·it is simple legal nonsense to suppose that the agents of a sover eign should be entitled to hire as employees of the sovereign persons opposed by definition and dedication to. him. It is compound nonsense to suppose that any group under a sov ereign is legally entitled to align it self, much less employ force, against the. sovereign. Only another sover eign can claim such a power.

In sanctioning the unionization of government employees, then, legis latures, courts, executive branches of government, and the like either engage in the legal absurdity' of sanctioning subjects of the sover eign of which they are the agents in aligning themselves, and even using force, against that same sovereign or they in effect set up a sovereign independent of the sovereign whom they represent which is aligned by definition and dedication against him. In either case, the representa tives or agents of the sovereign peo ple do what they cannot legally do: they betray the client whom· they represent; and since this is their sovereign, they in effect engage in treason; for in its broad, general sense «treason" denotes a breach of allegiance to one's sovereign. An Illogical Position As for the unionized employees of government themselves--I mean those who voluntarily unionize-they too do what they legally cannot do. In aligning themselves against their sovereign they assume the role of independent sovereigns. Indeed, in levying the sorts of demands that they customarily do, saying that un less this or that exaction be granted they will cut off this or that public service, they act as if they were the rulers of their sovereign. Thus, their actions and professions are the re verse side of the legal nonsense en gaged in· by legislatures and courts that sanction the unionization of government employees. Nor can it convincingly be objected that the sovereign or people have granted 1981 ADVERSARY UNIONISM 311 their employees these rights and powers by virtue of the fact that those legislatures and courts are their agents. For in a republican form of government the people can not alienate their own sovereignty.

But shall we want, then, to main tain that unionized government em ployees engage, like those who sanc tion their unionization, in treason? One is, I admit, disinclined to render such a harsh verdict. Certainly, for instance, we do not want to say that anarchists and others who oppose the government or the very exis tence of government are necessarily engaged in treason. And there is some good reason for our not want ing to. The basis of government in a Republic is presumed to be· consent of the governed. Presumably, there fore, a person who refuses to give his assent to be governed-say, an an archistis not really the subject of ~ sovereign. Thus, though he may engage in war against our sovereign he cannot be said to be engaged in treason, since our sovereign is not his sovereign. Actually, however, the case of the anarchist and the case of the union ized government employee are en tirely different. The anarchist does not in theory and need not in prac tice avow himself a subject of any sovereign. The unionized govern ment employee in a Republic, and in this argument I am limiting refer ence to sovereignty under a· Republic, cannot possibly claim that he has not avowed himself a.subject of the people's sovereignty. He did so when he claimed, as a citizen, the right to unionize. He did so when he voted to unionize and claimed that his vote had a certain status under law. He did so when he hired him self out, under the status of being a citizen, to the government. One can not have one's cake and eat it too!

Thus, a first impression to the contrary notwithstanding, the un ionized government employee again, I mean the employee who has voluntarily unionized-is, just as much as the legislatures and courts that sanctioned his unionization, engaged in a breach of allegiance to his sovereign and therefore, strictly speaking, in treason. But it is, on the face of it, legally incoherent for anyone to claim to have the right to engage in treason. Thus, on all counts, the unionization of govern ment employees has to be legally in coherent. The Unionization of Private Employees The common moral and legal ob jection to the unionization of private employees is that it abrogates the individual's moral and constitu tional rights of contract. And pa tently that is true. It would remain true, moreover, even if unions did not allow themselves the use of strikes, goon squads, and other sup312 THE FREEMAN May plementary violence. Their very subscription to coercive membership and coercive collective bargaining (can there be any other species of it?) is both in fact and in intent an abrogation of the right of individual contract.

Persons today are so inured, how ever, to constitutional and moral breaches of the right of c'ontract by all agencies of government, and in particular its courts, it hardly ex cites even the batting of an eye to note another occurrence of it. In ad dition, it has always been recog nized that there are certain things that one cannot legally or morally contract; for example, the commis sion of a crime. With a seeming le gitimacy, therefore, government can always make it appear that a re striction upon individual contract is justified by making a certain action illegal. To be sure, in many such cases a cart is being put before the horse. Mere statutory law is being allowed to in effect amend the constitution and determine constitutional law. It is not, though, always easy to deter mine just when this switch· of cart and horse has taken place. Imper ceptibly, merely eccentric view points harden into moral stand points and then it may seem that a new restriction upon individual con tract is the cart following the horse: that it has been dictated by a more privileged concern.

It is my impression, consequently, that attempting to rest the case against the unionization of private employees upon the right ofindivid ual contract is not likely to have much success. But even if the at tempt were to succeed it seems to me that an attack from our previous direction must be much more con clusive. To be sure, questions of sov ereignty and treason are not in volved in the unionization of private employees. But the adversary prin ciple is, and once again we shall find it creating insupportable incoher encies, though these will now prove to be more moral than legal in char acter. How Government Intervenes The unionization of private em ployees rests upon. the sanction of society and government. These de cree that certain conditions having been met-a majority vote of the employees, for example-the em ployer is required to accept the unionization of his ttshop."If he were not required by law to do so and if he were protected by law and gov ernment or even society in his re fusal to do so his employees would obviously not be unionized. The fact that employers are forced by gov ernment and law to accept and hire unionized workers is what we want to keep our eye on.

Now, we have already seen that unionization is based on the adver1981 ADVERSARY UNIONISM 313 sary principle. Once, then, an em ployer's working force is unionized we have a body of employees whose aims and interests are conceived as being intrinsically opposed. to those of the employer. Even if he .is not conceived to be their enemy (and typically he is by· union leadership and union principle) he is conceived to be their opponent and vice versa. . As an illustration of the· rational absurdi ty of this enforced condition, suppose that when one hired a cer tain lawyer to defend one in a suit the lawyer publicly represented himself as having interests and aims opposed to one's own in the suit and acted accordingly. Clearly he would be guilty of malpractice and cer tainly one should· want to dismiss him. Imagine, then, that one could not; that one was forced by·law and government to retain and use this lawyer who avowedly conceived his interest and aims to be opposed to one's own and who was acting ac cordingly! This would be tanta mount to forcing a person to sanc tion his own self-destruction. It would not only constitute the crime of us ing the law and agencies of an in nocent person's own government to injure him but the completely un natural indignity of making him lend a hand in his own injury. Visibly, this would be a piece of immorality in its most detestable form.

Now the employer who is forced to accept the unionization of his workers is in precisely the same position as the client who is forced to retain a lawyer who is avowedly and in fact pursuing interests and aims opposed to his own. In so forcing him the em ployer's own government is not only injuring him but forcing him to lend a hand to his own injury. We might add that it is not only government which is guilty of monstrous injus tice and immorality in this case but all the employees who are voluntary parties to the unionization in ques tion. They are active and knowing parties to the crime. They would be more honest and excusable if they simply conducted a lynching. It will be retorted, no doubt: ~~But the truth is that the employer and employees' interests and aims are opposed. Unionization simply takes account of· this fact." But that is wrong. An employer and employee's interests and aims are no more op posed than a client's and his law yer's. When a lawyer hires out to a client it is mutually understood that while engaged in working for the ciient the client's interest is the law yer's.

When a person hires out to any employer it rationally has to be his understanding that, while at work, the employer's interest is his inter est. To the objection that the em ployer wants to pay the employee as little as possible and the employee wants to be paid as much as possible we should want to point out that 314 THE FREEMAN what we have here is a theoretical picture of hiring phenomena which is based upon a view of persons which conceives of them as economic com puting machines: a far cry from ac tual persons! But even were this in actual practice the case, it would not' invalidate the claim that the only moral and reasonable relation ob taining between employer and em ployee is one in which, for a certain recompense, the latter makes the interests of the former temporarily his own. Conclusion If we have been correct in our rea soning, the unionization of govern ment employees stands as sheer le gal depravity and the unionization of private employees as sheer moral depravity. In both cases rational in coherency is foisted upon a society of potentially moral and law-abid ing individuals and upon some of their most basic inter-relationships.

It is no wonder at all, therefore, that William Henry Chamberlin in whatever society adversary unionization exists or is allowed to exist that society visibly sickens in proportion as unionization spreads and that pride of work, self-esteem, and production decline in tandem. What seems to be too little recog nized is that while unionization's adversary-whether the public or the private employer-suffers greatly, no one suffers quite such injury and hemorrhage as the unionized em ployee himself. We may, I think, state it as an inexorable fact that no unionized employee can be content with his work or with himself. We may, I think, state it as an inexora ble fact, everywhere confirmed, that he has to find gaining a livelihood changed from a challenge and ad venture and accomplishment into a drudgery as meaningless and vexa tious as slavery. This has to be, for in the same way that legal incoher ency makes whatever it touches dif ficult and unpleasant so must Inoral incoherency. @ IDEAS ON UBERTY THE STATUS of the medieval robber barons depended on their ability to deport themselves as above the law; and this is equally true as regards their modern successors. The rule of law, the conception that no one may do what is legally forbidden to others, is part of the fabric of a free society. But, where trade unions as organizations or their leaders and agents as individuals are concerned, this rule is more often broken than observed.