SPECIAL ANALYSIS

NATIONAL LABOR POLICY National High School Debate Series

AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH 1200-17TH STREET, N. W.-WASH/NGTON, D.C. 20036 THE AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH, established in 1943, is a nonpartisan research and educational organization which studies naHonal policy problems. Institute publications toke two major forms: l. LEGISLATIVE AND SPECIAL ANALYSES - factual analyses of current legislative proposals and other public policy issues before the Congress prepared with the help of recognized experts in the academic world and in the fields of low and government. A typical onolysis features: (1) pertinent background, (2) a digest of significant elements, and (3) a discussion, pro and con, of the issues. The reports reflect no policy position in favor of or against specific proposals.

2. LONG-RANGE STUDIES - basic studies of major national problems of significance for public policy. The Institute, with the counsel of its Advisory Board, utilizes the services of competent scholars, but the opinions expressed are those of the authors and represent no policy position on the part of the Institute.

ADVISORY BOARD

Pau I W. McCracken, Chairman Professor, Graduate Sch ool of Business Administration, University of Michigan Karl Brandt Loy W. Henderson Professor of Economic Policy Director, Center for Diplomacy Emeritus and Foreign Policy Stanford University American University Felix Morley Mi I ton Friedman Editor and Author Paul S. Russell Distinguished Service Professor of Economics Stanley Parry Univers ity of Chicago Pr ofessor, Department of Political Science University of Notre Dame Gottfried Haberler Galen L. Stone Professor E. Blythe Stason of ln temationa I Trade Deon Emeritus, Law School Harvard University University of Michigan

George E. Taylor Director, Far Eastern & Russian Institute University of Washington OFFICERS

Chairman Carl N. Jacobs Vice Chairmen Walter C. Beckjord Henry T. Bodman H. C. Lumb President Treasurer William J. Baroody Henry T. Bodman

Thomas F. Johnson Joseph G. Butts Director of Research Director of Legislative Analysis Howard Friend Earl H. Voss Director of Public Finance Analysis Director of International Studies 89th CONGRESS ANALYSIS NO. 12 FIRST SESSION JUNE 17, 1965

TABLE OF CONTENTS

PREFACE ------vi Chapter I. THE GROWTH OF LABOR UNIONS AND PUBLIC POLICY ------1 I. The Growth of Labor Before 1932 ------1 A. First Labor Unions ------1 B. Union Growth and the Business Cycle ----- 2 C. The Evolution of Union Structure ------3 D. Labor Unions and the Courts ------5 II. The Growth of Statutory Regulation of Labor Unions ------6 A. Norris-La Guardia Act (1932) ------6 B. The Wagner Act (1935) ------7 C. The Formation of the CIO ------8 D. Labor-Management Relations During World War II ------9 III. Taft-Hartley to the Present ------10 A. The Taft-Hartley Act (1947) ------10 B. The Landrum-Griffin Act (1959) ------12 IV. Labor Union Growth Trends and Collective­ Bargaining Activities ------12 A. Recent Labor Union Growth ------12 B. Collective-Bargaining Activities ------14

Bibliography ------17 II. THE LAW OF LABOR-MANAGEMENT RELATIONS ------20 Introductory Essay ------20 I. The Taft-Hartley Act of 1947 ------20 A. Union Unfair Labor Practices ------21 B. Other Provisions Affecting Unions ------22 C. National Emergency Strike Provisions ---- 22 D. Taft-Hartley and the Employer ------23 E. Taft-Hartley and the Individual Worker -- 23 II. The Landrum-Griffin Act of 1959 ------24 A. Landrum-Griffin and the Individual Worker:. Union Democracy ------25

i Chapter Page .II. (Continued) B. Landrum-Griffin and Trusteeships ------26 C. Landrum-Griffin Safeguards on Use of Union Funds ------26 0. Landrum-Griffin and Internal Union Affairs ------27 E. Landrum-Griffin Amendments to the Taft­ Hartley Act ------­ 27 F. The Right to Strike Under Taft-Hartley and Landrum-Griffin ------29 1. Strikes Contrary to Public Policy 29 2. Strikes During the Term of a Collective-Bargaining Agreement 29 3. Strikes by Government Employees ----- 30 4. Jurisdictional Strikes ------30 G. Mediation and Conciliation Service -----­ 30 III. The Railway Labor Act ------­ 31 IV. The Civil Rights Act of 1964 ------­ 32 A. The Civil Rights Act and the Employer --- 33 8. The Civil Rights Act and the Labor Union ------34 C. What Happens to State and Local Fair Employment Laws? ------­ 34 v. How the National Labor Relations Board Oper- ates ------35 VI. The Antitrust Law and Organized Labor ------­ 37 VII. State Regulation of Labor Management Relations 37 A. Types of State Labor Relations Acts ----- 37 1. "Little Wagner Acts" ------37 2. "Little Taft-Hartley Acts" ------38 3. "Little Landrum-Griffin Acts" ------38 4. State Right-to-Work Laws ------38 8. Enforcement and Administration of State Labor Relations Laws ------­ 38 C. Relations Between State and Federal Law - 39 VIII. Conclusion 40 4 Questions for Discussion and Review ------2 Bibliography ------44 III. COMPULSORY ARBITRATION ------46 I. Introduction ------46 II. The Debate Proposition ------46 A. Program of Compulsory Arbitration ------46 B. Basic Industries ------47 C. Labor-Management Disputes ------48

ii Chapter Page III. (Continued) III. The Case for Compulsory Arbitration ------48 A. Do Serious Problems Exist Now?------48 B. Is the Problem Inherent?------53 c. Will Compulsory Arbitration Solve These Problems? ------55 IV. The Case Against Compulsory Arbitration ------57 A. There Is No Serious Problem ------57 B. Is the Problem of Strikes in Basic In­ dustries Inherent in the Present System? ------60 c. Will Compulsory Arbitration Solve the Problem? ------61 D. Will Compulsory Arbitration Create Greater Problems Than It Will Solve? ------62 Questions for Discussion and Review ------65 Bibliography ------66 IV. THE FUTURE OF INDUSTRY-WIDE COLLECTIVE BARGAINING - 77 Introductory Essay ------77 I. What is Industry-Wide Collective Bargaining? - 77 II. Development and Functions of Industry-Wide Bargaining ------79 A. Who Desires Industry-Wide Bargaining? --- 80 B. Why Does Labor Often Favor Industry-Wide Bargaining? ------81 C. Why Do Some Employers Favor Industry-Wide Bargaining? ------82 III. The Case Against Industry-Wide Bargaining ---- 84 A. Does Industry-Wide Bargaining Hurt the Economy and the Public Interest? ------84 1. Is Industry-Wide Bargaining A Cause of Inflation? ------84 2. Industry-Wide Bargaining and the Threat of Strikes ------87 3. Industry-Wide Bargaining and the Economy: Other Problems ------88 B. Does Industry-Wide Bargaining Hurt Em­ ployers and Management? ------89 C. Does Industry-Wide Bargaining Hurt Or­ ganized Labor and the Worker? ------91 IV. The Other Side: The Case for Industry-Wide Bargaining------92 V. The Affirmative Plan: How Might Industry-Wide Bargaining Be Outlawed? ------93

iii Chapter Page IV. (Continued)

A. Restrict the Industrial Size of Unions -- 94 B. Prohibit Bargaining With Competing Employers ------�- 94 C. Restrict the Geographical Size of Unions- 95 D. Prohibit Industry-Wide Bargaining Activi­ ties by Unions of Any Size ------95 E. Prohibit Interference With the Autonomy of the Local Union ------96 F. Subject Organized Labor to the Antitrust Laws ------96 G. Prohibit Industry-Wide Bargaining Which Tends Substantially to Lessen Competi- tion ------98 H. Conclusion: Implications for the Debater 99 Questions for Discussion and Review ------100 Bibliography ------102

V. A NATIONAL RIGHT-TO-WORK LAW ------108

Introductory Essay ------108 I. What is A Right-to-Work Law? ------109 II. Union Security Under Federal Law ------109 A. Taft-Hartley Bans the Closed Shop ------110 B. Landrum-Griffin Permits the Return of A Limited Closed Shop ------110 c. Union Security Under the Railway Labor Act ------111 D. What Forms of Union Security Does the Present Law Permit? ------111 III. The Case For Voluntary Unionism ------114 A. Workers Should Not Be Forced To Join Unions Because It Violates Their Basic Rights ------114 1. Should Workers Be Forced to Support Corrupt Unions? ------115 2. Should A Worker Be Forced To Remain In A Union Which Supports Political Doc­ trines And Candidates Which May Not Be His Own? ------116 3. Should Individuals Be Forced to Join Unions Which Practice Discrimina­ tion? ------117 4. Should Individuals Be Forced to Sup- port Unions Expelled by the CIO on Charges Involving Communist Leader­ ship or Supporting Communist Activ­ ity? ------�------117

iv Chapter Page V. (Continued) B. Compulsory Unionism Places Too Much Power in the Hands of Union Leaders 118 c. Voluntary Unionism Would Improve Unions - 119 D. Are These Problems Inherent in Com- pulsory Unionism? ------119 E. Will Voluntarism Solve These Problems? -- 120 IV. The Case for Compulsory Unionism ------120 A. Is There a Serious Problem? ------121 B. Compulsory Unionism Places Too Much Power in the Hands of Union Leaders ------123 c. Are These Problems Inherent? ------124 D. Proposals to Abolish Union Security Clauses Would Create New and More Seri- ous Problems ------125 V. State Right-to-Work Laws ------126 A. Taft-Hartley Section 14(b) and State Right-to-Work Laws ------126 B. Possible Federal Approaches to Union Security ------127 C. Types of State Right-to-Work Laws ------129 D. Interpretation and Enforcement of Right­ to-Work Laws: State Courts or NLRB? -- 130 E. Conclusion: Roundup of the Issues to be Debated ------131 Pending Bills to Nullify State Right-to-Work Laws ------132 Questions for Discussion and Review ------133 Bibliography ------134

v PREFACE

This Special Analysis is concerned exclusively with the issues presented by the 1965-66 high school debate problem area: What Policy in Labor-Management Relations Will Best Serve the People of the United States? It is being published by the American Enierprise Institute in response to many requests from high school debaters and coaches for back­ ground materials and references on the subject of the debate propositions. The Special Analysis was prepared by Professor John A. Lynch, Director of Debate at St. Anselm's College, Manchester, New Hampshire, and Professor Robert M. O'Neil of the University of California Law School at Berkeley. Both authors come to the project with extensive backgrounds as debaters and debate coaches. This analysis should not be construed as reflecting any policy position on the part of the American Enterprise Institute. The authors wish to stress at the outset that they are not experts in the subject matter of the resolutions •. They have, however, tried to assemble, organize, and present authoritative material in such a way as to assist debaters seeking to delineate and explore the central issues raised by the national debate propositions. This analysis is not intended to provide a complete manual nor an end to the debater's research but is designed rather to serve as a guide to the start of research and a stimulus to its continuation. To this end, an extensive bibliography has been included ai the close of each chapter, listing many more references than those which have been directly quoted or cited in the footnotes which accompany the chapter's text. The first chapter presents a brief history of the growth of labor unions and public policy in labor-management relations. The second chapter describes the operation of law within labor-management relations. The final three chapters deal with the three specific debate topics. The American Enterprise Institute and the authors wish to express their deep appreciation to the following persons who have read the manuscript and offered valuable suggestions in its final preparation: Mr. William Boyd, Debate Coach, New Trier Township High School, Winnetka, Illinois; Mr. Malcolm Bump, Debate Coach, Hendrick Hudson High School, Montrose, New York; Mr. William Dibrell, Debate Coach, San Marcos High School, San Marcos, Texas; Mr. Albert Higgins, Debate Coach, Emporia High School, Emporia, Kansas; Professor Charley A. Leistner, Director, The National Office, The Committee on Discussion and Debate, National University Extension Association, University of Oregon, Eugene, Oregon; Brother Robert Maguire, Debate Coach, Junipera Serra High School, Gardena, California; Dr. William Reynolds, Director of Debate, Georgetown Univer­ sity, Washington, D. C.; Mrs. Anne Stilson, President, Washington State Debate Coaches Association and Debate Coach, Oakesdale High.School, Oakesdale, Washington; and Mr. Lloyd Weinreb, U.S. Department of Justice. The authors also wish to thank the Legislative Reference Service, Library of Congress, and Mr. Farrell Seiler, a student at St. Anselm's College, for generous advice and assistance in preparing the bibliography.

vi CHAPTER I

THE GROWTH OF LABOR UNIONS AND PUBLIC POLICY

This chapter will discuss labor unions and public policy af­ fecting labor-management relations in three separate periods. During the first period, labor unions grew in an environment which produced very little legislation affecting them. We shall see how in the second period, from 1932 to 1947, legislation entered the picture both to en­ courage the growth of labor unions and to support labor's objectives in collective bargaining. Finally, we shall examine the period since 1947, during which the Federal Government has assumed a more neutral role be­ tween labor and management. Let's now turn to the early history of labor unions in this country.

I. The Growth of Labor Before 1932 A. First Labor Unions

The history of trade unionism in this country is frequently dated from 1794, when a local union was formed by journeymen cordwinders (shoemakers) in Philadelphia. 1/ Within the next ten years, unions of shoemakers, carpenters, and printers were founded in Baltimore, Phila­ delphia, Boston, New York, and other cities. No attempt is made here to describe this development in detail. The purposes for which workers joined these first unions were basically the same as the purposes of workers who join unions now: to improve wages and working conditions. The first trade unions were, however, organized by skilled workers, who were not the lowest paid or most unskilled workers. It was not the introduction of machinery into the productive process (the industrial revolution) that led to the creation of the first labor unions, rather it was the broadening of markets which resulted from improvements in transportation. As the means of transportation were de­ veloped, goods produced in one area began to move more freely into other areas. This expansion of markets led to extensive competition in the sale of goods; shoes made in Boston, for example, competed with shoes made in Philadelphia. Merchants, who acted as middlemen, played off the shoe manufacturers against each other and forced them to cut prices, which often led to lower wages. Market growth led also to a division of labor and the development of larger shops. Under these conditions more money was required to stay in business, and it was more difficult for a journeyman (worker) to rise to the master's class (shop owner). In some skilled trades, there ap­ peared for the first time a working class, the members of which had little

1/ Lloyd G. Reynolds, Labor Economics and Labor Relations (Englewood Cliffs, New Jersey: Prentice Hall, Inc., 1959), p. 30.

- 1 - chance to become masters. Division of labor reduced the element of skill in the productive process, and the semi-skilled workers became common. As the need for workers decreased, his earning power was increasingly threat­ ened. Early unionism grew also in some local market areas, such as the printing and construction trades. �n these cases improved transportation increased the mobility of workers rather than the flow of goods. Printers and carpenters moving from city to city were used by employe�s to under­ cut local wage scales. The first unions were strikingly modern both in objectives and in methods. Regulation of wages was the main issue and the strike the main weapon. There was little collective bargaining as such. The union told the employer the wage rate on which it insisted and struck if the employer did not accept it. Union members refused to work with non-union men. The union shop, like the union wage-scale, was enforced by a pledge among mem­ bers not to work for anyone who employed non-union workers. B. Union Growth and the Business Cycle An important characteristic of most labor unions until recently was their inability to withstand business depressions. Typically, they have flourished during good years and declined during depressions. This was particularly true of early unions. The reasons for cyclical fluctua­ tions in membership are fairly obvious. 1/ Depressions usually created pressures upon employers to cut wages. A union was then faced with an un­ pleasant choice. It could accept wage cuts, which often caused workers to lose interest in the unions; or it could strike against the wage cut, in circumstances in which it stood a good chance to lose the strike, and, consequently, suffer a decline in membership. Depressions also brought unemployment. Unemployed workers could not afford to pay union dues; be­ sides there wasn't much sense in retaining union membership when the union wasn't producing any direct benefits. During prosperous periods men were working and could afford to pay dues. At the same time their standard of living was threatened by the rising prices which are characteristic of prosperous periods. They looked to the union to protect their living standard by demanding wage in­ creases. When business conditions were good, most employers were more likely to grant wage increases so that strikes could be avoided. The union was thus able "to deliver the goods" for its members, and this served asanadded inducement for additional workers to join. Despite the fluctuations in union membership during business cycles, union member­ ship grew in the long run. Each recovery period brought an increase in both the number of unions and total union membership.

lf Ibid., pp. 36-37.

- 2 - C. The Evolution of Union Structure There are four main types of organizational unit in the trade union world: local unions of workers in a particular trade or industry; city and state-wide federations of local unions, regardless of industry; national unions of workers in the same trade or industry; and peak fed­ erations of the national unions, such as the AFL-CIO. These organizational units represent separate stages of develop­ ment. The first local union was the Philadelphia Shoemakers Union founded in 1794. Next in order of development came the city federations of local unions, the first of which were founded in New York, Philadelphia, and Baltimore in 1833. The first national union which has had a continuous national existence is the International Typographical Union founded in 1850. The first federation of national unions which has had a continuous history to date was the American Federation of Labor (AFL) founded in 1886. There was an earlier attempt to create a national labor organi­ zation called the Noble Order of the Knights of Labor. Beginning in 1869, in Philadelphia, the Knights of Labor was a secret society made up of a handful of garment cutters led by Uriah S. Stephens, which set out to or­ ganize workers into craft bodies along local lines. The intention was to· develop a centralized national society with centralized direction of policy but operating· through local and district assemblies. The first local as­ semblies were trade groups; it was not until later, when the Knights be- gan to penetrate small towns, that the "mixed assemblies" entered the picture. In the late 1870's, organization was on a geographic rather than a trade basis. A union of \\Orkers of all trades and even some farmers became a cardinal objective of the Knights. Under the new leadership of Terrence V. Powderly, secrecy was abandoned and advocacy of strongly anti-capitalist reform programs were advanced. But while the leadership became absorbed in advancing the cause of social and economic reform, the rank and file were more interested in aggressive action to improve wages and working conditions. And although the leadership1 preferred arbitration and conciliation to strikes, in the 1870 s the Knights became active in a series of railroad strikes. During the prosperity of the 1880's, membership expanded rapidly and here reached a peak of 730,000 members by 1886. After 1886, the national organization disintegrated and membership declined just as rapidly as it had grown. Most of the skilled craftsmen moved into the newly organized AFL. Various reasons have been advanced for the Knights of Labor down­ fall. The workers were generally not interested in the political and re­ formist activity of the leadership. Many of the unskilled and semi-skilled workers who initially joined enthusiastically became discouraged and soon dropped out. Most of the strikes in which the Knights became involved after 1886 were lost, mainly because of inadequate central direction and financing. Finally, many skilled workers were never enthusiastic about their association

- 3 - with the unskilled and semi-skilled and their leadership took them into the AFL. The original steps toward the formation of the AFL had been taken in 1881 when Organized Trades and Labor Unions was founded. In 1886, this organization was reorganized as the American Federation of -Labor by Samuel Gompers, who remained its president until his death in 1924. The new federation reflected Gompers' philosophy of trade unionism. He believed that a union had more bargaining strength with employers if it was organized along craft lines; for example, carpenters, cigar makers, printers, etc., should be organized into separate unions. He believed that the almost ex­ clusive job of unions was to bargain with employers for better wages, shorter hours, and improved working conditions, and that unions should largely stay out of politics. The labor movement had experimented with political action and labor parties since the 1830's. Gompers and his group believe that mix­ ing in politics had achieved nothing in the past but had served mainly to split unions and to divert them from their main business. He did feel, how­ ever, that working men should "reward their friends" in government by vot­ ing for them regardless of party. Unions, he thought, could gain more through the established.political parties, by voting for labor's friends, getting labor's demands written into party platforms, lobbying in Congress and state legislatures, and so on. Early AFL leaders insisted also that each separate trade union be autonomous in its own area. The Federation entered the scene to define and enforce the jurisdictions of its member unions. It was, in short, a confederation of sovereign bodies. Its chief function was to define juris­ diction over trades and i'ndustries and avoid dual unions or competition between rival unions in the same skills or industries. The AFL provided a model of organization that was well-suited to the requirements of the skilled trades. It stimulated the formulation of new national unions and acted as a stabilizer of union leadership. It provided a program that enabled its members to make direct gains on an economic front and, at the same time, avoided the kind of unfruitful ideas and programs that had dissipated much of the energy of the Knights of Labor. Except for the railroad unions which were not affiliated with the AFL, the AFL represented almost all of the story of American unionism for almost fifty years. Between 1900 and 1915, union membership rose from 200,000 to almost 3 million- - IIiost of this growth occurring in the AFL. During the World War I era (1916-20), union growth rose to al­ most 6 million. Three factors assisted this growth: economic prosperity, high employment stimulated by a wartime and postwar economy, and a favor­ able governmental climate. When the United States entered World War I, AFL leaders agreed with President Wilson that they should refrain from strikes during the war, and cooperated in the war production program. In return, the President established the principles that unions were free to organize and that workers should be free to join unions of their own choos­ ing without interference from employers. There was great growth of new unions in manufacturing, particularly in the steel, textile, and meatpack­ ing industries. These unions were organized on an industrial basis rather

- 4 - than the craft basis of the AFL, and were strikingly similar to the CIO unions which will be described below. The inexperience of these new unionists, the depression in 1920-21, and an aggressive anti-union drive by employers, however, brought a drastic decline in union membership after 1920. The older unions established prior to World War I retained most of their membership, but the manufacturing unions created prior to 1920 were almost entirely wiped out.

D. Labor Unions and the Courts From the beginning, labor unions have been subject to public con­ trol in the form of laws administered either by the courts or more recently by �n administrative agencY such as the National Labor Relations Board. This aspect of unionism will be described in detail in Chapter II. There are two main types of legal rule: statutory rules enacted by Congress or state legislatures, and common-law rules developed in judicial decisions. Until 1932, there were few statutes which dealt with labor disputes. Prac­ tically all labor disputes were subject to common-law rules and precedents, and these were administered by the courts.

In the early nineteenth century, labor disputes frequently were brought into the courts. Both English and American courts declared that many types of union activities involved criminal conspiracy punishable by fine or imprisonment. In some cases, union activities designed to raise wages or to reduce working hours were held lawful, but other objectives, such as the closed shop were held unlawful. In general the legal status of labor unions remained in considerable doubt until the case of Common­ wealth vs. Hunt, was decided in 1842. In that case Chief Justice Shaw of Massachusetts held that union activities were not illegal in themselves and that their legality depended on their objectives. He further held that the closed shop was a legitimate union objective and that a strike to obtain it was not illegal. After this decision the criminal conspiracy doctrine ceased to be a factor in labor disputes.

Labor union difficulties with the courts, however, were by no means over. While they came to be considered lawful associations, there still remained the important question, "Lawful for what?" What types of activities could unions lawfully pursue, and what types of activities were they forbidden to pursue? Between 1842 and 1930, the courts in several of the states found many forms of activities which unions employed in the pur­ suit of their objectives unlawful and some of these prosecutions resulted in criminal prosecution of the union leaders involved. During the 1880's, employers regularly went into courts to seek injunctions. The labor injunc­ tion, used in hundreds of labor disputes between 1880-1930 in both state and federal courts, was a court order designed to prevent threatened damages before they occurred, under circumstances in which later resort to the courts would not provide an adequate remedy. 1/ "Government by injunction" became one of the worst epithets in the labor-leader's glossary. 1/ Chapter II will explain this procedure more fully.

- 5 - An indirect result of these labor injunctions was that they stimulated union interest in political activity. Unions took an interest in the election and appointment of judges. They also appealed to Congress and state legislatures to enact legislation which would legalize union activities, and, at the same time, forbid the courts to interfere with their activities. It was not until 1932 when Congress passed the Norris-La Guardia Act, that unions succeeded in this goal.

Union leaders believed that they had reached this goal when Con­ gress passed the Clayton Act in 1914. The Act contained a long list of strike activities which were declared lawful, and provided that the courts should not issue injunctions against these activities. The courts, how­ ever, had the. last word. In 1921, the Supreme Court, pointing to the use of the words "peaceable" and "lawfully" in the statute, concluded that the courts had always recognized the right of labor unions to engage in peaceful and lawful activities, and that, in ef feet, the law had changed nothing. It was still the court's business to decide what activities were peaceful and lawful.

Despite the Clayton Act, the courts continued to exercise control of labor disputes. Labor unions went back to Congress to gain relief from the injunctive process, and these efforts finally succeeded in 1932 when Congress passed the Norris-La Guardia Act.

II. The Growth of Statutory Regulation of Labor Unions

A. Norris-La Guardia Act (1932)

The Norris�La Guardia Act marked the beginning of a new era in labor law. Why did labor finally win its struggle? The most probable ex­ planation is that the widespread unemployment resulting fr.om the Great De­ pression provided a change in the attitude of Congress. The unemployment of millions in the 1930's seemed to provide clear evidence of the impotence of the individual in the face of economic catastrophe. In this situation the individual was powerless; he could only improve his position through organization. The Preamble of National Labor Relations Act of 1935 included a statement that the Depression had been caused by the maldistri­ bution of income and that only through the efforts of organized labor to secure a fairer distribution of income that purchasing power could be re­ stored and the economy kept on an even keel. Regardless of the economic soundness of the argument, this statement recognized that the individual, through organization, had a large and important role to play in society.

The Norris-La Guardia Act was also known as th.e Anti-injunction Act. It did not ban the injunction altogether but curbed its issuance by federal courts. It laid down a series of sweeping restrictions on the is­ suance of injunctions, and provided that only under the most rigid conditions, including an offer of arbitration by the employer, could an injunction be is­ sued by the court. The procedure to be used by the courts in issuing injunc­ tions was also materially altered. The employer was required to prove that

- 6 - the police were unable or unwilling to protect his property. A jury trial was permitted in court proceedings involving an injunction. These and other provisions of the Act made it much harder to secure a labor injunction and gave the union involved an opportunity to present its case. The Act was followed by anti-injunction acts in most industrial states, which were patterned after the federal act.

Government soon moved beyond this, however, to give further sup­ port and protection to labor unions in their organizing and collective bargaining procedures. Such a policy was pursued in the National Indus­ trial Recovery Act of 1933 and more specifically in the National Labor Re­ lations Act of 1935, usually referred to as the Wagner Act after its prin­ cipal sponsor.

B. The Wagner Act (1935)

The philosophy of the Wagner Act is essentially as follows. It is desirable that the terms and conditions of employment be regulated by collective bargaining between management and labor unions. It is also de­ sirable that the workers should organize strong and stable unions as soon as lossible. Workers should not be required to join unions, but unions shJuld be given a free rein in presenting their case to them, while the e�ployer remains on the sidelines. The Act took the position that a worker's decision concerning union membership was none of the employer's business. Its authors assumed that if pressure from employers were removed, most work­ '.ers would choose to join unions in the near future.

The main provisions of the Wagner Act were: employees were to J have the right to organize into trade unions, to bargain collectively I through their elected representatives, and to engage in other concerted activities for their mutual self-protection. To insure these rights, em­ ployers were prohibited from carrying out certain anti-union tactics desig­ nated as unfair labor practices. The five unfair labor practices forbidden to employers were: (1) interference with, or restraint or coercion of, em­ ployees in the exercise of their rights under the Act; (2) domination of, interference with, or financial support of a labor organization; (3) dis­ \ crimination to encourage or discourage union membership except where a I closed or union shop was established by agreement with a majority of em­

I ployees; (4) discrimination against an employee for filing charges or giving testimony under the Act; and (5) refusal to bargain with the legal representatives of the employees. Once a union was established within a plant or other bargaining unit, the union was to be the exclusive bar­ gaining agent, and was to bargain for all employees within the unit, union and non-union alike. The Act provided also that where some doubt existed as to the majority status of the union, the matter could be determined by secret ballot or some other suitable method. Administration of the Act was entrusted to a National Labor Relations Board, which was made responsi­ ble for prosecuting unfair labor practices by employers and deciding dis­ putes over union representation.

- 7 - In addition to this federal Act, many states passed similar laws often referred to as "little Wagner Acts." Encouraged by this type of government protection and assisted by rising employment, union mem­ bership grew from four million in 1935 to nine million by 1939. It was not all smooth sailing for the trade unions, however. Unions engaged in a series of strikes, often involving mass picketing, sitdown strikes, and even violence in their efforts to gain employer recognition. The newly created National Labor Relations Board also experienced its own difficul­ ties, involving heavy case loads, inadequate staff, and the need to build up precedents in solving disputes.

C. The Formation of the CIO As the growth of union membership demonstrates, the protection afforded by the Wagner Act provided the unions with an unparalleled op­ portunity to expand. Granted government protection from employer opposi­ tion, the organizing potential was enormous. Most of the mass-producing industries (steel, automobiles, rubber, etc.) were largely unorganized. The question arose within organized labor as to how these industries should be organized.

When the Wagner Act was passed, most of the four million union members belonged to the APL, which was controlled by the presidents of the long-established craft unions in the building and metal trades. These officials insisted that workers possessing the skills and training which had been traditionally associated with their unions should be enrolled in them, regardless of the industry in which the men were working. This was known as the craft doctrine. It meant that machinists, in whatever industry, would be assigned to the machinists' un'ion. There was, however, a significant opposition to this policy within the APL. Powerful leaders of national unions, notably John L. Lewis of the United Mine Workers, advocated the formation of unions on an industry basis without regard to craft. Under this approach, there would be one union in the automobile industry, and all the automobile workers, regardless of craft or skill, would belong to it.

Finding no support in the official APL policy, a small group of labor leaders who advocated this industrial union philosophy, set up an unofficial committee to promote industrial organizations, with John L. Lewis as their spokesman. The APL executive committee declared that their action was a violation of federation policy and ordered them to disband the new committee. When they refused to do so, they and their unions were expelled from the APL and the Congress of Industrial Organizations (CIO) was born. The two federations were soon competing in their organizational efforts, and dual unionism, which the APL had always tried to avoid, entered the labor scene. It quickly became evident that the industrial philosophy was more appropriate than the craft philosophy in the mass-pro­ ducing industries. The United Automobile Workers, the United Rubber Workers,

- 8 - the United Steel Workers, the United Electrical Workers, and other in­ dustrially oriented groups organized by the CIO flourished. In time the Automobile Workers and the Steel Workers grew to organizations of over one million members; only the Teamsters within the AFL reached that size. In total numbers, however, the AFL remained greater. When the two federations merged in 1955, the AFL had twice the total membership of the CIO. When the'cro began to succeed in its organizing efforts, the AFL, was driven to accept workers without ski Us - - a group for whom it had pre­ viously shown little interest. The older established groups such as the Teamsters, the Machinists, and the Electrical Workers, in their rivalry with CIO industrial-based unions, began to enroll large groups of workers, regardless of craft. Indeed, in its rivalry with the CIO, the AFL chartered competitive organizations on an industrial basis. In time, this devel­ opment removed most, although not all, of the craft/industrial issue as a basis for division between the federations.

D. Labor-Management Relations During World War II

The entry of the United States into World War II on December 7, 1941, caused a significant change in the pattern of labor-management r-elations. After Pearl Harbor, this country became engaged in an all-out effort to win the war. Large segments of American industry converted to war-related efforts and most business and industry was in one way or another affected or involved in the war effort. Previous experience in war periods I had taught that extraordinary measures had to be adopted to avoid inflation

I because of shortages of goods. To stem the inflationary tide, Congress sanc­ I tioned the use of wage and price controls at the urging of the Roosevelt Administration. Even before wage and price controls were adopted, the leaders of organized labor pledged labor's full cooperation in the war effort and issued pledges that labor unions would not engage in strikes.

On January 12, 1942, President Roosevelt, by executive order es­ tablished the National War Labor Board to handle threatened labor disputes and also to sanction wage settlements reached in collective bargaining. The Board had four representatives each from labor, management, and the public. Initially, the Board's power to enforce its decisions was primarily moral; it depended also on the voluntary pledges of management and labor-­ "no strikes and no lockouts." By July, 1942, the War Labor Board arrived at a formula called "The Little Steel Formula," which it applied to wage contracts throughout the war. "The Little Steel Formula" was a wage formula established by the Board involving the United Steel Workers and the Bethle­ hem, Republic, Youngstown, and Inland Steel Companies. 'Ihe Board decided that the cost of living had risen 15 percent between January and July in 1942, and allowed wages to rise 15 percent.

As might be expected, strike activity drastically declined during the war. Strike activity during 1942 involved some 3,000 work stoppages, most of which were small, involved comparatively few workers, and lasted for short periods only. A large proportion of them were spontaneous and were not authorized by unions. From 1943 to 1945, strike activity increased.

- 9 - In 1943 this increase was due primarily to a series of strikes in the coal mining industry. Tiie number of man-days idle due to strikes tripled over 1942, with over two-thirds due to coal stoppages. Because of the nation's dependence upon coal, John L. Lewis and the coal miners won sig­ nificant concessions, which embittered other labor leaders who won fewer gains for their followers.

In response to the coal strikes of 1943 that Congress enacted the Smith-Connally War Labor Disputes Act over President Roosevelt's veto. Tile Act empowered the President to seize any struck plant which, in his judgment, threatened the war effort. Once the plant was seized fines and imprisonment were provided for those involved in any further work stoppages. President Roosevelt, despite his initial opposition, used this authority in some forty instances.

In all, some thirty-six million man- days were lost through strikes during the war. Yet many observers felt that the record on the whole was a good one. At the height of the coal strikes in 1943, War Labor Board Chairman William H. Davis noted that, to that point in the war, there had been 2,000 man hours worked for every hour lost through strikes. "It was the best this nation or any other nation has ever done in wartime or peacetime," Davis declared. 1/ Strike activity during the war often received headline attention in the press. Tilis factor, along with the great increase in strike activity immediately after V-J day, probably contributed heavily to a public demand that some measure be adopted to control strike activities which threaten the health and safety of the nation.

III. Taft-Hartley to the Present A. Tile Taft-Hartley Act (1947) During World War II, labor union membership increased from nine to fourteen million. Since the passage of the Wagner Act in 1935, union membership had more than tripled by 1945. Labor unions expanded their power into every major industrial sector of the American economy. According to Neil Chamberlain, a double movement was taking place; a very substantial weakening of public control was occurring at the same time that the power of the labor movement was growing. '!:./ As the war concluded, labor's newly acquired power was displayed in the growing wave of strikes that touched every major industry: oil, coal, steel, lumber, glass, automobiles, farm equipment, and railroads. Tilese and

Joel Seidman, American Labor from Defense to Reconversion (Chicago: University of Chicago Press, 1953), p. 150.

'!:./ Neil W. Chamberlain, Labor (New York: McGraw-Hill, 1958), p. 29.

- 10 - other industries were closed down by a seemingly endless succession of strikes, some 5,000 in the year following the close of the war. This strike activity came at a time when consumers were impatiently awaiting a flow of promised consumer goods, particularly durables such as auto­ mobiles, radios, refrigerators, washing machines, and especially new housing. Labor clearly demonstrated its power, but this power also af­ fected the welfare of society as a whole. There were complaints about the rel_ative lack of controls or, limitations over labor unions. Professor Chamberlain conunented: 1 Only in the light of this development in social and legal history can we understand the passage of the Taft-Hartley Act. That Act was supported and partly written by employers, it is true, who had much to gain by securing these gains over labor unions. But this was not a sufficient condition for the law's passage. The Taft-Hartley Act came in response to a reassess­ ment of the role of the labor union relative to the in­ dividual and relative to society at large, resulting in a considerable popular acceptance of the need for some types of control to be imposed on labor unions. y It is true also that many employers and newspapers blamed the Wagner Act for the wave of labor disturbances and other abuses in the exercise of labor's power. They contended that the treatment of union and management under the Act was inequitable; while the Act protected unions from unfair management practices, employers had no protection against unfair labor practices on the part of unions. Others complained that individual and minority rights were not sufficiently protected within unions.

Following the failure of several bills designed to restrict or correct labor's power to win congressional approval in 1945 and 1946, Congress passed over President Truman's veto, the Labor-Management Act of 1947, conunonly known as the Taft-Hartley Act, for its two principal sponsors. This Act remains the major federal legislation in the field of labor relations. It incorporates most of the Wagner Act but goes beyond the earlier Act. The worker is guaranteed the right to refuse to partici­ pate in collective bargaining as well as the right to organize. Employers, individuals, and the public are protected from- certain practices by labor unions, and the government assumes responsibility for such protection. The Wagner Act had assumed that once employers were permitted to organize on an equal basis with employees, collective bargaining would solve all the major problems in industrial relations without further government intervention.

Because of the omnibus nature of the Taft-Hartley Act, no attempt will be made here to review all of its major provisions. The following y Ibid.

- 11 - chapters will deal with these as the need arises, especially those pro­ visions dealing with strikes that affect the national interest (national emergency strikes) and those which affect the individual and union security (union shop, closed shop, and state "right to work" laws).

Estimates of the success of the Taft-Hartley Act vary; indeed, if everyone were satisfi�d with this Act, there would not be a need to debate current labor-management topics. Labor union leaders have denounced the Act; one has even referred to it as "a slave labor act." Many employers and some Congressmen wanted an even stronger act. Congress held extensive hearings on proposed revisions of the Taft-Hartley Act in 1953; however, no major revisions were adopted.

B. The Landrum-Griffin Act (1959)

The next major congressional legislation concerning labor unions was the Labor-Management Reporting and Disclosure Act of 1959, known as the Landrum-Griffin Act. It resulted from hearings held in 1957-58 by a Senate Select Committee on Improper Activities in the Labor or Management Field, under Chairman John McClellan of Arkansas. The investigation of the McClellan Committee disclosed dishonesty and maladministration within several large labor unions. Since existing labor legislation seemed un­ suited for controlling many of these practices, Congress passed the Landrum­ Griffin Act in 1959. We shall review the major provisions in this Act in the next chapter. In general, its provisions regulate the internal affairs of labor unions in order to protect the rights of individual members and to insure democratic procedures. The Act requires also that labor unions file copies with the Secretary of Labor disclosing information about dues, fees, re­ ceipts, property holdings, salaries, loans, and participation in insurance and pension plans. An additional part, Title VII, contains amendments to the Taft-Hartley Act.

IV. Labor Union Growth Trends and Collective-Bargaining Activities

A. Recent Labor Union Growth

During the past decade, the two most 'significant facts about the organized labor movement within this country have been the merger of the AFL and the CIO and the levelling off of overall union membership. The cleavage within the labor movement between the AFL and CIO had obvious disadvantages both politically and with respect to collective bargaining. Between 1937 and 1955, labor leaders in both federations made sporadic efforts to close-the breach, but for a number of reasons the ef­ forts broke down. Until 1945, both groups were making good gains in member­ ship andunit y was not a primary concern. Some within each group doubted the ability of the other to survive. Each group figured that it could defeat

- 12 - the other in a final str�ggle. There were serious jurisdictional strug­ gles between the two federations which AFL leaders argued. had to be settled before a merger. Finally, personal bitterne ss between John L. Lewis, Philip Murray (CIO president), William Green (AFL president), and other leaders who had been involved in the original split was an obstacle to unity.

By . the early 1950's many of these circumstances had changed. Organizational and membership stability had been achieved on both sides. Instead of expanding into new territory, the unions found themselves en­ gaging in competition for workers already organized. Inter-union "raiding" of membership increased to an uncomfortable· degree. The political climate also became increasingly less favorable to unionism. In 1947 the Taft­ Haitley Act imposed new federal restrictions on labor unions and restrictive st·ate laws increased. 1/ A Republican President was elected in 1952 de­ spite AFL and CIO opposition. I In late 1952, presidents Philip Murray of the CIO and William Green of the AFL died within a month of each other. The new presidents, Walter Reuther of the CIO anq George Meany of the AFL, soon reactivated a twenty-four man Joint AFL-CIO Unity Committee. Over the next two years this body succeeded in working out a "no raiding agreement" between most of the national unions on both sides, and later, the terms of the full merger. In December, 1955, the AFL and CIO held their last separate conventions and then met jointly for the first convention of the new American Federation of Labor and Congress of Industrial Organizations. Since the merger, George . Meany has served as president.

During the past ten years labor union growth has leveled-off. Overall union membership has remained about the same. Top growth was achieved in 1959 when total membership stood just over eighteen million. Re­ cent figures run around seventeen million. Predictions concerning labor's future growth or decline are a matter of conjecture. One observer has in­ dicated that the labor movement is-already in decline. 2/ Barkin points to the fact that many individual unions are shrinking in size, and that member­ ship in the total union movement has declined. The proportion of union members in the total work force has also gone down. Employees are not join­ ing unions in the vast numbers that they once did.

Several factors have affected union membership in recent years. First, by 1955 labor had already organized much of the "blue shirt" work- ing force--that part of the work force which most easily lent itself to union organization. Organizational efforts have to turn to employees among newer occupational groups like white collar personnel, professionals, and tech­ nicians. Organizers have found the going much tougher here. Those groups

y See Chapter II.

2/ See Solomon Barkin, The Decline of the Labor Movement (Santa Barbara, California: Center for the Study of Democratic Institutions, 1961).

- 13 - have never responded to unionism as well as have the skilled and produc­ tion workers. There has also been a considerable movement of industry toward the Southern United States from Eastern and Mid-western states. While the East and the Mid-west have responded favorably to union organiz­ ing efforts, the South has not. Automation and technological change within the employment areas where labor has been well-established have also contributed to declining membership. Total employment in such industries as steel, automobiles, coal,and telephmes msdeclinal, and this has reduced membership in the unions identif)ed with those industries. The net losses in these areas are not easily made up in the newer areas of employment. Despite these developments, labor is still strong. Union size has remained stable in recent years. Obviously, if the labor unions ap­ peared certain to disappear from the American scene, it would not make much sense to debate labor-management relations this year! B. Collective-Bargaining Activities Finally, some description of the various areas or ways in which collective bargaining takes place is necessary before we can proceed. The Taft-Hartley Act requires an employer to bargain with representatives of a majority of his employees "in an appropriate bargaining unit." But what unit is "appropriate"? At one extreme, a single employer may bargain with the representatives of a single craft. At the opposite extreme, an employer's association may bargain w.ith an industrial union over terms for all employees in an industry throughout the entire country. \ The scope of bargaining units reflects mainly the interests and attitudes of the unions and management concerned. Disputes between these two over what constitutes an appropriate bargaining unit are usually settled by the National Labor Relations Board. A great majority of the bargaining units in the United States includes only employees of a si_ngle company. However, between 80 to 100 percent of the workers under union agreement are covered by multi-employer contracts in a number of important industries: men's and women's clothing, building construction, hotels, longshoring, maritime, trucking, and warehousing. 1/ There seems to be a clear ten­ dency for the proportion of tmions covered by multi-employer contracts to increase over the course of time. The main pressure for multi-employer agreements stems from selling competition among employers in product markets. If different companies or­ ganized by the same union are in selling competition with one another, the agreements between the unions and the various companies cannot be kept separate. The unions cannot raise the labor costs of some plants so much above the general level that these plants are forced out of competition.

]! Reynolds, op. cit., p. 170.

- 14 - Employers paying the higher wage rates in an industry usually demand that unions bring those with lower wage rates up to their level. Unions them­ selves seek standard wage rates.

The area of the collective agreement is also strongly influenced by the geographical area in which employers compete in the sale of products. If competition is limited to the immediate locality, city-wide agreements are likely to develop. This situation usually exists in building construc­ tion, hotel and restaurant work, the newspapers and printing trades, milk and bread delivery, local trucking and warehousing, and laundry and dry­ cleaning employment. In these multi-employer bargaining arrangements, a master agreement is reached between the union and the companies.

Once a master agreement has been reached, enforcement of terms is usually left to the union and to individual employers. In some cities, em­ ployers form employer associations to assist their members in carrying out the terms of the agreement. A few have gone so far as to forbid members to settle grievances with the union without association approval. The pur­ pose of this policy is to prevent the union from whipsawing individual employers, i.e., securing more favorable treatment on a certain point in one plant than others, and then using these agreements to bring other plants up to a more favorable level.

Quite different is the situation in those industries, including the bulk of manufacturing, in which competition is regional or national in scope. Here the national union must take an interest in securing similar contract terms from competing employers. This does not necessarily lead to multi-employer bargaining. Most frequently a union tries to impose its program unilaterally through separate negotiations with individual employ­ ers. Usually the leading employer is singled out by the union. After ne­ gotiations have been completed and certain concessions extracted, the union insists that all other employees in an industry sign up to similar terms under the threat of a strike.

This technique, usually termed pattern-bargaining, may be illus­ trated by the procedure in basic steel. The contract terms to be presented to employers for a new contract are worked out first by the executive board of the United Steelworkers Union. They are then presented for discussion to a policy committee, consisting of some 250 delegates from the entire country. After the program has been ratified by the union policy committee, negotiations for a new contract are begun with the United States Steel Cor­ poration. Since U.S. Steel has long been the wage leader in the entire in­ dustry, it is generally understood that any agreement reached between it and the union will apply to the entire basic steel industry. After settle­ ment is reached with U.S. Steel, the union proceeds to sign contracts with other basic steel companies. While these resemble the U.S. Steel contract in most major respects, there are differences in detail, some of which might be quite important to the other steel companies and to the local unions. Finally, industry-wide bargaining on a regional or national basis exists presently in many industries: railroading, anthracite and bitlDllinous

- 15 - coal, hosiery, lumbering, canning, glass and glassware, longshoring, mer­ chant shipping, and over-the-road trucking. In many of these industries, the employers are numerous and relatively small. This makes it difficult for the union to find any firm prominent enough to establish an industry pattern. On the other side, the employers in smaller businesses cannot feel much confidence in their own strength and tend to band together for mutual protection and strength. Both the employers and the union find a master agreement convenient in enforcing minimum labor standards; thus "putting a floor under competition" in highly competitive industries. In some cases special circumstances create industry-wide bargaining. Exten­ sive federal control of the railroad industry under the Railway Labor Act and the Interstate Conunerce Conunission has been a major force in industry­ wide bargaining in that industry. Collective bargaining, in sum, presents about the same picture of concentration which one finds in the statistics of business size or union membership. There are over 100,000 collective-bargaining agreements in the United States. The great majority relate to employees of a single company and cover a relatively small number of workers. At the other ex­ treme, the ten largest agreements cover 100,000 or more workers and have a total coverage of over two million workers. These large agreements will clearly play an important part in debating this year.

- 16 - BIBLIOGRAPHY A. BOOKS AND PAMPHLETS

American Academy of Political and Social Science. Labor Relations Policy in an Expanding Economy. Philadelphia, 1961. American Management Association. Personnel Division. Industrial Relations Here and Now: Trends, Issues and Company Practices. New York, 1959. Bakke, Edward W. Unions, Management and the Public. New York: Harcourt Brace, 1960. Beal, Edwin F. The Practice of Collective Bargaining. Homewood, Illinois: R. D. Irwin, 1959. Bennett, Clarence E. Labor-Management Relations: Both Sides of the Union and Association Picture from the Public Viewpoint. New York: Exposition Press, 1959. Burtt, Everett J. Labor Markets, Unions and Government Policies. New York: St. Martin's Press, 1963. Chamberlain, Neil W. Sourcebook on Labor. New York: McGraw-Hill, 1964. The Labor Sector. New York: McGraw-Hill, 1965. Labor. New York: McGraw-Hill, 1958. Chamberlain, Neil W. and Kuhn, James W. Collective Bargaining. New York: McGraw-Hill, 1964. Chandler, Margaret K. Management Rights and Union Interests. New York: McGraw-Hill, 1964. Cole, David L. The Quest for Industrial Peace. New York: McGraw­ Hill, 1963. Cornell University. Labor-Management Conference. The Arbitration of Two Management Rights Issues. New York, February 4, 1960. Cronon, Edmund David. Contemporary Labor-Management Relations. New York: Holt, 1960. Davey, Harold W. Contemporary Collective Bargaining. Englewood Cliffs,New Jersey: Prentice-Hall, 1959.

- 17 - Evans, Hywell. Governmental Regulation of Industrial Relations: A Comparative Study of United States and British E?CPerience. Ithaca, New York: Cornell University, 1961.

Healy, James J. Creative Collective Bargaining: Meeting Today's Challenges to Labor-Management Relations. Englewood Cliffs, New Jersey: Prentice-Hall, 1965.

Kerr, Clark. Labor and Management in Industrial Society. Garden City, New York: Doubleday, 1964.

Lester, Richard A. Economics of Labor. New York: Macmillan, 1961. Northrup, Herbert R. �------Boulwarism: the Labor Relations------=-� Policy of the General Electric Company. Their Implications for Public Policy and Management Action. Ann Arbor: University of Michigan, 1964.

Reynolds, Lloyd G. Labor Economics and Labor Relations. Englewood Cliffs, New Jersey: Prentice-Hall, 1964.

Seidman, Joel. American Labor from Defense to Reconversion. Chicago: University of Chicago Press, 1953.

Selekman, Benjamin M. Problems in Labor Relations. New York: McGraw-Hill, 1964.

Slichter, Sumner H. and others. The Impact of Collective Bargaining on Management. Washington: Brookings Institution, 1960.

Solomon, Jack. Complete Handbook on Labor-Management Relations. Chicago: National Debate Research Company, 1959. Wirtz, W. Willard. Labor and the Public Interest. New York: Harper & Row, 1964.

8. PERIODICALS, ARTICLES, NOTES AND COMMENTS

Coleman, John R. "Public Policy, Collective Bargaining and Tech­ nological Change in the United States and Canada," Labor Law Journal (December, 1964), p. 802. Derber, Milton. "Management and Union Rights in Industrial Establishments,'' Current Economic Comment, Universi tv of Illinois (May, 1960), p. 3.

Shaffer, Helen B. "Future of Voluntary Collective Bargaining," Washington, Editorial Research Reports (December, 1959), p. 933.

- 18 - Simkin, William E. "Positive Approaches to Labor Peace," Industrial Relations (October, 1964), p. 37. Tjensvold, Reynolds 0. "A Longer Look at Labor Relations," Labor Law Journal (August, 1964), p. 542.

- 19 - CHAPTER II THE LAW OF LABOR-�Li\NAGEMEXT RELATIO�S

Introductory Essay

This chapter is a broad survey of the legal network that governs labor-management relations in the United States today. We begin with an analysis of the Taft-Hartley Act, particularly its sections on tmfair labor practices, emergency disputes, and guarantees to the individual worker. We turn next to the Landrwn-Griffin or Labor-Management Reporting and Disclosure Act of 1959. We find that this recent law deals with many matters other than reporting and disclosure by labor tmions. For example, it contains important amendments to the Taft-Hartley Act, and key provisions designed to achieve its two basic aims of greater internal democracy for the union member and great responsibility among union officers. As we survey the Landrum- Grif­ fin Act we will have to skip quickly over many complex provisions. In this chapter we consider also the Railway Labor Act, which governs labor rela­ tions in the railroad and ai;rline industries; the Civil Rights Act of 1964 as it affects tmions and employers; the work of the Federal Mediation and Conciliation Service in settling disputes; and the organization, cperations, and procedure of the National Labor Relations Board. Finally we consider the labor-management laws that a number of states have adopted. We look not only at their provisions and the way they are enforced, but also at the shrinking field in which the United States Supreme Court has allowed them to operate. Thus we conclude the chapter by striking the present-day balance between the scope of state and federal labor laws.

As we have just seen in Chapter I, some legal regulation of labor­ management relations in the United States has been essential. The labor movement was threatened at the time Congress provided protections in the _ early 30 's. Important interests of management and of the general pub lie have also demanded and obtained legal protection. Accordingly we have today a complex network of federal and state laws that govern almost all aspects of the labor-management relationship, from the baragining table to the picket line to the production line. These laws even regulate some internal opera­ tions of labor tmions, just as they restrict an employer's ability to hire and fire workers. In this chapter we shall try to survey this complicated network of laws, with special emphasis on the parts of it that bear on the three current debate propositions. Many laws can only be outlined sketchily, or may even have to be left out altogether because our space is limited. How­ ever, each of the major labor laws has been treated more extensively else­ where, and the references in the bibliography at the end of the chapter will tell the careful researcher where to turn.

I. The Taft-Hartley Act of 1947 As we saw in the first chapter, the earliest major piece of labor legislation passed by Congress was the Wagner Act of 1935. That law severely curtailed the freedom of employers in their dealings with organized labor, and

- 20 - in turn made it possible for unions to grow and develop under the protec­ tion of the National Labor Relations Board. By 1947 it was widely felt throughout the country that unions had become too strong, and that the time had come to push the pendulum back the other way. Thus the Congress under­ took a broad-scale, root-and-branch revision of the laws governing labor­ m.anagement relations, and came out with the Taft-Hartley Act.

The major developments wrought by the Taft-Hartley Act are these: (1) changes in the authority and procedures of the NLRB; (2) changes in the ri.glt to union recognition; (3) definition and prohibition of certain unfair labor practices on the part of unions; (4) definition and requirement of collective-bargaining procedures; (5) tentative and limited steps toward regulation of internal union affairs; (6) procedures for handling national emergency strikes; and (7) provisions for civil suits by and against labor unions. Many of these changes are of only limited interest for us, and we need only note in passing that they were part of the 1947 package. In many ways, then, Taft-Hartley did seek to correct what was felt to be an imbalance at the bargaining table. We shall now look more closely at the most pertinent features of Taft-Hartley.

A. Union Unfair Labor Practices

The Wagner Act listed certain practices by management as pro­ hibited unfair labor practices because they were detrimental to labor­ management relations and collective bargaining. But it contained no com­ parable provisions relating to union practices. Ta ft-Ha rtley enumerated six unfair labor practices for which l.lllions could be penalized. They are:

1. Restraining or coercing employees in the exercise of their guaranteed rights to engage in, or refrain from, collective bargaining. (In several ways Taft-Hartley encouraged and protected the interests of employers and employees who did not want union organization or membership.)

2. Causing an employer to discriminate against or discharge an employee for any reason other than the employee's refusal to tender (offer to pay) the periodic dues and initiation fees that were required as a condition of acquiring or retaining membership in the union. (Thus an em­ ployer could not be compelled to discharge an employee because he had failed, for example, to participate actively in the work of the union, or because he had opposed the officers of the local; the only valid basis for such pressure is the employee's refusal to pay his dues and other uniform fees or assessments of the union. Neither the union nor the employer can force him to do more.)

3. Refusal to bargain with an employer, when the union has been ·chosen as the representative of his employees. (This matches the provision of the Kagner Act, carried forward in Taft-Hartley, which requires an em­ ployer to bargain with the union in good faith.)

4. To engage in or to induce employees to engage in certain types

- 21 - of strikes, concerted refusals to work, or boycotts, which had such unlaw­ ful objectives as trying to force another employer to recognize a union which had not been certified by the NLRB.

5. Charging an excessive or discriminatory fee for membership in a union covered by a union shop clause.

6. Engaging in "featherbedding"; that is, charging or attempt­ ing to charge an employer for services not actually being performed by the union or its members.

B. Other Provisions Affecting Unions

In addition to the unfair labor practice provisions, Taft­ Hartley affected labor l.lllions in other ways. For example, the law required that a union seeking to use the facilities of the Labor Relations Board had to file a non-Communist affidavit; this provision was eventually re­ moved by the 1959 amendments. The 1947 statute also required reports and financial accounts from unions, limited the extent to which unions could make political contributions, and made certain rules for the administra­ tion of union welfare funds that were supported in whole or in part by employer contributions. Most of these limited provisions were eventually superseded by the more detailed provisions of the Landrum-Griffin Act in 1959. C. National Emergency Strike Provisions

By 1947 it was evident that the Federal Government needed more effective tools to deal with strikes and threats of strikes that might cripple the economy. The Congress borrowed from the Railway Labor Act a set of "national emergency dispute" provisions and procedures. Such a dispute is defined as one which affects an entire industry or a substantial part of an industry, and which imperils the national health and safety. When such a strike threatens, the President can appoint a board of inquiry to determine the causes and nature of the dispute and file a report. On the basis of the report, the President can ask the Attorney General to seek from the federal court an injunction or court order postponing the strike for 80 days. a "cooling-off period." If the strike is not settled within 60 days, the inquiry board makes another report on the positions and demands of the parties, which the President must release publicly. Then the �LRB conducts a secret ballot of the employees to determine whether they are willing to accept the employer's last offer. If the dis­ pute has not been settled by the 80th day, the injunction expires and the strike can begin--unless the President recommends and Congress adopts special legislation to forbid the strike. To summarize the emergency dispute procedure: The 80-day cooling­ off period is only a temporary delay; Congress alone can permanently enjoin the strike. Neither the President nor the courts can do that. It is hoped that when the procedure is set in motion, the widespread publicity, the

- 22 - work of the inquiry board, the bringing together of the parties during the croling-off period, and the secret ballot on the employer's last offer, may help to avert a major walk-out. But because of the essentially voluntary approach, Taft-Hartley has certainly not fully resolved the problem of emergency disputes and crippling strikes.

D. Taft-Hartley and the Employer

The employer was much less significantly affected than the union by Taft-Hartley for most of the employer restrictions of the Wagner Act were simply brought forward. The employer did, however, receive certain additional rights and privileges. Perhaps the most important of these was the "free speech" section, which provided that an employer's expression of his views, arguments or opinions could not be the basis of an unfair labor practice charge unless there was an actual threat of reprisal against the union, or a threat of force, or a promise of benefit. Thus employers could now speak during labor controversies with greater freedom than before, without fear that they would be found to have brought unfair pressure upon their employees, or interfered with their right to join or support a union. Another new Taft-Hartley provision declared that the NLRB could not order reinstatement of an employee or payment of back wages in any case where the employee was discharged "for cause." That was a phrase that had to be defined, but this new provision also gave the employer greater latitude in dealing with his employees. Finally, the Taft-Hartley Act improved the procedures that were available to the employer before the Labor Relations Board.

E. Taft-Hartley and the Individual Worker

The new law in 1947 benefited the individual worker in several ways that should be noted here: A number of significant changes were made in the procedure for union elections, and employees were enabled to "de-certify" a union which no longer represented a majority of the members of the bargaining unit. The Taft-Hartley Act also prohibited the com­ pulsory checkoff of union dues, a method by which union dues had auto­ matically been taken out of the worker's pay check and given directly to the union. Now union dues could be turned over only if the individual worker signed a written agreement to that effect, and in any case not for longer than a year at a time, or for the duration of the union con­ tract. The Taft-Hartley law made various changes in the way of determin­ ing the "appropriate unit" for collective bargaining--that is, the group of workers who would vote together on union representation. Finally, the 1947 law dealt in passing with the problem of racial discrimination by providing that an employer could not discriminate against an employee for nonmembership in a union or nonpayment of dues if he had reason to believe that membership was not available to that employee on the same terms available to other workers. This was in addition to the basic pro­ vision that no union could force an employer to discharge an employee for any reason other than refusal to tender the dues and other fees required by the union of all persons in the bargaining unit, who were represented by the union at the bargaining table.

- 23 - Much more could be said here about the way in which these new provisions worked during the years after 1947, and about the interpreta­ tion of the law by the Labor Relations Board. We must get on, however, to examine the several other important laws that directly affect labor­ management relations and bear closely upon the debate questions.

II. The Landrum-Griffin Act of 1959

The Taft-Hartley Act was passed twelve years after the Wagner Act. Another twelve years went by before adoption of the next and most recent major federal law concerning labor-management relations. In 1959 the Congress passed the Labor-Manageme�t Reporting and Disclosure Act (LMRDA) which is usually identified by the names of its sponsors as the Landrum-Griffin Act. This Act contained many provisions, grouped into seven titles, some of which we shall shortly examine.

The dozen years between 1947 and 1959 made itincreasingly evident that there were abuses in the labor field with which existing laws could not adequately deal. These abuses werebrrught into sharp focus by the investi­ gations of the McClellan Committee of the United States Senate during the late 1950's. There was dramatic evidence of corruption, coercion, violence, and racketeering in some sectors, although the bulk of the labor movement remained healthy and sound. These and other abuses generated the pressure within and upon the Congress to adopt new safeguards of the interests of the individual union member and for the general public. These safeguards had two main purposes--to prescribe minimum democratic procedures for in­ ternal union government, and to clarify and refine the congressional policy toward labor-management relations set down in the Taft-Hartley Act. In part this was accomplished by new provisions regulating internal union gov­ ernment; in part by amending the old Taft-Hartley sections. (For an out­ line of the structure of Landrum-Griffin, see Table I.)

TABLE I

Outline of the Landrum-Griffin Act

Title I: Bill of Rights of Members of Labor Organizations (Equal rights; freedom of speech and assembly; dues, initiation fees and assessments; protection of the right to sue; safe­ guards against improper disciplinary action; enforcement provisions.) Title II: Reporting by Labor Organizations, Officers and Employees of Labor Organizations, and by Employers. Title III: Trusteeships (Purposes for which a trusteeship may be es­ tablished; unlawful acts relating to labor organization under trusteeship; enforcement; reports to Congress.)

- 24 - TABLE I (continued)

Title IV: Union Elections Title V: Safeguards for Labor Organizations (Fiduciary Responsi­ bility of Officers of Labor Organizations; bonding; making of loans; payment of fines; prohibitions against certain persons holding union office.) Title VI: Miscellaneous Provisions (Investigations; extortionate picketing; retention of rights under other Federal and state laws; effect on state laws; service of process; Administrative Procedure Act; other agencies and depart­ ments; criminal contempt; prohibition on certain discipline by labor organization; deprivation of rights under Act by violence.) Title VII: Taft-Hartley Act Amendments

A. Landrum-Griffin and the Individual Worker: Union Democracy The Landrum-Griffin Act reforms designed to further union democ­ racy stressed two elements--the rights of individual union members, and the responsibilities of union officers. The former were secured through a "Bill of Rights" for unions which is in many ways similar to the Bill of Rights composed of the first ten amendments to our U. S. Constitution. In its essentials, the Landrum-Griffin Bill of Rights, contained in Title I of the statute, guarantees the following: (1) equal rights and privileges among union members to participate in union elections and meet­ ings, to discuss and vote on union business, under the constitution and by-laws; (2) strict limits on the ways in which dues and initiation fees can be increased to make sure that effective majority consent is secured before an incxease is imposed; (3) freedom of speech and assembly, in­ cluding the right to criticize the union and its officers, both within and outside union meetings, except where such criticism would seriously inter­ fere with the union's ability to perform its obligations; (4) the right to bring a lawsuit or an administrative action against the union, or to communicate with legislators about the union; (5) procedural safeguards against beingp.mi.shed, fined, or expelled from the union without specific charges, time to prepare a defense, and a fair hearing; and (6) the right to obtain on request a copy of the complete current collective·bargaining agreement between the union and the employer. In addition, the Bill of Rights provides that none of its sections shall take away or limit any existing right or remedy that a union member may have in a state or federal court or before an administrative agency. These rights are in addition to any others provided by any other law.

- 25 - The other way in which the Landrum-Griffin Act seeks to protect the individual worker is by imposing greater responsibility on union of­ ficers. In place of the Taft-Hartley non-Communist affidavit, the new law makes it a crime for a Communist (or one who has been a member of the Com­ munist Party during the past five years) to hold a union office ..!/ There are important and detailed provisions about the timing and the conduct of union elections. International Unions must hold elections of officers at least once every five years, and local unions at least every three years. Such elections must be by secret ballot, and open to all members in good standing. A member who claims an election has been invalid can seek to have the results set aside. Candidates for union office are entitled to examine a list of the eligible voters before the election. All candidates must be treated equally, and neither unions nor employers may spend money to support any candidate for union office. Thus the new law seeks to guarantee that there will be frequent and fair elections for the top union positions. B. Landrum-Griffin and Trusteeships

One particularly serious practice about which the Congress was con­ cerned was that of union trusteeships. Some union constitutions permit the officers or convention of the International Union to create a "trustee­ ship" or provisional government over a local union. This power has some­ times been beneficially used to save a local from imminent financial dis­ aster, or to rescue it from a threatened Communist takeover. But it has also sometimes been a tool for abuse by an unscrupulous International, and it was with the abuses that Congress was concerned. Thus Title III of Landrum-Griffin declared that the trusteeship device could be used only under certain conditions: (1) to remedy corruption or financial dishonesty; (2) to assure the performance of collective bargaining agreements that are in serious trouble; (3) to restore democratic procedures; or (4) otherwise to carry out, where necessary, "the legitimate objects of such labor or­ ganization." Obviously this provision gives the union a good deal of latitude in using the trusteeship device, but the new law attempts to cut down that latitude somewhat. It is still too early to know how effective it will be. C. Landrum-Griffin Safeguards on Use of Union Funds

Under Title V of the Landrum-Griffin Act, union officers at all levels must hold any union funds which are under their control solely for the benefit of the union and its members. Officers may not hold or acquire any business interest or position which conflicts with the interests of the union. Everyone who handles union money must be "bonded" (that is, in­ sured) for a certain percentage of the funds he handles in case he should embezzle or abscond Theft or embezzlement of union funds is made a

This section of the Act was declared unconstitutional by the Supreme Court on June 7, 1965 (U.S. vs. Archie Brown).

- 26 - serious federal crime. The law also forbids unions to pay the fines of any llllion officers convicted of violating any LandrtDil-Griffin provisions. Another section limits the amount that any officer or employee may borrow at any one time from the Union treasury.

D. Landrum-Griffin and Internal Union Affairs Al though the official name of the 1959 law is "the Labor-Manage­ ment Reporting and Disclosure Act" the sections that deal with reporting and disclosure are relatively minor compared to those we have already dis­ cussed. In order to keep a tighter rein on internal union affairs, the new law does require certain reports about union finances, and requires each union to submit copies of its constitution and by-laws. The necessary information is somewhat more detailed than the information that was required by Taft-Hartley. The major difference between the two laws, however, is not in the amollllt of information called for but in the enforcement of these reporting requirements.. The penalty under Taft-Hartley was the loss of the llllion's privileges before the National Labor Relations Board. It was folllld, however, that some unions could operate almost as effectively with­ out these privileges. Thus the LandrtDil-Griffin Act makes it a federal crime to fail to file the information demanded by the new sections. The penalties are quite severe.

Every labor union is required to adopt a constitution and by-laws and to file copies with the Secretary of Labor. In addition, if these doct.Dnents do not prescribe the qualifications for membership, then a detailed description of those qualifications must also be on file. Provisions deal­ ing with nt.Dnerous internal affairs of the union must also be reported to the Secretary if they are not contained in the constitution and by-laws. Finally, the new law requires requires rather detailed annual financial re­ ports and other financial information, so that the Secretary of Labor can keep a fairly close eye on the honesty and fiscal stability of the union.

E. Landrt.Dn-Griffin Amendments to the Taft-Hartley Act

In addition to the new provisions we have already examined, the Landrt.Dn-Griffin Act also amended some of the existing provisions of the Taft-Hartley Act. These amendments concerned chiefly the jurisdiction of the NLRB, the regulation of secondary boycotts and ''hot cargo" agreements, the rights of unions to picket for recognition, and the status of "economic" strikers. We should examine each of these changes very briefly.

Regarding NLRB jurisdiction, the Landrum-Griffin Act effected at least two important changes. It eliminated a "no-man's land" or gap between the federal law and any state labor-management relations laws. (We shall consider more fully the relations between state and federal law in a later section of this chapter.) The United States Supreme Court had held that in areas where the NLRB had the legal power to act., but either could not act for lack of time and personnel or did not feel it necessary to act, the state labor agencies and commissions could not move in to close

- 27 - the gap. Thus there developed a "no-man's land" between the two. The Landrum-Griffin Act went a long way to remedy this gap. Another juris­ dictional change gave the NLRB's regional directors the authority to determine what were appropriate bargaining units for collective bargain­ ing, to hold representational elections and to take various other steps in facilitating labor organization at the local level. These changes helped considerably to speed up the disposition of cases involving union elections and representation proceedings.

The 1959 amendments sharply curtail the power of 1D1ions to pressure employers through secondary boycotts and hot-cargo clauses. Each of these terms requires definition. A secondary boycott is an attempt by a tmion to get employer A (the "secondary employer," with whom the tmion has no labor dispute) to bring pressure against employer B (the "secondary employer") because of some grievance the 1D1ion has against employer B. This may involve, for example, picketing employer A's place of business, persuading customers not to do business or employees not to work there because employer A buys goods from employer B. Some kinds of secondary boycotts were outlawed by Taft-Hartler., but important loopholes remained. The 1959 amendments closed those loopholes so as to prohibit the secondary boycott in virtually all situations.

A hot cargo clause is typically an agreement between an employer and a tmion that employees covered by the agreement will not be required to use, process, or deliver goods which have been produced in a way that the tmion feels is "unfair" to organized labor, for example, goods made by strike-breakers or by a nonunion factory which a union is trying to or­ ganize. The Landrum-Griffin Act has outlawed the hot cargo clause except for the two limited and narrowly defined situations involving the construc­ tion and clothing industries. While these new prohibitions restrict the ability of tmions to carry a labor dispute beyond the walls of the plant or shop where it originates, they also expand the freedom of an employer who is engaged in a labor dispute to deal with others. Although these sanctions of Landrum-Griffin do not make it impossible for unions to arouse public sympathy and bring economic pressure from other quarters to bear on a struck employer, for example, they do force the union to rely more heavily upon publicity rather than on the more effective and traditional types of pressure. With respect to "economic" strikers the new law cuts both ways. On the one hand it eliminates the so-called "union-busting" provision of Taft-Hartley under which employees who were on strike and were not entitled to return to work could not vote in a union election during that period. This provision made it possible for employers during the strike to hire new workers, who would then hold an election and vote to decertify the striking union. This posed a serious threat to unions, and has been elimi­ nated by the Landrum-Griffin section which gives the NLRB power to permit economic strikers to vote in the union election within a year from the ber ginning of the strike, even though they have been replaced by other workers.

- 28 - On the other hand the Landrum-Griffin Act further restricts the rights of unions in the conduct of organizational and recognitional picket­ ing. The new section is very complicated, and its intricacies are not particularly important for us. But the new law forbids most picketing with the object of getting an employer to recognize or bargain with the one union while the employer has a valid contract with another union, or where an election has recently been held in the plant. There are certain provisos and exceptions, but this general survey of the amended statute will show how Congress has narrowed the scope of labor union activity in this as in other fields through the Landrum-Griffin amendments.

F. The Right to Strike Under Taft-Hartley and Landrum-Griffin

This seems a good place to review the legal limits that federal law imposes on the union's right to strike. The history of the right to strike has experienced several cycles. At one time most strikes were un­ lawful, and unions were thus denied their only effective economic weapon. Gradually, particularly auring the 1930's, the law came to protect the right to strike. In recent years, part of the broad protection given during the New Deal has been curtailed. Thus one can no longer say that the right to strike is absolute, although clearly the law can no longer be used to cripple a union's organizational efforts. We might begin by recalling the discussion of the legal procedure for dealing with national emergency disputes that threaten crippling strikes. The provision in Taft-Hartley for the 80-day cooling-off period is only a way of postponing the strike rather than of averting it (unless the dispute is settled during the 80 days or the workers vote to accept the employer's last offer). You will recall that when the 80 days expires, the union is free to strike, although Congress may then pass a special law preventing the strike. In addition to the national emergency procedure, there are other federal restrictions upon the right to strike. We shall list and briefly discuss the others here.

1. Strikes Contrary to Public Policy

Federal law forbids strikes designed to compel an employer to violate some provision of the federal labor laws--for example, to force him to recognize U1icn B when he already has a valid bargaining agreement with union A which has been certified as the representative of his em­ ployees, or to compel him to establish an illegal closed shop. Such a strike to achieve an unlawful end is itself unlawful. 2. Strikes During the Term of a Collective-Bargaining Agreement

A strike in violation of the terms of a valid collective-bargain­ ing agreement, during the term of that agreement, or a strike seeking to change the terms of the agreement before it expires, has been held to be an unlawful strike. It is not always, however, an unfair labor practice for a union to strike during the agreement term over legitimate grievances or in protest against the employer's alleged unfair labor practices.

- 29 - 3. Strikes by Goveniment Employees

The Taft-Hartley Act makes it unlawful for any individual em­ ployed by the United States or by any federal goveniment agency or wholly owned corporation, to strike. In addition, most state, municipal, and county governments forbid strikes against the goveniment itself on the theory that such strikes are dangerous to the public interest.

4. Jurisdictional Strikes

A jurisdictional dispute involves conflicting claims by two or more unions over a particular job or 'piece of work. For example, the car­ penters and the electricians may be at war over the question of who is to install baseboard wall sockets in new houses. The Taft-Hartley Act makes it an unfair labor practice for a union to strike to press such a juris­ dictional claim. When such a strike occurs or threatens, and an unfair labor practice charge is brought to the NLRB, the Board may then determine the merits of .the dispute and assign the disputed work to one of the con­ testing parties. In this way, the Board engages in a kind of compulsory arbitration when a jurisdictional dispute is brought before it.

G. Mediation and Conciliation Service

There is one other important aspect of federal labor law that will be particularly pertinent to our discussion of compulsory arbitration (see Chapter III). While the Taft-Hartley Act contains no provisions for compelling the arbitration or settlement of disputes, it does create a Federal Mediation and Conciliation Service. 'This is the largest and most active agency engaged in helping to settle labor disputes. The law charges the Service with the job of minimizing work stoppages by mediation and en­ couragement of voluntary arbitration; it urges labor and management to cooperate fully with the Service in order to settle strikes; and it es­ tablishes a labor-management advisory panel for the Service.

The Service gets some waniing when dark clouds are building on the labor-management horizon because Section 8(d) of Taft-Hartley requires labor and management to notify each other of any intent to modify a col­ lective-bargaining agreement at least 60 days before the agreement runs out, and to notify the federal Service and the appropriate state agency 30 days later if no agreement has been reached. Then either party to a dispute may request the participation of a representative of the Service, or the Service may come in on its own motion. During the year 1961-62, there were about three thousand outside requests for assistance in ar­ bitration or mediation from the Service. The first task of a Mediation and Conciliation Service representative is simply to sit in with the parties and try to help them work out their own differences so that they can draft a new contract before the deadline is reached (there may be a strike if the deadline passes without a firm contract). Ideally, it is a way of helping the parties to formulate and reach an agreement which they have almost reached on their own; it cannot usually bring together two parties who are very far apart.

- 30 - The Taft-Hartley Act has declared a national policy of encourag­ ing labor and management to arbitrate voluntarily their disputes arising out of collective-bargaining agreements. The Mediation and Conciliation Service maintains a panel of arbitrators for just this purpose, and if no member of this panel is available, it will help the parties to select an arbitrator from some other source. In addition to this federal panel, many states and cities maintain mediation and conciliation services. But none of these services can force their assistance on unwilling labor or manage­ ment, nor can they settle a dispute if the parties do not really want it on their own. Thus, while Mediation and Conciliation Service undoubtedly does a great deal of good, it must be remembered that the Service is very far from being able to compel anyone to do anything. III. The Railway Labor Act Labor relations in the railroad and a:irlines industries are regulated by a special statute, the Railway Labor Act of 1926. Although important amendments have been added to this statute, it retains its orig­ inal basic structure. (At first, of course, it covered only railroads; its coverage was extended to include airlines in 1936.) The operation of the Railway Labor Act revolves about two agencies, the National Mediation Board and the National Railroad Adjustment Board. We shall explain briefly the functions of each. The statute compels employers and unions in the railroad and air line industries to undertake peaceful collective bargaining of all disputed issues. The Act sets fo·rth detailed procedures for such bargaining which leave less to the initiative of the parties than does the Taft-Hartley Act. If the parties are unable to settle a major dispute, they may then seek mediation by the National Mediation Board, a permanent three-member agency. Or the Board may intervene in the dispute on its own initiative. If such intervention fails to resolve the dispute, the Board must request the parties to arbitrate. If both the parties agree to arbitrate, then an arbitration board is selected, composed of three or six members. Either of the parties may, however, refuse arbitration. It is then up to the Mediation Board to decide whether the dispute threatens to deprive an area of the country of its essential transportation. If they so determine, they notify the President, who may then appoint a special emer­ gency board to hear the dispute and make proposals for its settlement. The special board has 30 days in which to make its findings. During that period and the following 30 days, the parties .may take no action to change the status quo. After that, if the dispute still has not been settled, they are free to act as they wish. Since the adoption of this procedure in 1934, over 125 railway cases have been submitted to emergency boards, and more than 60 a:irline cases. The frequency with which this procedure has been invoked suggests that it may have been used too freely; experts disagree on this issue and on the question of the effectiveness of the emergency procedure.

- 31 - The other important agency under the Railway Labor Act is the National Railroad Adjustment Board. This Board consists of 36 members, half of whom are chosen by the railroads and air lines and the other half by the unions. The Board is divided into four separate panels which sit individually on different types of cases. The issues that come before the Board concern the interpretation of collective-bargaining agreements and grievances arising in connection with such questions. Although either side may submit cases to the Board, about four-fifths of the cases have in fact been filed by the unions. After a Division of the Board has heard evidence and argument by the parties on a grievance or interpretation question, it issues an award. This award may be reviewed by the courts at the request of the losing party.

The Railway Labor Act, like Taft-Hartley, contains detailed pro­ v1s1ons about union organization and the selection of a union to represent the workers in a bargaining unit. These provisions are enforced by the National Mediation Board, whose procedures are different in several respects from those followed by the National Labor Relations Board for all other industries. The Railway Labor Act also contains provisions concerning un­ fair labor practices, on the part both of labor and management. The principal difference between these provisions and those of Taft-Hartley is that these prohibitions are enforced not by administrative proceedings before any federal agency but rather by criminal actions (in case of "willful" violations of the Law), or by civil actions brought by interested parties. In this respect, then, the operation of the Railway Labor Act is obviously quite different from Taft-Hartley.

The key features of collective bargaining in the railroad and air 1:ine industries are these: (1) a comprehensive code of provisions for the conduct of collective bargaining and for the postponement of strikes or lockouts until a variety of government intervention procedures have been exhausted; (2) compulsory arbitration of grievance disputes before a national, publicly supported bipartisan board; ·and (3) methods of selecting bargaining representatives and prohibitions against unfair labor practices that are substantively similar to those of Taft-Ha�tley but are enforced quite dif­ ferently. It is more important for us to know that these differences exist than to know precisely what they are.

IV. The Civil Rights Act of 1964

It has long been apparent that racial discrimination in hiring, promotion, and union membership has created a serious problem for American labor relations. A number of states had passed fair employment practices laws which prohibited such discrimination, and usually set up an adminis­ trative agency to enforce the prohibitions. There were frequent efforts to enact a federal fair employ ment practices law during the 1940's and 'SO's. But it was not until the summer of 1964 that such a law was finally passed. The prohibitions on employment and union discrimination were con­ tained in Title VII of the Civil Rights Act which was signed into law by President Johnson on July 2, 1964. These provisions will significantly

- 32 - affect both employers and labor unions when they go into effect in July,1965 (the time of taking effect was delayed for one year by Congress in order to give labor and management a chance to understand and adjust to the demands of the new law). We must consider separately how the Civil Rights Act af­ fects the employer and the labor union.

A. The Civil Rights Act and the Employer The new law applies to all employers in industries whose business affects interstate commerce and who employ more than 25 persons. (For the first year it will apply only to those with 100 or more; the second year the cut-off figure will move down to 75, the next year to SO, and finally in the fourth year down to the final level of 25.) Several kinds of em­ ployers are excluded altogether from the Act--the Federal Government and its agencies (which are covered by similar prohibitions from another source), state governments, Indian tribes, and certain religious and educational in­ stitutions (with respect to employees directly involved in the religious or educational work of such institutions).

An employer who is covered by the Act may not discriminate on the basis of race, color, religion, sex, or national origin in hiring and firing employees, or in setting their wages or the other terms and conditions of their employment. Nor may the employer segregate or classify his employees on any of these grounds. No training or apprenticeship program, operated by an employer alone or together with a union, may discriminate in the selection or training of workers. On the other hand, there is at least one loophole--without which it might be impossible even for a church or synagogue to hire for its choir only persons of a particular religion. This section of the law permits discrimination on grounds of religion, sex, or national origin--but not on grounds of race or color--where such a qualification is a legitimate and necessary condition for the job in question. Thus, while the law would permit a Chinese restaurant or laundry to restrict its employment to persons of Chinese ancestry, it would not ,allow discrimination in favor of persons of the Oriental or yellow race.

What happens when an employee believes that he has been dis­ criminated against by an employer? The procedure is rather complex, and we can only outline the essentials here. The aggrieved employee may bring his case before the Equal Employment Opportunity Commission, a new federal anti-discrimination agency set up under the Act. If the state where the alleged discrimination occurred has a state or local fair employment practices law, the f�deral Commission must first give the state or local agency a chance to handle the matter. If after the prescribed period of time (60 to 120 days) the state or local body has not resolved the case, the worker can then go back to the federal Commission, which will then try to settle the grievance through informal negotiation and compromise. The Commission has no power to force anyone to do anything; its powers are limited to voluntary compliance and informal settlement. If these approaches fail, then the worker may take his case to a federal court, provided that at least one member of the Conunission

- 33 - certifies in writing that the worker's claim has merit. The court may appoint a lawyer to represent the worker if he cannot afford to hire his own. The United ·states Attorney General may join in the suit if he feels there is evidence of a "pattern or practice" of employment discrimination in the area. If after hearing the evidence and argument the court finds there has been a prohibited discrimination, it may issue an injunction against further violations, or may order the employer to hire or rein­ state the complaining worker with or without back pay. Thus the law op­ erates in three stages: First, resort to state or local remedies; second, conciliation and negotiation through the Equal Employment Opportunity Com­ mission; and finally a federal court suit if the matter remains unresolved after the first two stages.

B. The Civil Rights Act and the Labor Union

Over twenty years ago the U.S. Supreme Court held that a labor union certified under �he Railway Labor Act could not discriminate against members or applicants for membership on racial grounds. But that was a narrow decision and difficult to enforce without specific legislation. Thus, along with the fair employment practices section of the 1964 Civil Rights Act came a broader ban on labor union discrimination. Unions are covered under the Act in roughly the same way as are employers--that is, when they are in industries affecting interstate commerce, and have more than 25 members (100 for the first year, then 75, and so on down through the same "sliding scale" that brings the Act fully into effect against em­ ployers after four years). Unions, like employers, are specifically for­ bidden to exclude or expel individuals on grounds of race, color, religion, sex, or national origin, or to segregate or classify members, or refuse to refer any individual for employment on any such grounds. Nor may any union attempt to cause an employer to discriminate against any employee or ap­ plicant on any of these grounds (this, you will recall, is essentially a carryover from the Taft-Hartley Act non-discrimination provision). In order to make these provisions effective, the Civil Rights Act also forbids any employer to discriminate against employees or applicants for opposing any practices made unlawful by the Act. Thus persons who have attempted to secure their own rights, or to help others to secure their rights, under the fair-employment sections of the Act are fully protected under the law.

Finally, the Act forbids discrimination by employment agencies as well as employers and unions. An employment agency is any person who regu­ larly attempts to find work for persons in covered establishments, or which attempts to find workers to fill the jobs in covered places of employment. Agencies are subject to the fair employment, non-discrimination ban regard­ less of their size so long as they serve employers whose operations affect interstate commerce.

C. What Happens to State and Local Fair Employment Laws? As the fair employment section of the Civil Rights Act goes into effect, some 28 states have laws prohibiting discrimination in employment

- 34 - on grounds of race, color, creed, or national origin. Many of these are enforced by state anti-discrimination commissions (most of which have en­ forcement powers much greater than those of the Federal Equal Employment Opportunity Commission). Some people have been concerned that the new federal law would take most of the work away from these agencies which have been doing an effective job of combatting prejudice in hiring and promotion at the local level. The Civil Rights Act, however, removes any basis for this fear. First, the federal law does not touch employers whose opera­ tions don't affect interstate commerce, or who employ fewer than 25 workers --and the majority of the employers in this country are in that category. Second, even where a charge is filed against an employer covered by the federal law, the Equal Employment Opportunity Commission cannot begin its conciliatory work until after the state or local agency has been given 60 days to resolve the issue. Thus the federal machinery goes into operation only if the state or local machinery does not complete the job.

V. How the National Labor Relations Board Operates

Since most federal labor-relations laws are enforced through and by the National Labor Relations Board,we should understand how that agency functions. It is one of the busiest agencies in the country, handling hundreds of thousands of cases each year, although very few of these cases ever come before the full Board for final decision. Most of the Board's business falls into two classes: determining bargaining units and super­ vising representational elections, certifications, and other related matters; and the handling of unfair labor practice charges filed against both employers and unions. In order to understand how the Board functions, let us take a sample unfair labor practice case. Suppose an employee has been fired and the only reason given is that he was "stirring up too much union trouble." This would clearly amount to an unfair labor practice under the Taft-Hartley Act. Probably in such a case a representative of the union, perhaps its lawyer, will go to the Regional Office of the NLRB to report the incident. Before any formal charges are lodged, the Board's local staff is likely to summon a representative of the employer to talk the matter over in hopes of working out an informal settlement. In this way, more than three quarters of the unfair labor practice cases against employers are informally settled on the local level. If the matter cannot be resolved in this way, the discharged employee or the union may file a formal charge. The charge will have to be supported by specific evidence. On the basis of the evidence the Board's regional office may send a Field Examiner to the plant to in­ vestigate the charge by interviewing representatives of both sides. On the basis of the Examiner's report, the Regional Director may attempt either to persuade the employer to reinstate the worker, or if the evidence does not s'upport the charge, he may try to urge the union to drop the charge. If the issue still cannot be settled, the General Counsel of the NLRB, or more likely the Regional Director (to whom he has delegated much of this power) will file a formal complaint against the employer. Such a complaint, drafted by NLRB lawyers, will state the violations which the company is

- 35 - claimed to have committed, and will set a time and place for a hearing to be held as soon as possible. The employer then answers the complaint, ad­ mitting or denying the principal allegations so as to narrow the issue. Then the hearing will take place before a Trial Examiner who is sent spe­ cially from \\ashington for this purpose. At this point the Board's legal staff takes over the job of prosecuting the case, though the union's or the discharged worker's lawyer may also participate. After the presenta­ tion of evidence and argument on both sides, the Trial Examiner prepares a report containing his proposed findings and his recommendation for the decision of the case. This report is made available to the parties, who may argue for its rejection or modification. If no objections are raised, the Board may adopt the Examiner's report. Otherwise the Board will review the report in the manner of an appeal from the court decision.

Eventually, the Board renders a final decision. But even that is not the end of the line. If, for example, the Board decides that an un­ fair labor practice has occurred and that the worker should be reinstated, the Board has no power to enforce its own decision. If the employer refuses to comply, the Board must then go to a federal court of appeals to get an enforcement order. The court of appeals reviews the work of the Board, and decides whether the evidence supports the Board's conclusions, whether it has correctly applied the law and other matters. If the court of appeals finds everything in order, it will then order enforcement, and if the em­ ployer fails to heed this judgment he may be held in contempt of court. He can also seek to have the court of appeals' decision reviewed by the United States Supreme Court.

Several points about the Board's procedure will be particularly important in our further study of labor law: First, the vast majority of cases that are brought to the Regional Offices of the Board are settled at the local level. Indeed, in a typical year about 90 percent of all unfair labor practice cases are thus settled informally through conciliation, negotiation, and investigation before a formal complaint is ever filed. Second, the decision whether to issue a formal complaint is made in almost all cases by the Regional Director, and the hearing is held locally. Third, although the hearing before the Trial Examiner is informal, the laws and the Board's own rules of procedure fully respect the rights of the parties and give the fairest possible hearing. Fourth, as soon as a formal com­ plaint is issued, the case ceases to be a private dispute (as would be a civil suit in a court of law), and becomes the case of Labor Board vs. Employer, or Labor Board vs. Union. Lawyers representing the private parties may continue to participate, but the principal responsibility for . prosecuting is the Board's. This is one reason why the decision whether to issue a complaint is so important and why the Board tries so hard to settle complaints informally. Fifth, and finally, although the Board can seek the aid of the courts at various stages (for example, to prevent further unfair labor practices after the canplaint has been issued), it is powerless, unlike many other federal agencies, to enforce its own orders directly. Thus before either employer or union can be compelled to obey the Board, there is a chance for court review.

- 36 - VI. The Antitrust Law and Organized Labor

One of the most difficult questions in the field of labor law is how far the federal antitrust laws apply to labor unions. The principal antitrust laws are the Sherman Act of 1890 and the Clayton Act of 1914. Since the passage of the Clayton Act there have been many court cases at­ tempting to determine the proper relationship between labor law and anti­ trust law. In fact, there are, in the summer of 1965, two extremely im­ portant cases involving that question pending before the United States Supreme Court. The question of organized labor and the antitrust laws is central to any discussion of Federal Government action concerning industry­ wide collective bargaining. This is one of the three debate propositions for the current year, and is the subject of Chapter IV of this book. Thus we will save our discussion of that subject until the later chapter. VII. State Regulation of Labor Management Relations

So far we have talked only about federal law. State regulation of labor relations may be important, as we have already observed in our discussion of the Civil Rights Act of 1964, which relies heavily upon state fair employment practice laws where they exist. Today some 14 states and the Commonwealth of Puerto Rico have comprehensive labor-management re­ lations laws. In this section we shall examine the structure and some of the provisions of typical state laws, how they are enforced and administered, and how they fit into the comprehensive scheme of federal law that we have already surveyed.

A. Types of State Labor Relations Acts

The first state labor-management relations laws were passed in the late 1930's and were patterned rather closely after the Wagner Act. They have been aptly called "Little Wagner Acts." During the next few years several more states enacted laws which either anticipated before, 1947,the Taft-Hartley Act o� after 194i incorporated some of that Act's provisions. Finally, a number of states have "Little Landrum-Griffin Acts" which deal with union reporting and disclosure, responsibility of union officers, internal union democracy, and the like. We shall consider each of these types of state laws. 1. "Little Wagner Acts"

The so-called Little Wagner Acts which are still found in several states deal principally with unfair labor practices on the part of employers. They prohibit many of the employer practices forbidden by federal law such as interference with union organizing activity, domination of the union, discrimination against workers for union activity, refusal to bargain in good faith, black-listing employees for union activity, breach of the collective-bargaining agreement, and the use of various unfair tactics such as espionage designed to undermine or thwart legitimate union activities.

- 37 - 2. "Little Taft-Hartley Acts" Most of the states which originally adopted Little Wagner Acts eventually outlawed unfair labor practices on the part of unions as well as employers. Such practices include secondary boycotts, picketing in a strike of a minority of employees, coercing employers or employees for un­ lawful purposes, breach of the contract, sit-down strikes, mass or violent picketing, intimidating the employer or members of his family, forcing union membership on unwilling workers,engaging in jurisdictional strikes, and other activities of this kind. Thus some of the Little Taft-Hartley Acts go beyond the federal law in defining and prohibiting union unfair labor practices. 3. "Little Landrum-Griffin Acts" Most recently 13 states have passed laws which parallel the es­ sentials of Landrum-Griffin. Most of these laws require periodic report­ ing by unions, although only six of these states have extensive or strin­ gent requirements with respect to union welfare and pension funds. These laws seek also to further union democracy which is an important objective of the Landrum-Griffin law. These state laws prescribe the frequency and conditions of union elections, guarantee to workers certain rights within the union, and in other ways seek to ensure the responsibility of union officers. They are particularly important because of a provision in the Landrum-Griffin Act which declares that, except where such an intent expressly appears, nothing in that federal law "shall take away any right or bar any remedy to which members of a labor organization are entitled" under state law. So state law is given considerable latitude to continue to operate despite the tendency of Landrum-Griffin to overshadow earlier state laws. 4. State Right-to-Work Laws The labor laws of 19 states provide that the payment of .dues to, or membership in, a labor uion, may not be made a condition of employment. This provision is called a right-to-work law. Such laws are permitted by Section 14(b) of the Taft-Hartley Act which provides that union security arrangements may not be imposed by a collective-bargaining agreement in any states which have contrary legislation. These laws are so important for the present debate proposition that we shall devote an entire chapter to considering them and problems which they raise. Thus we defer any further discussion of state right to work laws until Chapter V. B. Enforcement and Administration of State Labor Relations Laws Of the 13 states which have comprehensive labor-management re­ lations laws, three leave most of the enforcement to the courts, using a state mediation agency to handle certain matters of organizing and super­ vising union elections. The other ten states, however, have administrative agencies which are rather like the National Labor Relations Board on a

- 38 - smaller scale. Several of these agencies handle tasks other than labor­ management relations, including mediation of labor disputes, enforcement of minimum wage legislation, and even the awarding of compensation to in­ jured workers. In most states the case loads of these agencies are rather small--in fact probably too small to justify a specialized agency handling nothing but the kinds of cases that come before the NLRB. The procedures of the state agencies differ widely, some following the NLRB model closely, others setting up briefer and simpler procedures. C. Relations Between State and Federal Law Having said this much about state regulation of labor-management relations, we must now report that the power left to the states in this field is steadily shrinking. Although Congress has never said that states may not regulate where the NLRB might act, that is effectively what the Supreme Court has held. For most purposes the state labor laws can now operate only in those nooks and crannies of labor-management relations which the federal law dows not reach. All this demands some explanation. The Commerce Clause of the United States Constitution gives the Congress power to regulate interstate commerce. This power has been broadly construed to include the power to regulate virtually all aspects of labor relations in businesses that affect interstate cornmerce--that is, which make goods that are shipped to other states, or which receive their raw materials from interstate commerce, in addition to railroads and trucking companies which are, of course, directly involved in interstate commerce. At first it appeared that Congress, through the �LRB, would regulate the large national businesses, leaving the states free to regulate local business, or that both the state and federal authorities could regulate simultaneously. During the 1950's, however, the U.S. Supreme Court decided a series of cases that diminished the possibility of any such division of authority. The line of cases culminated in 1959 with a decision that wherever labor practices (on the part either of an employer or of a union) are "arguably subject" to the jurisdiction of the NLRB, the states may not regulate. Thus where the National Labor Board had simply declined to assert its,jurisdiction because it felt the matter was too small to warrant its attention, or be­ cause it lacked the personnel to do an effective job, the result was a "no­ man's land" in which neither body of law applied. The reasons for this sweeping decision in favor of federal law were many and complex; in no other area of commerce has the Supreme Court gone as far in displacing state law as in labor-management relations. In the Court's judgment the need for a uniform federal standard of labor law, and the dangers that the states might deal unfairly either with labor or with management required that most of the field be reserved for the NLRB. As Mr. Justice Frankfurter concluded for the Court: "The governing con­ sideration is that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of

- 39 - conflict with national labor policy." y

Does this mean that the states cannot act at all, or only that they may not prohibit conduct which the federal law protects? The Garmon decision (cited above) means much more than this. For the Court held that the States must keep hands off not only where the activities are "arguably protected" by federal law, but even where they are "arguably prohibited." Thus one must look not only to what the federal law expressly permits in order to determine what the States may not regulate, but also at what the unfair labor practice sections of the Taft-Hartley Act and the new pro­ hibitions of Landrum-Griffin expressly forbid. Thus the federal displace­ ment of state law is very sweeping indeed.

This doctrine of federal preemption does contain certain excep­ tions. For example, the Supreme Court has recognized that the states have a special interest in preventing "violence and imminent threats to the public order." When picketing or other labor conduct threatens such con­ sequences, the state courts may enjoin it or may give damages to one who is injured when the consequences occur--even though, of course, such con­ duct is quite likely to be "arguably prohibited" by federal law as well. Even this exception is a narrow one, and the Court has recently held that the state courts may not grant damage awards against conduct of a union or employer that falls short of the bounds of this exception. 2/

One recent development significantly affects the relations be­ tween federal and state labor law. The problem posed by the "no-man's land" holding has been largely solved by a section of the Landrum-Griffin Act amending Taft-Hartley. The new Section 14(c) provides that the NLRB may decline to take jurisdiction of a particular labor dispute or class of disputes if in its judgment "the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction." The section goes on, however, to state that nothing in the federal law shall prevent a state court or agency from taking jurisdiction where the NLRB has expressly declined to do so. This does not mean that the states can simply move in because the Federal Labor Board does not act fast enough; there must be a formal statement of the NLRB's refusal to take jurisdiction before the states can enter the field.

VIII. Conclusion By now it should be clear that the law of labor relations is a pretty complex business. Every labor union and every employer who makes

y San Diego Building Trades Council v. Garmon, 359. U.S. 236, 246 (1959). y See Local 100, United Ass'n of Journeymen & Apprentices v. Borden, 373 U.S. 690 (1963); Iron Workers Union Local 207 v. Perko, 373 U.S. 701 (1963).

- 40 - decisions that may affect labor relations should have his lawyer check quite a few law books before he acts. The law governing this field is constantly changing, so the employer, labor leader, or lawyer will have to keep pace with what the courts and the NLRB are deciding, and what is going on in Congress and the state legislatures. �nat does all this have to do with the debate resolutions? As we conclude the chapter, here are a few suggestions: First, and most im­ portant, we cannot decide whether the Federal Government ought to do some­ thing new or adopt a different policy in labor-management relations until we know what the present law is. As you know, this is harder to do than it might have seemed before you read this chapter or were introduced some­ where else to the complexity of labor law. Second, an understanding of the scheme of labor law is essential before an affirmative debate team can draft an intelligent and workable plan to bring about the change it advocates. For example, in deciding whether or not to adopt a system of compulsory arbitration, it is essential to know what the NLRB does and how it functions. It is also helpful to know what kinds of labor agencies the states have, for in the limited fields in which they operate, some powers might still be delegated to them. Third, an understanding of the nature and complexity of labor law should make the debater more careful in his research, in defining his terms, and in the framing of his pro­ posal. We should repeat, however, that this chapter is a modest and incomplete summary of the present labor laws. For the reader who wants further information on any of these laws, there is a bibliography which lists more detailed complete sources.

- 41 - QUESTIONS FOR DISCUSSION AND REVIEW

1. To what extent did the passage of the Taft-Hartley Act in 1947 reflect a "swing of the pendulum"? ·Which groups gained most by the new law, and which groups suffered most? Did Taft-Hartley strike a bal­ ance in labor-management relations that has proved realistic in the nearly twenty years since its adoption? 2. What is an unfair labor practice? When an employer or a labor union is charged with having committed an unfair labor practice, what procedures are to be followed? What must happen before an unfair labor practice decision of the NLRB can be enforced?

3. What is the sole ground on which. a labor uion can seek to compel the employer to discharge an employee? Why has the scope of union pressure against individual workers been restricted in this manner? Does this leave the union enough power?

4. Describe the operation of the Taft-Hartley emergency dispute procedure. Is this procedure effective to cope with major threats to the national economy growing out of labor disputes? What changes or improve­ ments might you suggest in the present procedure?

5. What is an "appropriate bargaining unit"? Why is it im­ portant to determine the scope of the bargaining unit with some care, and what considerations should enter that determination? 6. Was the Landrum-Griffin Act a victory for either labor or management? How much of this statute was really new, and how much de­ signed basically to plug holes and gaps in the prior law?

7. How does Landrum-Griffin seek to achieve its two principal objectives of greater union democracy and greater responsibility of union officials? Are its provisions compatible with union self-government and the right of unions to handle their own internal affairs?

8. Why was there a need for Landrum-Griffin to deal with union trusteeships and the use ·of union funds? Does the statute go far enough in these two areas?

9. Of what significance were the several Landrum-Griffin amend­ ments to the Taft-Hartley Act?

10. What legal limits have been placed upon the right of workers to strike? What is meant by the judgment·that a strike is "contrary to public policy"? Ought our notions of "public policy" to prevail over the collective action of labor unions? 11. Why does the Federal Mediation and Conciliation Service have

- 42 - so little power, and why does the law contemplate that the Service will work so slowly? Ought the Service to be given such "teeth" as the power to compel arbitration of major disputes?

12. In what sense can we say that the Railway Labor Act provides for compulsory arbitration? Is this a form of settlement that is more appropriate to air or rail transportation than to other industries? Is there any other possible explanation for the presence of such provisions in this statute?

13. How does a worker who claims he has been discriminated against by an employer because of his race go about seeking relief? What remedies are available to him? What portion of all industry is covered by the Civil Rights Act of 1964?

14. How does the Civil Rights Act of 1964 affect labor unions as distinguished from its effect upon employers?

15. What changes or improvements could you suggest in the opera­ tions and procedures of the National Labor Relations Board? How do you account for the fact that so very high a percentage of all unfair labor practice cases are informally settled at the local level?

16. What different types of state labor-management relations laws are found in the United States today? What are the major differences between these laws and the present federal law regulating labor relations?

17. Under the Supreme Court's recent "preemption" decisions, how much latitude is left for the operation of state labor-management rela­ tions laws? Why has the Supreme Court so narrowly confined the scope of state laws? Do you feel the Court has gone too far in this respect?

- 43 - BIBLIOGRAPHY

Aaron, Benjamin. "The Labor-Management Reporting and Disclosure Act of 1959," 73 Harvard Law Review 851, 1086 (1960).

"The Union Member's Bill of Rights: First Two Years," Industrial Relations (February, 1962), pp. 47-71. Barnes, Stanley N., Goldberg, Arthur J., and Miller, Lambert H. "Unions and the Anti-Trust Laws," Labor Law Journal (March, 1956), pp. 133-3(>, 178-86, 186-92.

*Beal, Edwin F., and Wickersham, Edward D. The Practice of Collective Bargaining. Homewood, Ill.: Richard D. Irwin, Inc., 1963, ch. 7. Cohen, Sanford, "An Analytical Framework for Labor Relations Law," Industrial and Labor Relations Review (April, 1961), pp. 350-62. Cole, David L. "Government in the Bargaining Process: The Role of Mediation," The Annals of the American Academy of Political and Social Science (January,1961), pp. 42-58. Commerce Clearing House. Fair Employment Practices under the Civil Rights Act of 1964. Chicago, Ill.: Commerce Clearing House, 1964.

Cox, Archibald. Labor Law: Cases and Materials. Brooklyn, N.Y.: Foundation Press, 1958.

Law and the National Labor Policy. Los Angeles, Calif.: University of California, Los Angeles, Institute of Industrial Relations, 1960. "Internal Affairs of Labor Unions Under the Labor Reform Act of 1959," 58 Michigan Law Review 819 (1960).

Cullen, Donald E. "The Taft-Hartley Act in National Emergency Disputes," Industrial and Labor Relations Review (October, 1953), pp. 15-30. Dempsey, J.R. The Operation of the Right-to-Work Laws Milwaukee: Marquette University Press, 1961,

Evans, Hywell. Governmental Regulation of Industrial Relations: A Comparative Study of the United States and British Experience. Ithaca, N.Y.: New York State School of Industrial and Labor Relations, 1961. Farmer, Guy. "The Status and Appli<;ation of the Secondary Boycott and Hot Cargo Provisions," 48 Georgetown Law Review 327 (1959).

- 44 - Gregory, Charles 0. Labor and the Law. New York: W. W. Norton & Co., 2d rev. ed., 1961. Michelman, Frank I. "State Power to Govern Concerted Employee Activities," 74 Harvard Law Review 641 (1961). Millis, Harry A. and Brown, Emily Clark. From the -Wagner Act to Taft­ Hartley: A Study of National Labor Policy and Labor Relations. Chicago: University of Chicago Press, 1950. "National Labor Relations Board: A Symposium," 29 George Washington Law Review 1 (1960). *Northrup, Herbert R. and Bloom, Gordon F. Government and Labor: The Role of Government in Union-Management Relations. Homewood, Ill.: Richard D. Irwin, Inc., 1963. *Parker, Reginald. A Guide to Labor Law. New York: Frederick A. Praeger, 1961. Previant, David. "Have Titles. I-VI of Landrum-Griffin Served the Stated Legislative Purpose?", 14 Labor Law Journal 28 (1963). Shister, Joseph, Aaron, Benjamin, and SUDllllers, Clyde W., ed. Public Policy and Collective Bargaining. New York: Harper & Row, 1962. Smith, Russell A. "The Labor-Management Reporting and Disclosure Act of 1959," 46 Virginia Law Review 195 (1960). "The Taft-Hartley Act After Ten Years: A Symposium," Industrial and Labor Relations Review (April, 1958), pp. 327-412. Taylor, George W. "The Adequacy of Taft-Hartley in Public Emergency Dis­ putes," Annals of the American Academy of Political and Social Science, (January, 1961), pp. 76-84. Government Regulation of Industrial Relations. New York: Prentice Hall, Inc., 1948� *United States Department of Labor. Federal Labor Laws and Programs (Bulletin No. 262). Washington, D.C.: U.S. Government Printing Office, 1964. Weber, Arnold R., ed. Structure of Collective Bargaining: Problems and Perspectives. New York: Free Press of Glencoe, Inc., 1961.

*Indicates basic works of general coverage, dealing with all applicable federal labor laws. These would form good starting points for research in labor law beyond this chapter.

- 45 - CHAPTER III

cm,IPULSORY ARBITRATION

I. Introduction

The first national debate proposition for the 1965-66 season is "RESOLVED: THAT THE FEDERAL GOVER..\1-lE�T SHOULD ESTABLISH A PROGRAL\f OF COMPULSORY ARBITRATION IN BASIC I�DUSTRIES." This chapter provides a general introduction to the proposition and an overview of the major ar­ guments.

The definition of the central terms in the resolution is the first matter discussed here. Following the definition, there is an analysis of the central issues of the proposition that will almost cer­ tainly have to be considered by both affirmative and negative debaters. The case for and against compulsory arbitration will be found in separate sections.

II. The Debate Proposition

Before considering the issues involved in debating this proposi­ tion, we shall attempt an explanation of the resolution. The meaning of Federal Government as used in this resolution is obvious: (1) the program which the Affirmative will advocate will be enacted by Congress, and (2) the program will cover the basic industries which are within federal juris­ diction as explained in Chapter II.

A. Program of Compulsory Arbitration

Before defining compulsory arbitration, we shall review the emergency procedures of the Taft-Hartley Act and the Railway Labor Act. Under the former, strikes which in the opinion of the President imperil the national health or safety are made subject to injunction for a maximum period of eighty days. The President is authorized to appoint a special board of inquiry, which makes a preliminary investigation prior to the time the in­ junction is sought, and must submit a final report when the injunction has been in effect for sixty days. The board of inquiry appointed by the Presi­ dent is specifically prohibited from recommending terms for settlement in the dispute. If the parties, with the aid of the Federal Mediation Service, are unable to settle the dispute in this time, the NLRB is required to poll the employees as to whether they are willing to accept the employer's last offer. At the end of the eighty-day period the injunction is dissolved and the President may, if he wishes, refer the dispute to Congress and recommend a course of action concerning it. In fact, no President has gone to Congress after the eighty-day period and the parties have been free to continue their

- 46 - dispute. These provisions do not apply to government employees, who are prohibited by the Act from striking; nor do they apply to railroad and air line employees, for whom a special procedure is provided by the Rail­ way Labor Act.

With this procedure in mind, let's now turn to compulsory arbi­ tration. Let's assllllle that all the techniques for trying to get the parties to avoid a strike or lockout under the Taft-Hartley or Railway Labor Act have been tried and have failed. The question now arises, what can be done to prevent a paralyzing strike in a basic industry? If the parties cannot reach voluntary agreement without a strike and if the strike is felt to be intolerable, one alternative is for some third party to draft a contract and to compel union and management to accept it. The third party may be a labor court, a single mediator, a tripartite board, a panel of distinguished citizens, the President, or Congress. Whatever its size or its name, its function is compulsory arbitration. 1/ Another possible route might em­ power the Federal Government to seize the struck industry until both sides have reached agreement. This is similar to the arrangement under the Smith­ Connally Act during World War II. 2/ This method is usually referred to as the "statutory strike." \\'ork stoppages would be prohibited. Government would not return the struck industry to private ownership until agreement is reached. During the seizure period, pressure would be applied to the parties, for example, the government could assess management profits and union dues. The suggested penalties might vary, but the idea is to bring enough pressure to bear on the parties to compel them to reach their own agreement. Finally, the Affirmative may choose to combine its compulsory ar­ bitration plan with the present emergency procedures under the Taft-Hartley and Railway Labor Acts. �ben these procedures (delay and mediation) have been exhausted the plan would enter the picture at the close of the com­ pulsory waiting period. B. Basic Industries

These are usually essential industries and services upon which other industries or the general public depend. At a minimum they usually include transportation (railroads, air lines, and shipping), communications (telephone and telegraph), public utilities (water, gas, electric power and light), and the mining and basic production of essential raw materials (coal, aluminum, copper, and steel). Practically all work stoppages which arise within the public utilities sector fall within state rather than fed­ eral jurisdiction. The Taft-Hartley Act does not outlaw strikes in general.

1/ Alfred Kuhn, Labor Institutions and Economics (New York: Rinehart and Company, Inc., 1959), p. 152. Stephen S. Sosnick, "Non-Stoppage Strikes--A New Approach," Industrial Y and Labor Relations Review (October, 1964), p. 73.

- 47 - It does, however, provide a special procedure for cases in "which in the opinion of the President of the United States, a threatened or actual strike or lockout affecting an entire industry or a substantial portion thereof ...will, if permitted to occur or to continue, imperil the national health or safety." You will note that this "national emergency" clause does not mention basic industries, yet in the twenty-three cases in which the President has employed this provision, the industries involved fell within the categories of basic industries mentioned above.

C. Labor-Management Dispute5

Before we turn to the issues, we should clar:uy the types of dis­ putes with which the Affirmative program will deal. A labor-management dispute is an enforced work stoppage--either a strike by labor or a lock­ out by an employer. There are three principal categories of labor-manage­ ment disputes: (1) grievances, (2) contract disputes, and (3) disputes over organization. The first and the third kinds of disputes are already practically eliminated, either by legislation or by contract, as a basis for strikes and lockouts; adjudicated third party settlements have been substituted. 1/ Strikes over organization are now a rarity, such disputes being taken eI"ther to the National Labor Relations Board or to state labor relations boards. The overwhelming majority of grievances (disputes which arise over the meaning of the contract) are subject to compulsory settle­ ment as a result of clauses written into labor agreements by the parties. Grievances in the railroad industry are settled by the National Railroad Adjustment Board--created by the federal Railway Labor Act. Only the second category, contract disputes, are still subject to "direct action" by labor or management. This is the category with which the Affirmative program will deal.

III. The Case For Compulsory Arbitration In attempting to establish a case for compulsory arbitration, we will employ the standard Affirmative debaters approach to any policy reso­ lution: (1) do serious problems exist now, (2) are these problems inherent in the present system, (3) will compulsory arbitration solve these problems? In dealing with the case against compulsory arbitration, we will attempt to provide some answers which negative teams will give to these questions. A. Do Serious Problems Exist Now? Until now, the industrial strike or lockout, even those which some labor experts feel imperil the health and safety of the nation, has been re­ garded as an inevitable but undesirable cost of resolving industrial conflicts. Some critics regard enforced work stoppages in essential industries as an unfortunate aftermath of the failure of collective bargaining. Others see

1/ Orme W. Phelps, "Compulsory Arbitration: Some Perspectives," Industrial and Labor Relations Review (October, 1964), p. 82.

- 48 - resort to force to settle industrial disputes as a curious development in a society where all other types of disputes are settled by arbitra­ tion. 1/ Our whole system of jurisprudence relies upon the idea that anyone-with a grievance is able to compel an antagonist to meet him peaceably at a public meeting, where, after argument, a binding third­ party decision is handed down. No one apologizes for this; more often than not, the courts are referred to as the protectors of our liberties, defenders of freedom. The exemption of labor disputes from this same process is held to be wrong.

To be sure, strikes have not in recent years matched the record of 1946, when 5 percent of the working force went out on strike. Since 1957, the number of work stoppages has averaged about 3,400 per year, idleness from these strikes has totalled about 25 million man days per year. 2/ The Labor Department reported that 23.3 million man days were lost in 1964. This was 7.2 million higher than in 1963. 3/ The rising trend has continued into 1965. Many labor experts predict a restless year in labor-management activities with negotiations in several key in­ dustries yet to come. 4/ The year began with an East Coast dock strike which lasted for thirty-nine days and closed ports from Maine to Texas. At the peak of this struggle, nearly 200,000 workers, including 60,000 strikers were idle. 5/ As this is written (May, 1965), the nation nar­ rowly avoided a major steel strike by a temporary settlement which amounts to a four-month truce. The steel workers and management face another strike threat. Other recent strikes have focused the spotlight on collective bargaining and have provided additional arguments for those who have be­ gun to question its usefulness. §/ 1) Shipping from Maine to Texas has been tied up by two 39-day strikes in recent years by East Coast longshoremen.

2) Major air lines have been shut down twice in recent years. 3) The long drawn-out newspaper strikes in Cleveland and New York seriously disrupted commerce in these areas.

1/ Ibid., p. 81.

'!:./ New York Times, January 11, 1965.

3/ U.S. News and World Report (February 8, 1965), p. 80.

� U.S. News and World Report (January 4, 1965), p. 64. � New York Times, February 19, 1965. §! Labor Law Journal (June, 1963), p. 498.

- 49 - 4) Strikes lasting from three months to six months have not been unusual in a number of major industries.

Why do some experts believe that strikes will continue to be a serious problem? In recent years both labor and management have developed better methods to survive a strike. 1/ More attention has been directed toward the development of plans to protect the parties in case of a strike than to avoiding strikes.

The Taft-Hartley Act requires that sixty-days notice of contract termination to the other party and thirty-days notice to the Government be supplied before strike activity can be undertaken. In theory, the notice system has eliminated the impulsive strike by giving the parties time to reflect upon the problem. After the time interval specified by the notice requirements has elapsed, however, strike action can be taken abruptly.

The notice system has provided benefits to both management and labor when a strike threatens. Management can increase production prior to deadlines. 2/ Inventory can be shipped from factory to warehouses or yards around the country. Customers can be informed of the advisability of increasing purchases to avoid shortages arising from a strike. Companies have banded together to establish strike funds. 3/ In tre air lines indus­ try, for example, the a:ir lines that continue to operate during a strike pay a portion of their revenues to the individual line that has been closed by the union. 4/ This increases the ability of the individual company to with­ stand the strike and, in turn, leads the union to consider simultaneously all of the parties to the insurance agreement.

Unions also have increased their ability to withstand long strikes. Strike funds have been founded and expanded, and union constitutions and procedures have been liberalized to provide specific levels of strike bene­ fits so that striking members of many unions can expect to receive incomes as a matter of right, regardless of need. Various international unions have donated large sums to other unions engaged in major strikes. 5/ As a result,

1/ James L. Sterns, "Declining Utility 'of the Strike," Industrial Labor Relations Review (October, 1964), p. 62.

Ibid.

Ibid., p. 63. Labor Law Journal (July, 1960), pp. 595-606.

AFL-CIO News, November 11, 1959.

- 50 - it is clear that strikers can count on financial support which will enable them to continue a strike for a longer period than in the past.

Besides the increased ability of many major industries and unions to withstand long strikes, some experts point to the rise in some really hard-put problems in industrial relations. 1/ As industry turns to automa­ tion, unions feel that they are bargaining under a threat to their existence. Not all unions threatened by mechanization are able to bargain out a deal for their members as the dockworkers did on the West Coast, and the losses may be more than the union as a political organization feels it can afford. The growing conflict over automation involving labor and management may in many cases replace wage and other controversies as a major issue. A good example is the recent railroad dispute involving firemen and crew sizes which finally was resolved by compulsory settlement rather than collective bargaining.

At this point, we shall examine the actual harm which results from strikes in basic industries. There is harm directly to the strikers and management through lost wages and profits, and indirectly to other industries and the general public who depend upon the goods and services from basic in­ dustries. In 1959, some 500,000 steelworkers struck for 116 days. 2/ The workers lost an average of $2,000.00 each in wages. The steel industry lost an estimated $1.1 billion in profits. Long strikes in other industries cause comparable damages to bot� sides. It is true that usually, once strikes are settled, some of the losses are made up. Workers win pay raises. Often they are required to put in overtime at premium pay. The companies, as in the case of steel, sometimes can make up for part of the lost sales. The 1959 steel strike, however, started a parade of buying by U.S. consumers in foreign markets, and, in 1959, for the first time imports of steel exceeded exports. �

To the cost of enforced work stoppage in any basic industry must be added the failure of the method to assure a fair and reasonable settle­ ment. The outcome of a strike is often determined by the relative strength of the forces involved. The settlement reached by a strike is more likely to reflect the size of the union strike fund, or the company's ability to sustain the effects of closure, than the merits of the claims and counter­ claims at issue.

To the direct costs to unions and management of a strike in a basic industry must be added the cost to third parties not involved in the dispute. In the 1959 steel strike referred to above, about 540,000 workers

!} Phelps, op. cit., p. 90.

2/ U.S. News and World Report (May 3, 1965), p. 87. 3/ Ibid.

- 51 - were laid off in other industries; they lost about $750 million in wages. 1/ Companies affected indirectly by the strike lost an additional $500 million. And the U.S. Treasury lost $1.5 billion or more in revenue. The recent 39-day longshore strike brought critical losses to the nation's export business, particularly in grains. 2/ Hundreds of ships lay in ports wait­ ing for grain, more than 150 in Texas and other Southern ports alone. Sev­ eral nations, including France, Britain, Colombia, and Japan, bought their grain elsewhere. Japan, who is our best grain customer, turned to Red China where she purchased 250,000 tons of feed grains, chiefly corn. Mr. Erwin E. Kelm, president of Cargill, Inc., one of the leading grain con­ cerns, estimated the total national grain loss from the strike at $300 million. 3/ Exporters and importers of fruits and vegetables also reported considerable losses. Midway in the 39-day strike a group of importers of Chilean nectarines and other specialty fruits said that $1 million in such fruits spoiled in the port of New York alone. Besides these losses in grains and perishable fruits, other industries which suffered heavy losses were sugar cane refineries, copper, and automobiles to mention a few. 4/

At the peak of this struggle more than 800 ships were tied up. The Government estimated the cost to the nation at $67 million a day, or more than $2 billion in all. 5/ The President described the injury to the economy as "staggering." -The balance of payments worsened as a re­ sult of declining exports. Secretary of Commerce John T. Connor estimated that during the strike exports were off $60 million and imports off $40 million daily. In addition to the strikers, 38,000 other maritime workers were laid off because there was no work to do. 6/ Some 90,000 railworkers and truck drivers were out of jobs, with no-one to load their cargoes.

One cause of the strike was the long-standing policy of the Inter­ national Longshoremen's Association. Each local negotiates its own contract with shippers at each port. It is the union's policy not to work at any port until agreements have been reached by all the locals. The union settled with the New York shippers before the strike started, leading to the belief that y Ibid. 2/ New York Times, February 19, 1965.

3/ Ibid.

4/ U.S. News and World Report (May 3, 1965), p. 87.

� Ibid.

6/ Ibid.

- 52 - the dispute was over. The New York contract, which usually sets a pat­ tern, was described by the union's president, Thomas W. Gleason, as the best that the longshoremen had ever won. One by one, local unions reached agreements with the shippers, but there were a few holdouts. The President invoked the eighty-day injunction in October, 1964 under the Taft-Hartley Act. When the injunction ran out, the strike began.

Thus far in this discussion we have been dealing with effects related to strikes which actually occurred. Recently, the staff members of U.S. News and World Report conducted a survey among officials of steel companies and steel-using firms throughout the nation. 1/ The survey con­ cluded that the nation has suffered from the threatened-strike in the steel industry even though a four-months truce was reached prior to the May 1, 1965 strike deadline. This survey showed that:

1) Manufacturing firms using large amounts of steel were busy building up large inventories to tide them over a steel strike.

2) Many steel consumers turned to foreign producers for extra steel. Other firms planned to turn to foreign steel. 3) Money tied up in steel stockpiles could have been earning about $3 million per month if put to other uses. This represented a heavy loss of revenue for the steel-using firms.

4) The steel industry in some cases has sustained a lower profit margin where high cost units were brought back into production. Wage costs were up due to more overtime pay. 5) One might conclude that these effects be repeated as the steel industry faces another strike deadline on September 1, 1965.

Finally, to conclude this section on enforced work stoppages in basic industries, we might suggest two major conclusions: (1) Strikes are costly and do not necessarily guarantee an equitable settlement and (2) in certain basic industries, strikes affect the health and safety of the nation and their further toleration is questionable. B. Is the Problem Inherent?

If some strikes in basic industry imperil the health and safety of the nation, what can the present system do about them? As we have ex­ plained earlier in this chapter, the national emergency provisions of the Taft-Hartley Act provides an 80-day compulsory waiting period. During this "cooling off" period the Federal Government attempts to provide the most �ffective mediation and conciliation services possible. In effect, a strike which, in the opinion of the President, threatens the health and the safety y Ibid.

- 53 - of the nation is put on ice for eighty days under the Taft-Hartley Act. After the waiting period has expired, the parties are free to resume their disputes. It is hoped that both sides in this type of dispute will be reasonable. Public policy here is a gamble that some settlement will be reached before the country is hurt by a harmful strike. We are com­ mitted to a policy which accepts the philosophy that the parties will always reach the best solution.

At the same time, within these bargaining situations, we are dealing with big business and big unions. Each side has great power. How can you have large concentrations of power on both sides of the in­ dustrial fence and expect those who control this power not to use it to advance their own and their constituents' interests? As long as these power groups enjoy unrestrained and quasi-monopolistic control over the means of production, there may be conflicts which cannot be settled without recourse to economic coercion. The basic question, then, is whether the present emergency-dispute procedure is the most satisfactory one for meeting the goal of free collective bargaining while at the same time offering adequate protection to the public welfare.

The criticisms of the Taft-Hartley Act have been both procedural and substantive. In general, they are: lf

1) In practice the fact-finding board operates before the strike simply to secure the injunction. Although the board must make find­ ings of fact before the injunction can be issued, the decision to seek an injunction is usually made before the board is appointed. The board's deliberations thus have become nothing but a procedural step with little bearing on the decision to seek an injunction.

2) The board of inquiry is not empowered to make any recommenda­ tion, and the lack of authorization to make recommendations is considered a substantial limitation on the whole procedure.

3) The concept of "national emergency" is ill-defined. No usable criteria are stated to serve as a guide either to the board of inquiry or to the courts. 4) The last-offer vote serves no useful purpose. It results only in solidifying the disputing employees' position against the employer. Union members have never accepted an employer's offer under this voting procedure.

5) The injunctive history under the Act indicates that the pro­ cess of collective bargaining is not carried out effectively during the eighty-day waiting period. Settlements reached during the injunction period have more often been the result of outside pressure rather than real collec­ tive bargaining.

lf Labor Law Journal (October, 1963), pp. 828-29.

- 54 - 6) The procedures of the Act are known and the costs and bene­ fits of their invocation can be calculated by both parties during the dispute. Thus one of the parties may deliberately provoke an emergenc_y dispute if he believes that the injunction will be to his benefit.

7) One of the apparent goals of the waiting period is to allow a period of time for the public to react to the disputing parties' positions. Public pressure would cause one or both sides to become more flexible at the bargaining tables. Such a goal seems impractical in view of the fact that the board of inquiry is allowed to make no recommendations which might guide public opinion. In addition, there is real doubt whether public opinion is a significant force in labor disputes. C. Will Compulsory Arbitration Solve These Problems?

a) What is there to be said for compulsory arbitration of labor disputes? First it may be argued that it is a more civilized method of set­ tling industrial disputes than strikes or lockouts. It substitutes trial by jury for trial by combat. It would eliminate the time lost through strikes in basic industries and the harm which results to the public and subsidiary industries which depend upon basic industry. To those who charge that compulsory arbitration would result in price and wage fixing, it may be argued that comprehensive government control of wage settlements would produce a better national wage structure. The possibility of serious wage distortion under collectiY-e bargaining, which is discussed in the following chapter, might largely be avoided under public control.

b) It may also be argued that we already have considerable experi­ ence with compulsory arbitration in this country and that it has proven reasonably successful. During World War II the United States settled all types of disputes, including those involving new contracts. Despite the difficulties inherent under wartime conditions, some observers believed that the system achieved its objectives. Senator Wayne Morse of Oregon, an opponent of peacetime compulsory arbitration, concludes that it was a success in wartime and refers to "the many benefits" that flowed from the existence of the National War Labor Board during World War II. 1/ We already have compulsory arbitration of certain kinds of labor-management disputes. The largest class of disputes currently settled by compulsory arbitration involves grievances. 2/ The compulsion arises from contract clauses to which the parties have-agreed, which requires the submission of unresolved disagreements over interpretation or administration of the con­ tract to an impartial third party for settlement. The practice is now al­ most universal, and the number of disputes so settled runs into the tens of

Y Wayne L. Morse, "The Case Against Compulsory Arbitration," American Labor, ed. Bower Aly (Columbia, Missouri: Lucas Brothers, Publishers, 1947), pp. 97-106.

� Phelps, op. cit., p. 83.

- 55 - thousands. In total volume of dispute settlements, probably as many is­ sues go to compulsory arbitration each year as are settled by parties on their own. !/ c) Compulsory arbitration also seems entirely feasible from an administrative standpoint. It is often argued, to be sure, that compulsory arbitration is impracticable because there are no generally accepted prin­ ciples which government or some other third party could follow. Policies are developed through experience, not through abstract speculation. Dur­ ing World War II the National War Labor Board began its career with no policies regarding wages or anything else. In the short space of four years, it developed an elaborate body of principles on all major terms of union contracts, which proved capable of general application throughout the entire country. 2/ The experience of any future arbitration tribunal would doubtless be similar. Principles would emerge from the decisions of particular cases, as they do in courts of law. It has been said that compulsory arbitration of the terms of a labor agreement is a very different thing from compulsory arbitration of what an agreement means, which is grievance arbitration. The former is a matter of the interests of the parties, the latter a question of rights already established by a contract. In grievance arbitration, the arbi­ trator has the contract to use as a guide. But in contract negotiation, the interests of the parties have no theoretical limits. What would be the limits or the clues �o guide an arbitrator to a proper settlement? First, it is always preferable for the parties to work out their own agreement. No arbitration, contract or grievance, has to be thrown open to unlimited adjustment, either in the range of issues or scale of decision. Such a procedure would be practically unheard of--and quite unsettling for both the arbitrator and the parties. The customary pro­ cedure is to specify and carefully limit the issues to be passed upon and the range within which the decision is to fall. An example is the railroad arbitration of 1963, in which the issues placed before the board were two: the elimination of the unneeded firemen and the crew size dis­ pute. The remaining issues were handed back to the parties for further ne­ gotiation. The arbitrator or arbitrators will often be assisted by the arguments of the disputing parties. Such a tribunal could be made tri­ partite, representatives from labor and industry participating along with neutral arbitrators. The existing agreement might serve as a pattern which could set some practical limits to the range of decision making. Such limits might

!/ Ibid.

'!:/ Reynolds, op. cit., p. 295.

- 56 - be supplemented by transcripts of earlier negotiations, review of contract development over the years, and tests of conformity to related agreements in the same or other industries. These are the standard criteria for sup­ porting, denying, and compromising the demands of the parties. One ob­ server, Irving Bernstein, after a study of the results of arbitration cases, has concluded that the results of these cases did not differ appreciably from what might have been expected had the parties bargained out the issues themselves. lf

Finally, it can be argued that there is no lack of qualified people to hear and resolve contract disputes. Men with broad experience in labor relations can be found in all levels of government. These might include members of the Supreme Cour"t_Jof the Cabinet, members of Congress, agency heads, governors, mayors, deans, professors, and scores of private arbitrators practicing now throughout the country. Arbitrators can thus be found who are familiar with the problems of particular industries.

d) Will labor and management accept the decisions of compulsory arbitration? Compulsory arbitration might be employed only in work stop­ pages that clearly involve the public interest. The decision to employ compulsory arbitration could well be left to responsible public authority, such as the President. The widespread publicity which would result might influence the attitudes of the parties and encourage self-discipline in the face of adverse decisions. The level of acceptance up to the present has in fact been very high. '!:../

The danger strikes in basic industry may well require a new ap­ proach to guarantee national health and safety. Whenever collective bar­ gaining can achieve mutual agreement without resort to industrial strike, it should be encouraged to do so. Failing this, compulsory arbitration may prove to be the best solution to protect the interests of all parties.

IV. The Case Against Compulsory Arbitration A. There Is No Serious Problem

The case against compulsory arbitration should begin with an ex­ amination of the problems which compulsory arbitration proposes to solve. These problems must be both serious and inherent; that is, the present system must be unable to solve the problems. Compulsory arbitration is pro­ posed as a substitute for the strike in basic industries. We might begin here with an examination of the strike problem.

1/ Irving Bernstein, The Arbitration of Wages (Berkeley and Los Angeles: University of California Press, 1954), pp. 112-13.

'!:..! Phelps, op. cit., p. 87.

- 57 - It is worth noting that between 98 to 99 percent of contract negotiations carried out in the United States each year result in agree­ ment without a strike. 1/ The possibility of a strike, however, is a I' central feature of the bargaining process and the main force making for ultimate agreement. A strike exerts continuing pressure on both sides to reach agreement. As the strike lengthens and the cost mounts on both sides, the willingness of one or both parties to reach an agreement in­ creases. In this sense, a strike should be considered a different route toward an agreement instead of being considered an alternative to a col­ lective agreement. The number of man days lost through strikes has been declining in recent years. The volume of strike activity has fluctuated in the vi­ cinity of twenty-five million man days per year, as compared with an average of thirty-two million during the 1950's. 2/ Many labor observers feel that this reduced ratio will continue. Moreover, real national emergency strikes are rare. 3/ As has been explained earlier, the Taft-Hartley Act contains a procedure for dealing with these strikes. This procedure has been used twenty-four times since 1947, and under it the nation has compiled a credit­ able record of averting crippling strikes. 4/ Al though there are a few cases of repeated use in a single industry (maritI"me), the law has not seriously hampered collective bargaining. The disputants have in almost all cases reached their own agreement. Most "emergency strikes" are apt to occur in local industry (electric power, fuel, food, and food processing), and are a problem for state rather than federal regulation. 5/ Finally, industrial conflict in this country tends to be. concen­ trated in a small number of industries. 6/ Most of the present strike ac­ tivity is in basic steel, construction, electrical equipment, machinery, and the longshore industries. This fact should be kept in mind when legislative remedies are considered. Public reaction against strikes is a prime cause of much regulatory legislation, and it might be argued that the entire col­ lective bargaining system should not be impaired because of a few centers of conflict.

y Reynolds, op. cit., p. 182. 2/ Arthur M. Ross, "The Prospects For Industdal Conflict," Institute of Industrial Relations (Berkeley, California: University of California Press, 1962), p. 59. 1961 CED Report: Union Powers and Union Functions: Toward A Better Balance (New York: Committee for Economic Development, March, 1964), p. 27.

Reynolds, op. cit., p. 299. Ross, op. cit., p. 67.

- 58 - Some observers argue also that the loss from strikes is a great deal less than is sometimes assumed in popular discussion. 1/ Large strikes attract newspaper headlines. The loss, of course, is not to be judged by how much a strike reduces the wage incomes of workers or the profits of the company directly involved. The real test is rather how much the strike reduces the total national production of goods and services. It is quite possible for a large and dramatic strike to in­ volve no real loss in national output. In a seasonal industry, a strike may simply change the timing of the slack season. For example, this may be the case in bituminous coal mining, since the mines normally operate much less than a full year. 2/ A six-week strike at one point in the year may only mean that the mines-will operate six weeks longer at some other point. There is reason to suspect that some strikes in this industry have been called, not because of some serious union-manageinent dispute, but because the inventories of coal above ground have reached an unusually high level. In such situations, it may serve the best interest of both the union and management to reduce inventories and prevent a downward pressure upon prices.

In some strikes, public inconvenience is slight during the course of the strike and the loss in production can be quickly recovered. The first one hundred days of the 1959 steel strike created very little economic pressures; and once the stoppage had ended, the steel industry resumed pro­ duction with surprising speed. 3/ The copper industry offers a similar ex­ ample. The 1959 strike lasted for almost six months and invclved all the major producers. In addition to having large inventories, these producers were able to draw on their foreign operations to meet customer requirements. Although considerable reshuffling of supplies was necessary, there was little evidence that any employer experienced adverse economic pressure or suffered permanent economic loss. In fact, there was copper on hand when the strike came to an end.

Automation and technological changera.ve also produced some sub­ stantial changes in industrial conflicts. One of these has been to reduce the utility of a strike in a number of unions to a point where it may be of little practical help to the unions. Once production has become highly automatic, a small number of supervisors or nonstrikers may be able to main­ tain operations without strikebreakers. Oil refining is a case in point. if y Reynolds, o:e. cit., p. 291. y Ibid., pp. 291-92.

3/ Ross, o:e. cit., p. 66. y Ibid., p. 64.

- 59 - The Oil Chemical, and Atomic Workers struck for 191 days against the American Oil Company's refinery at Texas City, Texas. Al"i 1, 250 employees walked out on July 1, 1959. On the same day the company announced its in­ tention to continue operating. During the strike, production was about 75 percent of normal, with three hundred supervisors working six and even seven days a week.

Strikes in the telephone industry were highly effective at one time, but have progressively become less effective with the spread of dial telephone and associated automatic equipment. 1/ About 95 percent of telephones are dial operated and a rising percentage of long distance calls can be dialed directly. Ultimately the bulk of the telephone work force will consist of linemen, installers, repairmen, and plant craftsmen, whose work does not have day-to-day urgency.

Many strikes in the transportation industry tend to be selective; that is, the strikes are directed against individual carriers rather than the entire industry. This has been true in the airline industry and even occasionally in railroad strikes. Passengers and freight, therefore, usu­ ally have the opportunity to move by other carriers.

Finally, in some industries, such as electric power production and railway transportation, whose continuous production is essential to other industries, it is tacitly recognized that strikes cannot last too long. 2/ Unions in such industries have the right to strike, but observe the unwritten condition that they will not exercise the right too forcefully. Strikes in such industries do not last long.

B. Is the Problem of Strikes in Basic Industries Inherent in the Present System?

It may be argued that the emergency provisions of the Taft-Hartley Act have a creditable record in solving disputes in basic industry. For ex­ ample, there have been twenty-four boards of inquiry appointed since 1948. The key step in the national emergency strike procedure is the eighty-day injunction. In only six of the twenty-four cases did strikes occur after the end of the eighty-day period. Five of these were longshore disputes, of which four were on the East Coast. 3/ All in all, it might be concluded that real national emergencies involving work stoppages have not been very common. Also long strikes in basic industries seldom result in any serious-harm to the nation. Finally, lj Ibid.

2/ Reynolds, op. cit., p. 292.

3/ Phelps, op. cit., p. 85.

- 60 - the emergency procedures under existing legislation and the publicity which large strikes receive put sufficient pressure upon the parties to settle their own disputes. In this way, full freedom to bargain collec­ tively is preserved. C. Will Compulsory Arbitration Solve the Problem?

At this point, we want to examine compulsory arbitration as a solution to the problem of strikes in basic industries. Will compulsory arbitration actually prevent strikes and provide a more equitable solution of labor disputes than collective bargaining?

Based upon Australian experience, it may be argued that it will be difficult or even impossible to enforce decisions of compulsory arbi­ tration. Australia has had compulsory arbitration since 1904. Strikes affecting interstate commerce are prohibited, and disputes must be sub­ mitted to a Commonwealth Court of Arbitration. Most of the Australian states have similar legislation governing intrastate disputes. Neverthe­ less, between 1916 and 1935, Australia had 6,829 recorded strikes. 1/ Relative to the size of the Australian labor force, the number of strikes was about as great as the number in the United States. Many of these strikes were clearly illegal, but in few cases were any penalties imposed on the strikers. An important factor has been the strength of the Australian Labor Party, which makes punishment of strikers politically inexpedient.

If workers refuse to accept the arbitration decision, they may strike in protest. It is easy to say that workers cannot strike, but not easy to decide what to do in a democratic society when they simply do not show up for work. Perhaps the clearest illustration of this occurred in the contest between John L. Lewis and the Federal Government under the Taft­ Hartley Act in 1950. The strike by the coal miners was enjoined, and the union was ordered by the courts to terminate the stoppage. Fines which had been imposed on Lewis and the unions in similar circumstances had taught Lewis not to challenge the law or to evade court orders. He therefore promptly instructed all locals to end the strike and report back to work. But the union had a long-standing tradition of "no contract, no work." Since the court could not require Lewis to state that he had signed a con­ tract when he had not, the miners did not report back to work. Being aware of the miners tradition and having no evidence that Lewis had acted in bad faith, the court concluded that the union had complied with the court order and did not carry the case any further. When Lewis and the mine operators reached an agreement, the miners returned to work. Another aspect of compulsory arbitration emphasizes the difficul­ ties already described. A contract voluntarily signed creates a moral ob­ ligation on the parties to abide by their decision and make it work, whereas

y Reynolds, op. cit., p. 296.

- 61 - a contract forced upon unwilling workers or management carries no such obligation. A poor contract voluntarily arrived at might well work better than an apparently superior one to which the parties did not agree. In particular, a clause outlawing strikes for the length of the contract might have little vitality if the workers had not agreed to the contract against which they are not supposed to strike. A flood of wildcat strikes might be the result.

It may be argued also that compulsory arbitration may involve decisions that will be based upon political expediency. While in prin­ ciple a government board may exercise authority over unions and manage­ ment, in practice both labor and management will do their best to control the board. The history of the National War Labor Board provides some evidence of this tendency. lf Commenting on this problem, Lloyd G. Rey­ nolds states:

Government decision on the terms of employment, then is bound to mean decision based on political pressures and expediency rather than on ideal standards worked out by college professors. One should discard any notion that compulsory arbitration would lead to perfect justice or complete industrial peace. Where labor is politically powerful it is not feasible simply to 'crack down' on strikes, even though they may violate an established arbitration procedure. 'l:.f

D. Will Compulsory Arbitration Create Greater Problems Than It Will Solve?

A major argument used against compulsory arbitration is that it is a threat to free bargaining. For example, the National War Labor Board did perform compulsory arbitration during the war emergency from 1942-45, although its compulsory aspects were softened by a labor-manage- ment agreement to submit unresolved disputes to the Board and to abide by its decisions. 3/ Among the issues which came to the Board were those of vacations. Although the Board attempted to solve each case on its own merits, it soon found itself following its own precedents. In due time, almost every vacation dispute was settled with a standard "one for one, two for five" clause; that is, one week.of vacation for one year of service and two weeks of vacation for five years of service. As a result, free bargaining on the vacation issue virtually ceased. For if management in­ sisted on a less generous vacation period, the union would take the case to lf Ibid. 'l:.f Ibid., pp. 296-97.

Y Kuhn, op . cit ., p. 15 4 .

- 62 - the Board and obtain the standard vacations. If unions insisted on a more generous vacation period, management would take the case to the Board. As soon as both sides knew what the Board would rule, it seemed simpler to accept the Board's precedent without actually taking the case to the Board. There the precedent set by arbitration tribunal not only settled those cases which came before it, but tended to control decisions in thousands of voluntary negotiations. It has·been argued that compulsory arbitration in peacetime should be confined stri"ctly to those three or four cases which cannot be settled by other means, and which constitute a really serious threat to the economy. It may be argued in response, however, that this approach reckons without two important considerations. A law which prohibits strikes may remove an important pressure for voluntary agreement, and may automatically assure a rapid rise in the number of unresolved disputes. The three or four import nnt cases may turn into dozens, setting precedents and determining conditions for the whole economy. The second consideration is that to accept a given contract places a heavy responsibility on the shoulders of labor and management rep­ resentatives, since they might have difficulty explaining to their constitu ents why they could not do better in negotiations. Rather than make con­ cessions on a disputed issue in voluntary negotiations, one party or the other may prefer to "pass the buck" to the Board in the hope of a favorable decision. Even if union officials know that a decision on a certain point will go against them, they may incur less disfavor among their members by forcing the Board to make the decision and then exercising their democratic privilege of denouncing the Board. Another possible result of compulsory arbitration (and sometimes of voluntary arbitration as well) is to increase the number of union issues. The final stages of new contract negotiations usually revolve around a few key issues, all others being "worked out" or "swapped" in earlier negotia­ tions. But if the parties anticipate arbitration, they may cling to even the most trivial issues, reasoning that the arbitrator may grant half and deny half. Or they may believe that the arbitrator would be more willing to grant one major request if he can simultaneously tur.n down a score of minor requests. It may be argued that collective bargaining also has the merit of extreme flexibility to meet different circumstances. On any issue in dis­ pute, the parties are free to exercise their ingenuity and to devise a contract provision different from any existing provision anywhere in the country. This exercise of initiative at the grass roots of collective bar­ gaining might be stultified under compulsory arbitration, which might tend to follow established precedents and to place a premium on conformity with uniform national policies. Another argument is that compulsory arbitration would be a long step toward centralized control of the economy by the Federal Government.

- 63 - It may be possible in theory for the government to control wages without controlling prices, but it may be very difficult for the government to do this in practice. Anyone is entitled to argue that greater central control and planning of the economy is desirable for its own sake; but the argument should be made openly on this basis. We should not intro­ duce a centralized economy by the back door under the guise of preventing strikes.

The policy issue, then, is: Who shall have the final authority to determine wages and the other terms of employment? Under free collec­ tive bargaining, final authority rests with union and management officials. Their freedom also includes the freedom to disagree, with the consequent possibility of strikes. The alternative is to vest final authority in a government board or a third party by requiring that all unsettled disputes be referred to a board for settlement.

- 64 - QUESTIONS FOR DISCUSSION AND REVIEW

1. What are the provisions in the Taft-Hartley Act for the adjustment of "emergency" disputes?

2. How effective have these procedures within the Act been when they have been used?

3. Evaluate the following methods of dispute settlement: (a) plant seizure, (b) an injunction, (c) a "cooling-off" period, and (d) board of inquiry.

4. What comparisons can be drawn between those labor-management disputes now subject to compulsory arbitration and those which are still subject to collective bargaining?

5. What is meant by a basic industry? 6. Which labor-management disputes have the most serious effect on the Nation?

7. What comparisons can be drawn between the Australian program of compulsory arbitration and the American collective bargaining experience?'

8. What are the advantages and disadvantages of compulsory arbitration?

- 65 - BIBLIOGRAPHY

A. BOOKS AND PAMPHLETS

Braun, Kurt. Settlement of Industrial Disputes. Philadelphia: The Blakiston Company, 1944.

Labor Disputes and Their Settlement. Baltimore: John Hopkins Press, 1955.

Chamberlain, Neil W. The Labor Sector. New York: McGraw-Hill, 1965.

Fleming, R. W. Emergency Disputes and National Policy. New York: Harper Bros., 1955. France, Robert R. and Lester, Richard A. Compulsory Arbitration of Utility Disputes in New Jersey and Pennsylvania. Princeton: Princeton University, 1951.

Gregory, Charles 0. Labor and the Law. New York: W. W. Norton and Company, Inc., 1958.

Hill, Lee and Hook, Charles R., Jr. Management at the Bargaining Table. New York: McGraw-Hill, 1945.

Industrial Relations Counsellors. Emergency Disputes: A National Labor Policy Problem - Memo No. 138. New York: Industrial Relations Counsellors, 1961. Industrial Relations Research Association. Emergency Disputes and National Policy. New York: Harper, 1955. Johnson, Julia E. Compulsory Arbitration of Labor Disputes. New York: H. W. Wilson Co., 1945.

Johnson, Richard B. Government Seizure and Labor Disputes. Philadelphia: University of Pennsylvania, 1948.

Kheel, Theodore H. The Pros and Cons of Compulsory Arbitration. New York: New York Chamber of Commerce, 1961. Lester, Richard. Economics of Labor. New York: Macmillan, 1946. Millis & Brown. From the Wagner Act to Taft-Hartley. Chicago: University of Chicago Press, 1961. Millis & Montgomery. Organized Labor. New York: McGraw-Hill, 1945. New York Chamber of Commerce of the State of New York. Proposed Amendments to Taft-Hartley Law. New York: New York Chamber of Commerce of the State of New York, 1953.

-66 - New York Committee for Economic Development - Labor Study Group. Public Interest in National Labor Policy. New York: New York Committee for Economic Development, 1961. Northrup, Herbert R. Strike Controls in Essential Industries. New York: National Industrial Conference Board, 1951.

Owen, W. V. Labor Problems. New York: The Ronald Press Company, 1946.

Parnes, Herbert S. Union Strike Votes. Princeton: Princeton University, 1956.

Reder, Melvin W. Labor in a Growing Economy. New York: John Wiley & Sons.

Roach, Bruce. Required Arbitration of Labor Disputes. Austin: University of Texas, 1947.

Roberts, Harold S. Government Intervention in Industrial Relations. Honolulu: University of Hawaii, 1962.

Seizure in Labor Disputes. Honolulu: University of Hawaii, 1949.

Seidman, Joel and Slovenko, Ralph. Symposium on Labor Relations. Baton Rouge, La.: Claitor's Book Store, 1961.

Teller, Ludwig. A Labor Policy for America. New York: Baker Voorhis & Company, Inc., 1945. Watkins, Gordon S. and Dodd, Paul A. Labor Problems. New York: Thomas Y. Crowell Company, 1940.

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Beirne, Joseph A. "Emergency Disputes and Compulsory Arbitration," Rutgers University Proceedings (June 5, 1953).

Benewitz, Maurice C. "Grievance Arbitration," Labor Law Journal (September, 1963), p. 790.

Bennet, George. "The Government in Labor Relations," Personnel Administration (January-February, 1963), p. 54. Bloch, Joseph W. "Strike and Discontent," Monthly Labor Review (June, 1963), p. 645.

Block, Joseph L. "Government, Labor and Management," Vital Speeches (February 1, 1963), p. 250.

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Cole, David L. "Industrial Relations," American Federationist (February, 1963), p. 7.

"Outlook for Free CollA�tive Bargaining," University of Notre Dame Proceedings (1960), p. 76, "Role of Government in Emergency Disputes," Temple University Summaries (December 3, 1952), p. 375.

"Role of Government in Industrial Disputes," University of Notre Dame Proceedings (1953), p. 38.

"U. S. Intervention Kills Collective Bargaining," Nation's Business (March, 1962), p. 38. "Collective Bargaining and the American Economy," Saturday Review (January 13, 1962).

"Compulsory Arbitration the Only Answer," United States News (May 31, 1946), p. 34.

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- 76 - CHAPTER IV

THE FUTURE OF INDUSTRY-WIDE COLLECTIVE BARGAINING

Introductory Essay

This chapter considers the question whether the Federal Govern­ ment should prohibit industry-wide collective bargaining. Since we have already defined "collective bargaining," we need only probe the meaning of the term "industry-wide." This raises several problems both of defini­ tion and of debate strategy, and requires the making of some choices. We then review the history of industry-wide bargaining and consider some of the reasons why not only labor but even management sometimes prefers to bargain for the whole industry at the same time and place. Here we en­ counter some of the benefits of industry-wide bargaining, some of the arguments which might eventually be useful to the negat1ve in supporting the status quo. The bulk of the chapter is devoted to the case against industry-wide collective bargaining--the attacks upon industry-wide bar­ gaining and some of the answers to these attacks. Finally we examine several proposals for the prohibition of industry-wide bargaining, from which the affirmative plan might be fashioned. Because of additional evils that several of these proposals might introduce, it becomes apparent that the Affirmative will have to draft its plan carefully and thoughtfully.

Our next proposition is "Resolved: That the Federal Government should prohibit industry-wide collective bargaining." This resolution raises some difficult questions which we shall examine in this order: (1) What do we mean by "industry-wide collective bargaining?" (2) What factors led to the development of industry-wide bargaining and what are its prin­ cipal functions? (3) What evils are caused by industry-wide bargaining? (4) What methods could be used to prohibit or eliminate industry-wide bargain­ ing? and (5) Would these specific proposals introduce any new and serious disadvantages? By analyzing these issues in turn we shall explore the major issues upon which the debating of this proposition will probably turn. We cannot, of course, even attempt to be exhaustive, nor can we document the arguments in detail. We can only suggest lines of argument that may be fruitful for both Affirmative and Negative. The development of these argu­ ments is up to you, the individual debater.

I. What is Industry-Wide Collective Bargaining?

We must begin by defining our terms. In this resolution we have one term that needs to be explained. Since we already have some idea what "collective bargaining" means (see Chapter I), we need only define the new phrase "industry-wide." Perhaps a workable and brief definition would be that used by the Research and Policy Committee of the Committee for Economic Development in its 1964 study of labor-union power: "Simultaneous bargaining

- 77 - with all or most of an industry, nationally or in a significant area or region, resulting in a standard contract."!/ Another authority suggests that industry-wide bargaining usually involves "negotiations between the unions and all employers in an industry acting as a unit (multiple-unit representation)." 2/ These two definitions should give us enough to work with.· Industry-wide-bargaining, then, means an arrangement by which all (or most of) the unionized employers in a par­ ticular industry bargain together, usually through an employer association, with a particular union for the purpose of concluding a uniform labor con­ tract that will bind the whole industry, at least on all important questions. There are many arrangements that are sometimes referred to as industry-wide collective bargaining but which do not really fit this defini­ tion. Every affirmative team should consider whether it wants to relax the definition to include some of these other somewhat similar bargaining patterns. There is, for example, a good deal of region-wide collective bargaining--that is, among employers located in a geographical area--which does not purport to bind members of the industry outside the area. One group of experts observes, "There are many such area-wide contracts in American industry but few industry-wide contracts." 3/ In addition to the many area-wide agreements, there is another bargaining pattern sometimes mistakenly called "industry-wide bargaining." In fact it is very different, as we shall see. This is the so called "key bargain" pattern found, for example, in the steel industry, where the initial settlement with one of the leaders of the industry tends to set the model for the rest of the industry to follow. The critical difference between this approach and true industry-wide bargaining is that in the latter, all employers in the industry bargain together and reach agreement with the union around the same table at the same time. In the "key bargain" or pace­ setting situation, on the other hand, bargaining ov.er the key agreement takes place first and then the other companies, or most of them, accept simi­ lar agreeirents but are always free to bargain their own terms with the union. There is a third bargaining pattern that is often, and under­ standably confused with industry-wide negotiation. That is company-wide bargaining, whereby representatives of the national or international union bargain over a central contract for all plants or offices with top-level officials of a company that may have branches throughout the country.

1/ Committee for Economic Development, Union Powers and Union Functions: Toward A Better Balance (A Statement on National Policy by the Research and Policy Committee) (New York: CED, 1964), p. 35.

2/ Patrick M. Boarman, Union Monopolies and Antitrust Restraints (Washing­ ton, D.C.: Labor Policy Association, Inc., 1963), pp. 97-98. Sumner H. Slichter, James J. Healy, and E. Robert Livernash, The Impact of Collective Bargaining on Management (Washington, D.C.: The Brookings Institution, 1960), p. 927.

- 78 - Sometimes it is not possible to standardize the contract through company­ wide negotiations, but where it is possible, this pattern tends to be used largely because it reduces the time and expense that both labor and management must devote to collective bargaining.

Because of this confusion, two labor experts have recently sug­ gested that most people aren't really thinking of pure industry-wide bar­ gaining (as we have defined it) when they use that term. "The term," they suggest, "is a misnomer· for cases of actual industry-wide bargaining are rare." They go on to explain what is more often meant: "Closer examina­ tion of legislative proposals aimed at this type of bargaining indicates that t�ey are really concerned with multi-unit bargaining--that is, collec­ tive bargaining arrangements covering more than one plant--particularly where the effect of a breakdown in bargaining can substantially curtail production and employment in an industry." 1/ Examples of this sort of collective bargaining, the authors go on to-point out, are much more com­ mon than examples of the true industry-wide pattern.

Quite early in the game, then, affirmative debaters must make a choice. They must either approach the resolution in its pure, narrow setting with a definition like the one we first proposed, or they must adopt the layman's concept. That would define the term roughly as: "col­ lective bargaining which includes several members of an industry, or which covers the entire industry in a geographical area or region." In making the choice, several factors will have to be considered: The "pure definition" case will of course be somewhat narrower in scope; both the evils and the benefits of the proposed change will be more limited. It may be more difficult, particularly during the first part of the debate season, to find enough material on real industry-wide bargaining to build a good case. Thus it may be safer to get started by talking in terms of ''multi- unit bargaining" or "area-wide bargaining." The alert negative team may, of course, refuse to accept this definition, and insist that the Af­ firmative stick to the narrow definition of industry-wide bargaining. So any Affirmative that wants to take the broader definition should be ready to answer when the Negative presses for the more limited approach.

II. Development and Functions of Industry-Wide Bargaining

Now that we have a rough idea of our subject, it is time to take a look at how and why industry-wide bargaining has come to pass. Before considering specific factors in this account, there are two general points that should first be made. One has to do with the legal setting in which we are working. As we saw in Chapter II, many aspects of collective bar­ gaining are regulated by the law. It is the job of the National Labor Relations Board to determine before holding a union election what is an

lf Herbert R. Northrup and Gordon F. Bloom, Government and Labor: The Role of Government in Union-Management Relations (Homewood, Illinois: Richard D. Irwin, Inc., 1963), pp. 30-31.

- 79 - "appropriate" unit for collective bargaining. Typically such a unit will be the individual plant or factory (for an industrial union), or all the employees of a particular skill or trade within the plant (for a craft union). Thus the federal labor law in a sense sets a lower limit on the size of the unit for collective bargaining. But the law imposes no upper limit; it neither encourages nor discourages multi-unit bargain­ ing by two or more employers , or company-wide bargaining within a single firm. The law is thus indifferent to multi-unit bargaining,which has grown up informally outside the law. This development is partly a result of the fact that the antitrust laws, which forbid combinations or agree­ ments among businessmen tending to dominate a particular market or product, have not been applied to agreements among representatives of labor that may dominate a labor market. Organized labor has long enjoyed a broad immunity from prosecution or civil suit under the antitrust laws. We shall explore this immunity further toward the end of this chapter. The other introductory comment concerns the measurement of the scope or boundaries of the bargaining unit. So far we have been speaking essentially in the employer's framework, defining the bargaining unit in geographical terms (that is, "nation-wide" or "area-wide.") We should bear in mind that bargaining units can just as meaningfully be defined from the union's point of view as essentially political units--that is, in terms of a particular trade or craft or industry, or the jurisdiction of a regional labor council. For the most part we shall continue to use the employer's framework, just because it is more commonly used by the experts. But one should be aware that the difference exists. 1/ So much, then, for the preliminaries. Let us now consider some of the reasons for the develop­ ment of multi-unit and industry-wide collective bargaining. We must deter­ mine how the practice came about before we can consider its shortcomings and the proposals to abolish it.

A. Who Desires Industry-Wide Bargaining?

There is no easy, pat answer to this question. Sometimes it is the employer, sometimes the union, that desires industry-wide collective bargaining. And sometimes two different craft or industrial unions that deal with a particular employer on a nation-wide scale will have quite different views. For example, in bargaining with the large metal can manufacturers, the United Steelworkers prefer and have obtained industry­ wide master agreements, while the International Association of Machinists have favored separate agreements for each plant. In general, though, unions tend more often than employers to favor industry-wide bargaining. It is very difficult, however, to tell which way the trend for the future is going. Although "it is perhaps true that in the long run the tendency is for the unit to become larger ... in a few instances there has been movement away from company-wide bargaining uni ts." y

Neil W. Chamberlain, Frank C. Pierson, and Theresa Wolfson, eds., A Decade of Industrial Relations Research, 1946-1956 (New York: Harper & Brothers, 1958), p. 30. y Slichter, Healy & Livernash, op. cit., p. 930.

- 80 - Because of these cross-currents, there has been a tendency to compromise--a tendency which is important for our understanding of the scope and nature of multi-unit collective bargaining. The issue is not always, perhaps not even often, the abstract, black-and-white issue of industry-wide vs. local bargaining. The real debate between union and employer may often center upon which issues will be negotiated at which level. Thus when labor and management cannot agree on the bargaining unit or level, they may reach instead a compromise or a,ccommodation in the al­ location of certain questions to one level or the other. There are prob­ ably few instances in which an industry-wide agreement precludes negotia­ tion of every question at the plant level. There are questions that vary so much from plant to plant that they have to be left to local bargaining within the overall framework of a nation-wide or industry-wide agreement.

B. Why Does Labor Often Favor Industry-Wide Bargaining?

There are certain situations in which labor considers industry­ wide or at least area-wide bargaining to be absolutely essential. This is the case where union members customarily work for several employers-­ for example, in maritime, construction, and needle trades. The increasing mobility of union labor with the ease of travel and greater job opportuni­ ties in rapidly developing parts of the country, are among the reasons why labor may prefer a standard collective-bargaining agreement covering the whole industry. These factors have given the AFL-CIO a strong inter­ est in "collective bargaining clauses to protect workers whose plants move to new locations--provisions that give workers the opportunity, on the basis of seniority, to work in the new plant.... " y

Another factor which inclines labor to prefer industry-wide bar­ gaining is the increasing complexity of negotiations at the bargaining table. Where it used to be possible for a few representatives of each side to sit down and draft a contract only a few pages long, the negotiatjon of the modern contract (often hundreds of pages long) is a vastly more difficult business. Thus there is an increasing need at the bargaining table for services and skills which only the largest unions can muster. One labor observer noted recently:

As collective bargaining encompasses broader areas, more and more specialized skills are required of the negotiators. Only the largest union locals can afford to pay the actuaries, health plan experts, and pension advisers who now flank the negotiators on both sides of the table. y

In addition to the new and specialized bargaining which is possible on an industry-wide basis, there is increasing interest in "year-round bargaining"

Y American Federation of Labor & Congress of Industrial Organizations, Labor Looks At Automation (Washington, D.C.: AFL-CIO, 1959), p. 23. Paul Jacobs, The State of the Unions (New York: Atheneum, 1963), Y pp. 274-75.

- 81 - --that is, carrying on negotiations all during the term of the contract so that crises will be fess likely to arise when the contract is about to expire. Labor Secretary Willard Wirtz, for example, has recently urged that: The problems with which collective bargaining must deal, especially during a period o'f reconstruction in an industry, demand the ·continuing cooperative attention of the parties. The contract renewal period should come only as the culmination of an extended period of consideration of the issues which it is known will arise. y Such a continuous pattern of bargaining is obviously more feasible where negotiations are area- or industry-wide. A final factor is that industry-wide bargaining may enable unions "to equalize wage costs in industries where wages are an important cost factor..•• If wage rates were not equalized on a national basis [in certain industries such as men's clothing, for example] employers who compete with one another in the national market would have cost advantages attributable to a diversity of settlements in wage rates." 2/ What this m�ans is that it is often to the unions' advantage to level out the wage rates across the country, especially in industries where wages constitute a large per­ centage of the total price of the finished product--as in the clothing in­ dustry. Where employers can compete in the national market primarily on the basis of their ability to keep wages low, the union is likely to suffer. In such industries the union may have a particular .. interest in industry­ wide bargaining as a way of keeping wage rates stable and uniform. C. Why Do Some Employers Favor Industry-Wide Bargaining? There are many reasons why not all employers favor industry-wide bargaining. In fact a majority of them probably oppose it. But there are some situations where multi-unit bargaining may be preferable for the employer. Perhaps the most important factor is the principle of "strength in numbers"-­ the protection against a strike that joint bargaining gives to individual members of the employer team. Where employers bargain individually, it is possible for the union to "pick off" or "hold up" individual employers, usually the smaller and weaker ones, by striking or threatening to strike. As Northrup and Bloom view the situation: If a union can pick off employers one by one, employers are, more often than not, helpless to prevent the union from achieving even the most outrageous demands. On the other y W. Willard Wirtz, Labor and the Public Interest (New York: Harper & Row, 1964), p. 62. '!:./ Northrup & Bloom, op. cit., p. 32.

- 82 - hand, when the companies form a common front, the union power is blunted because a strike means a strike of the entire industry. y There is a serious danger that employers who bargain separately with a very strong union may in this fashion be "whipsawed" or forced to accept a disadvantageous contract because they cannot resist alone. As a study group of the Committee for Economic Development observed several years ago: Employer associations for bargaining are usually formed for the same reasons that unions are formed. When many employers face a strong union, they are open to a union strategy of "whip-sawing," in which the union plays one employer against the other as it divides and conquers. Organization of employers is thus a way of checking union power. 'l:) There is, in fact, some evidence that this is exactly what has happened in the automobile industry, one of the largest industries in which the bargaining pattern is company-wide, but not industry-wide. One authority on the auto industry recently reported: Through strong, centralized direction of negotia­ tions, the international union [United Automobile Workers of America] has been able to pursue a tightly coordinated strategy that takes full advantage of the intense sales rivalry between firms. Auto managements, ...recognizing their vulnerability, have long deplored this system of bargaining and have repeatedly called for legislation to reduce or eliminate the power of the international union. More recently, however, the Big Three producers [Ford, General Motors and Chrysler], aware that nothing was to be accomplished through legislation, have sought to protect themselves against the union's whipsaw tactics by presenting a united front based on joint acceptance of common goals and a common strategy. � lf Ibid. 'l:J Committee for Economic Development, The Public Interest In National Labor Policy (New York: CED, 1961), p. 134.

� Robert M. MacDonald, Collective Bargaining in the Automobile Indus­ try (New Haven: Yale University Press, 1963), p. 5.

- 83 - In addition to these special considerations, some of the same factors that inclined some unions toward industry-wide bargaining have had a like effect upon certain employers. Multi-unit bargaining obviously saves time and money for everyone involved. The interest in continuous bargaining, moreover, is likely to be mutual where it exists. And management's need for specialized skills and personnel at the bargaining table has increased along with labor's, so that the small firm is no better equipped than the small · local union to participate alone in the highly complex modern negotiations. Finally, the elimination of regional and local barriers through changes in transportation and communication have produced national markets in which labor relations, as much as production and distribution, are best handled on a nation-wide scale. This is particularly true where the industry turns out a standardized product and where competition among firms is intense--for it is here that the standardization of costs (including labor costs) adds impetus to the normal pressures of the national market-place. lf

III. The Case Against Industry-Wide Bargaining If we are to cons.ider seriously the proposition that the Federal Government should abolish or prohibit industry-wide bargaining, then a case must first be made against it. The case must consist of objections to such bargaining which are both serious and inherent--evils that are sub­ stantial enough to warrant national attention, and which cannot easily be corrected short of major changes in bargaining patterns. We shall consider the case against industry-wide bargaining in three categories: First, its effect upon the national economy and the public interest; second, its effect upon organized labor; and third, its impact upon management. In each of these areas we can only suggest arguments. We cannot develop any of these contentions fully, nor can we furnish all the evidence that would be needed to develop such arguments in a debate. The task of filling out the skeleton is for the debater.

A. Does Industry-Wide Bargaining Hurt the Economy and the Public Interest?

To answer the question requires us to consider several ways in which industry-wide bargaining may affect the economy. The two most mean­ ingful points of impact are inflation and strikes. Each deserves some attention here to be followed by consideration of several less important economic issues.

1. Is Industry-Wide Bargaining A Cause of Inflation?

Inflation usually occurs when wages and prices rise faster than a nation's productive capacity. It can be absolutely ruin ous, as the experi­ ence of Germany and several other European nations has demonstrated

lf Slichter, Healy & Livernash, op. cit., p. 927.

- 84 - in the past. From time to time we have experienced mild inflation in the United States, but never in recent times has it got out of hand. There is always a lurking fear, however; that an artificial "wage-price spiral" might produce a runaway inflation that would imperil the economy. Such a spiral, it is often said, would most likely be caused by excessive and rapid wage increases in the basic industries as a result of union demands at the bargaining table--increases which in turn would push prices up on all products of those basic industries. Such price increases would increase the cost of living and would in turn soon be followed by more wage demands, and so it would go until the spiral got out of hand. This is the fear; we must now consider how this fear pertains to industry-wide collective bargaining.

It is no secret that one who dominates a market--through a monopoly of vital resource, or an exclusive patent, or even superior skill and knowledge--is in the best position to charge what the markets will bear. His prices are not limited by the effects of competition, the major deterrent to overcharging. What is true for a producer, it is argued, may also be true for one who has a monopoly control of the labor supply. Such is the strategic economic position of the union that bar­ gains with a whole industry at a time. A monopoly of the labor supply may tend to produce some of the same pressures for artificial wage increases that can be, and have historically been, caused by monopolists of produc­ tion. y What significance does this economic theory have for industry- wide bargaining? The point is that when each employer bargains separately, even with a powerful union, he is under strong competitive pressure to keep his costs, including his labor costs, as low as possible. But when all employers in an industry bargain together so that wage costs are the same for all of them, then no employer (except the non-union employer, per­ haps) has even the power, much less the incentive, to resist union demands in order to lower his labor costs below those of his competitors. "In short," as one observer notes, "the extensive monopolization of labor markets has not only rendered �mployer resistance fruitless; it has reduced the need to resist by imposing the same high costs on everybody." 2/ Another long­ time observer of the labor scene shares this view: "There can be no doubt," he concludes, "that the consuming public suffers from industry-wide bargain­ ing, because competition in labor costs goes far to insure full value re­ ceived for the consumer's dollar." y

See Edward H. Chamberlin, The Economic Analysis of Labor Union Power Y (Washington, D.C.: American Enterprise Institute, 1963), pp. 29-36. 'l:.J Boarman, op. cit., p. 47.

� Donald R. Richberg, Labor Union Monopoly: A Clear and Present Danger (Chicago: Henry Regnery Co., 1957), p. 128.

- 85 - On the other hand, economists differ widely about the actual monetary effect of the activities of organized labor on the wage struc­ ture. While there seems to be general agreement that over the long haul unions have had some measurable effect upon the wage levels, there is no consensus either about the degree or the direction of that effect. 'Ibere has been a vast amount of research done on these questions in the last fifty years. But the results are still generally inconclusive. There is no satisfactory answer, for example, to the question whether union wage pressures have raised the wages of union members at the expense of non­ union workers. 1/ '!bus it would seem even harder to draw any firm con­ clusions about the effect of any particular pattern of collective bargain­ ing on the wage structure, when the impact of the whole system of collective bargaining cannot be measured with precision. What this means, then, is that the effect of industry-wide bargaining upon the wage structure must remain largely theoretical.

On the other hand, it has been argued that inflationary tenden­ cies would actually be worse in the absence of multi-unit bargaining: "the employers would be 'whipsawed' into position by the union and therefore be compelled to make greater concessions than under market bargaining with an employers' association." 2/ Northrup and Bloom tend to. agre.e that in the absence of such multi-unit bargaining as presently exists, localized wage negotiations "might in the end produce even more inflationary results." Even though wage levels in these industries have been rising disproportion­ ately fast, "it is possible that the results would have been worse if there had been a series of local settlements with union vying with union to win the largest wage adjustment for its membership." 'lf 'Ibere are other economic considerations that may check the infla­ tionary potential of industry-wide bargaining. As far as the "monopoly" argument goes, one answer is that even the union which has a monopoly of labor in a large and important industry is usually subject to competition from two sources: non-union labor, and competing industries which may have lower labor costs. These points have been stressed by a recent study com­ mittee of the Conunittee for Economic Development. They add one other relevant limiting factor: The power of an industry-wide union may also be limited by another kind of competition, the substitu­ tion of different production methods using more capital

1/ See generally, H.G. Lewis, Unionism and Relative Wages in the United States: An Empirical Inquiry (Chicago: University of Chicago Press, 1963); Albert Rees, The Economics of Trade Unions (Chicago: Univer­ sity Press, 1962), ch. IV & V; Chamberlain, Pierson & Wolfson, op. cit. ch. IV.

2/ Chamberlain, Pierson & Wolfson, op. cit., p. 32. 3/ Northrup & Bloom, op. cit., p. 33.

- 86 - and possibly more uno.rganized labor, such as white­ collar workers, instead of organized labor. As labor costs of organized workers are pushed up, the incentives to make such substitutions increase and thus limit the extent to which unions can safely demand higher compen­ sation. y

This study group concluded, therefore, that the inflationary power of even the strongest industry-wide union was far from absolute, and that fears about inflation from this cause were sometimes exaggerated.

Despite the wide disagreement about the effect of union activity on the wage structure, there i's some consensus that large and powerful unions have had a disproportionate effect upon wage increases. But it seems to have been the key-bargain pattern industries rather than the industry-wide bargain industries where this upward trend has been most pronounced. This is particularly true where one or two key settlements set the pattern for the rest of the industry (as in steel and automobiles)--for it is here that the "whipsawing" effect works its worst. While the evidence of a correlation is far from conclusive, the inference is considered a sound one.±f

2. Industry-Wide Bargaining and the Threat of Strikes

We have already considered at length in Chapter III the nature and threat of strikes in the United States and their effect on the economy. After that discussion, there can be no doubt that an industry-wide strike-­ which is the inevitable result of a complete breakdown in industry-wide bar­ gaining--will be far more crippling than a strike against a single firm or only part of an industry.

On the other hand, we have already seen that industry-wide bar­ ga1n1ng tends to reduce the likelihood that such strikes will occur at all. When the union faces the possibility of an industry-wide "lockout" by the employers, it will be more cautious about calling the kind of strike that can rather easily be called against a single firm. Then too, as we saw in Chapter III, changes in the organization of industry (such as those result­ ing from automation) are making the strike a less potent weapon of labor than it was not so long �go. And in considering the danger of the industry­ wide strike, we must remember that such a strike is most likely to invoke the emergency eighty-day "cooling-off" procedure which Congress has placed at the President's disposal. Finally, the most serious threat of a crippling strike may come not from the industry-wide bargaining pattern, but rather

Y Committee for Economic Development, Union Power and Union Functions: Toward A Better Balance (New York: CED, 1964), p. 34.

See Frank C. Pierson, "The Economic Influence of Big Unions," Annals Y of the American Academy of Political and Social Science (January, 1961), Vol. CCCXXXIII, pp. 96, at 97, 105.

- 87 - from the key-bargain pattern. Yet even here the experts are in disagree­ ment. One labor relations expert notes, for example, that there is no clear proof that "'key' bargains •.• lead to more conflict than satellite bargains." He finds this theory "better at explaining individual situa­ tions than at explaining the propensity to strike industry by industry. "The steel industry," he points out, "sets patterns in the United States but is not particularly strike prone, and the longshoremen industry sets no pattern but is strike inclined." y Despite these doubts and qualifications the fear of truly dis­ astrous strikes constitutes one of the strongest objections to industry­ wide bargaining. Perhaps the point was most forcefully stated by three United States Senators who submitted a minority report in 1953 concerning proposed changes in the Taft-Hartley Act. The majority of the Committee had urged a form of industry-wide bargaining in the telephone industry-­ not so much because they felt it desirable as because they thought it in­ evitable. Senators Taft, Smith and Nixon disagreed: A Nation-wide bargaining unit ... would give one labor organization control over all employees in this vital communications industry, a power not unlike that possessed by the United Mine Workers in the coal industry and the railroad brotherhoods in rail transportation. The United Mine Workers, by strike action almost each year since the war, has cut off or limited the national supply of coal. Railroad strikes, in recent years, prevented only by Fed­ eral seizure, have threatened economic paralysis. The demand for industry-wide bargaining in the telephone indus­ try means entrusting to the hands of a few union leaders the power to strangle the voice communications lines of economic life in the United States. y 3. Industry-Wide Bargaining and the Economy: Other Problems Several other attacks could be made against industry-wide bar­ ga1n1ng in terms of its possible effect upon the national economy. It has been argued, for example, that industry-wide or multi-unit-bargaining tends to prevent the effective industrial development of economically underdeveloped regions of the country--indeed, may even intensify the gap between the highly industrialized and backward regions. One factor that attracts new capital into the underdeveloped regions is an oversupply of labor willing to work at wages lower than in the more developed parts of the country. The tendency of industry-wide bargaining to set a uniform national wage, may extinguish this incentive (except, of course, to the extent that non-union labor is available in the underdeveloped region).

y Clark Kerr, Labor and Management in Industrial Society (Garden City, New York: Doubleday & Co., Inc., 1964), pp. 127-28. y Quoted in Neil W. Chamberlain, ed., Sourcebook on Labor (New York: McGraw-Hill Book Co., 1964), p. 61.

- 88 - As one observer puts it: "If labor monopolists are successful in pushing up wages in such areas to the high levels prevailing in more developed regions, capital is discouraged from coming in, and may even be forced o·ut. Underdeveloped areas remain underdeveloped. Old developed areas may suffer stagnation." 1/ In short, an important factor in the mobility of capital, and perhaps-even in the mobility of labor, is destroyed.

Industry-wide bargaining, through whatever upward pressure it exerts on wage levels, may also impair the ability of American manufac­ turers to compete in world trade markets. One of the most serious dangers of an inflationary domestic economy is that a country will "price itself" out of the world market. American labor costs are already high in com­ parison to those of many other countries, even the industrialized nations. Our productivity, of course, is also much higher in most respects, and labor shares considerable credit for that. But the real danger is that increases in productivity may be absorbed, or more than absorbed, by wage increases demanded by strong unions. 2/ To the extent that happens, the resulting wage-price spiral may seriously weaken the ability of certain American industries to compete effectively for world trade.

B. Does Industry-Wide Bargaining Hurt Employers and Management?

The result of industry-wide bargaining, as we have seen, is that every employer in the industry will end up paying the same wages for the same work. In certain industries, employers favor this uniformity or standardization of wage levels. In construction and maritime trades, for example, where the typical employee works for several different employers during the year, employers as well as unions "prefer that wage competition be neutralized" because the wage differentials that would otherwise result would produce a "chaotic situation." y

On the other hand, this levelling process may seriously hurt certain employers at both ends of the productivity scale--the most ef­ ficient and the least efficient. From the point of view of the most ef­ ficient, Donald Richberg has argued, "There are definite disadvantages · [of industry-wide bargaining] to the employers in the loss of opportuni­ ties for high-cost producers to keep down labor costs, and of the oppor­ tunities for low-cost producers to obtain the most efficient labor by offering better wages than competitors." 4/ And, it goes without saying,

1/ Boarman, op. cit. J p. 61.

2/ Ibid., P· 141. 3/ Northrup & Bloom, op. cit., p. 32. y Richberg, op. cit., p. 128.

- 89 - where the most efficient employers cannot offer such wage incentives because of a standard industry-wide scale, the most ambitious and highly skilled workers cannot demand them.

Industry-wide bargaining may be particularly severe in its ef­ fect upon the employer at the other end of the efficiency scale. In fact, the least efficient firms may not even be able to survive and may be forced out of business. At the same time new firms may find it much more diffi­ cult to enter the industry. because they face initial costs that the es­ tablished firms do not face. The ability to keep labor costs low at the start, may greatly ease entry into the field. By setting uniform wage costs for new and established firms alike, industry-wide bargaining may tend to restrict entry into the field, and thus reduce competition. 1/ This will not only hurt the struggling young firms that cannot make a go of it; the public too suffers when competition is thwarted.

Industry-wide bargaining tends to defeat flexibility in other respects as well. High-level negotiations obviously cannot take account of special problems that individual firms may have; the industry-wide settle­ ment can only generalize and deal abstractly with the problems of the em­ ployer's side of the bargaining table. Thus, for example, a manufacturer of glass tableware withdrew from industry-wide negotiations "because other employers were not interested in its special problems." Because the industry­ wide settlement failed to cover certain individual problems it was described by at least one employer as an "umbrella for the inefficient." The authors who report this incident recount another which teaches a similar lesson: "Industry-wide bargaining among the railroads has handicapped management in bargaining for rules changes since rules that are burdensome to some roads are not burdensome to others." y

On the other hand, these criticisms of industry-wide negotiations may not be inherent. In the garment and clothing industry, for example, the experience has been quite different. Prior to 1937 bargaining in that industry was carried out on an individual firm basis. That pattern proved unsatisfactory for various reasons. Labor and management agreed to adopt an industry-wide arrangement of bargaining. In 1953 the president of the Clothing Manufacturers Association, Mr. Morton J. Baum, reported to the Senate Committee on Labor and Public Welfare on the success of the new bar­ gaining pattern:

I wish to point out that our industry-wide bar­ gaining does not cover the problems that ordinarily arise in local markets due to local conditions and local traditions. The local member organizations that are affiliated with our association handle such matters on a day-to-day basis.

lJ Boarman, op. cit .• pp. 98-100. 2/ Slichter, Healy & Livernash, op. cit., p. 928.

- 90 - We bargain on an industry-wide basis only on matters that are industry-wide; we bargain locally on local labor matters.

As a result of industry-wide bargaining, we find that competition which resulted from undercutting of the wage scales has practically stopped, and that greater efficiency in factory operations and progressive merchandising methods have become important factors in determining the success of a clothing business. 1J

Perhaps the clothing industry is not typical--partly because it has always consisted of a large number of small and highly competitive employers, partly because labor costs form so high a portion of all production costs, and partly because it is highly concentrated in a rather small area of New York City. But the debater should consider whether, in light of the quite satisfactory experience of this one industry with multi-unit bar­ gaining, the serious objections to such bargaining from the employer's point of view are as inherent as they may have appeared at first.

C. Does Industry-Wide Bargaining Hurt Organized Labor and the Worker? There seems little doubt that industry-wide bargaining will tend to increase the power of the national or international union at the expense of the locals. Even if, as in the clothing industry, "local" matters are left for negotiation at the plant or shop level, the important decisions must be made at the national or area-wide bargaining table. This concentra­ tion of power may have several detrimental effect�� For one, it will tend to make the union less responsive or responsible to the needs of the in­ dividual worker, who can make his demands known to his local shop steward or bargaining committee much more effectively than to the top councils of a union with hundreds of thousands of members. This situation seems di­ rectly contrary to the objective of the Landrum-Griffin Act, to restore union responsibility to rank-and-file needs and interests. There may be serious dangers in weakening the power and effectiveness of the local union, as Clark Kerr has pointed out. Although "the multi-plant unit serves the interests of entrenched [union] leadership in a most emphatic way," the. strong single-plant local union "is the most democratic entity in the trade­ union movement." President Kerr adds, however, that in most unions ex­ tensive constitutional reform "would be prerequisite to effective single­ plant locals." y Industry-wide bargaining is sometimes opposed in union circles on the groundsthat it virtually eliminates any effective competition among local lf Chamberlain, op. cit., p. 54. 2/ Kerr, op. cit., p. 35.

- 91 - unions. There is a feeling, report several Harvard labor experts, "that it holds back the strongest locals of the union from pushing for better conditions."!/ On the other hand, it has been argued that industry-wide bargaining introduces a new and more dangerous kind of competition among unions. One labor-relations expert (who is very critical of union power) maintains that "the tendency under industry-wide unionism is to pit the leader of one industry-wide union against the leaders of all the others." •This;• he contends: ...is a sure way to encourage union leaders to make fools of themselves, to ask for more and more special privilege, and to corrupt government still further and on still higher levels.... Yet the pres­ sure of prominence makes it necessary for top union leaders to strive for equal concessions from all. This can result only in violence, wasteful strikes, and what may even be worse--large-scale unemployment in industries which have been forced to make wage concessions that not all firms can afford. y This rather pessimistic observation suggests a final way in which industry-wide bargaining may hurt labor and the individual worker. Just as an industry-wide settlement may result in the setting of wage levels that will force the smallest and least efficient employers out of business, a certain amount of unemployment may result not only in these marginal firms but among the less skilled, less experienced and older workers in the large and more stable firms. That is, where labor insists upon a uniform wage, standard throughout an industry, this may serve to price some workers out of the market and thus create unemployment. This is particularly likely to happen where industry-wide wage increases give industry an incentive to replace labor with machinery at a faster rate than the natural development might have taken. There is some evidence that this has already been happening, and the development of industry-wide bar­ gaining patterns may be partly responsible. �

IV. The Other Side: The Case for Industry-Wide Bargaining The structure of this chapter makes it unnecessary to devote a s epa­ rate section to the arguments in favor of industry-wide bargaining. We began

!/ Slichter, Healy & Livernash, op. cit., p. 928. y Sylvester Petro, Power Unlimited: The Corruption of Union Leadership (New York: The Ronald Press, 1959), p. 268. Boarman, op. cit., pp. 75-78.

- 92 - the chapter by considering many of the reasons why industry-wide bargain­ ing has developed in certain industries, and why many unions and some employers favor this bargaining pattern. We observed that these arguments were especially applicable to such industries, as maritime and construc­ tion and clothing work, where industry-wide bargaining has been used rather extensively, and apparently successfully. So the Negative will find some of its strongest arguments in the explanation of how and why industry-wide bargaining has developed in the United States.

Other arguments for the Negative have been woven into the dis­ cussion of the case against industry-wide bargaining. For example, we pointed out that fears of inflation caused by such bargaining may be ex­ aggerated, and that it is very difficult to measure the impact of union pressures on the wage structure. Then we observed that the strike threat was less serious than the critics of industry-wide bargaining sometimes suggest. And we reported the highly successful experience of the clothing industry under industry-wide bargaining as evidence that some of the ob­ jections considered in the "case against" may not be wholly inherent-­ that is, they may be capable of correction without abolishing industry­ wide bargaining. Thus there is little more that could be said in support of industry-wide bargaining that has not already been said. For this reason we feel it unnecessary to set aside a separate section to restate the arguments that have already been made elsewhere in the chapter. We must now tackle the pressing task of drafting a plan by which to meet the debate resolution.

V. The Affirmative Plan: How Might Industry-Wide Bargaining Be Outlawed?

The resolution clearly calls for a new federal statute, an Act of Congress, that will prohibit industry-wide collective bargaining. In framing a specific proposal, we have first to decide what we want it to accomplish. Our objective at this point will depend largely on how the Affirmative decides to define "industry-wide bargaining." If it uses the narrow, "pure" definition, then the range of available plans will be some­ what narrower than if the Affirmative employs the layman's definition and is speaking of all forms of multi-unit bargaining. Let us keep this dis­ tinction clearly in mind as we attempt to frame a plan.

One other important distinction should be drawn before we get down to specifics. There are two basic and quite different ways of tackli ng the problem of prohibiting industry-wide bargaining--the one structural, the other functional. The structural approach is the more drastic of the two, for it involves breaking down for all purposes the permissible size of labor unions. The functional approach, on the other hand, does nothing to the size of the union as such but only restricts its activities in the bar­ gaining field. Thus a union legally prohibited from bargaining with a group of employers might nonetheless continue to carry out other functions (pub­ licity, education, lobbying for legislation, pension and welfare fund ad­ ministration, and collection of information important to labor, just to

- 93 - mention a few) at the national or international level. Some of our specific proposals will be essentially structural; others will be pri­ marily functional, although the distinction is not as sharp as may appear from this preliminary discussion. Here are the principal approaches to the problem: A. Restrict the Industrial Size of Unions

One obvious way of prohibiting industry-wide bargaining would be to provide that no union could represent (or bargain for) the employees of more than a single employer. This would serve to break the present large industrial and craft unions down into a number of smaller unions. That number would vary, of course, with the number of finns that now exist in the industry. In the automobile industry, for example, this would leave seven or eight quite large unions, because the auto industry consists of a small number of quite large firms. In the garment industry, on the other hand, there would be hundreds, perhaps thousands of very small (an probably ineffectual) unions. So drastic a solution, while it surely would meet the requirements of the proposition, would accomplish too much in some industries (and effectively abolish labor organization altogether), and too little in other industries. Thus, this proposal has been rejected by some experts as "quite unrealistic and impractical"; 1/ and even an economist who has grave doubts about industry-wide bargaining warns that "the optimum size union, or 'bargaining unit,' either from a private (labor) or from a public point of view, will certainly, like the optimum size firm, be different in different industries under different circwnstances." ·· And," he continues, "there are good reasons to think that it may not necessarily coincide with the optimum size firm." y B. Prohibit Bargaining With Competing Employers

A less drastic structural solution would be to prohibit any union from representing the employees of any employers who are in direct competi­ tion with one another (the antitrust laws supply the necessary guidelines for determining what constitutes "competition"). This would mean that a union could bargain with only one employer in each industry, but might ex­ pand its operations to several industries. Thus the United Automobile Workers Union could deal only with Ford, or General Motors, or Chrysler in the auto industry, but could bargain with, for example, one manufacturer of farm implements, one air craft manufacturer, one producer of heavy indus­ trial machinery, and so on. This solution might serve all the objectives of the ban on industry-wide bargaining without crippling union strength as seriously as might the first solution.

1/ CED Study, 1964, op. cit., p. 39.

2/ Chamberlain, op. cit., p. 35.

- 94 - The principal difficulties with these first two approaches are pointed out by the following passage:

Moreover, fobidding the same union to bargain with different employers in industries where the number of firms is very large and the number of employees per firm is small would in effect make collective bargaining un­ workable in such cases. Members of craft unions working on a temporary basis for contractors, and similar persons employed by proprietors or small enterprises, cannot be expected to set up tiny union locals in each of these firms.... On the other hand, some very large bargaining units would be unaffected by the limitist rule, for ex­ ample, General Motors (which in 1962 had 54 percent of the automobile market) and its employees .... the limitist rule, strictly interpreted, would be unable to take account of special cases; ... it could disrupt established bargaining relationships without yielding any discernible economic gain. lJ

C. Restrict the Geographical Size of Unions

A less drastic approach to prohibiting industry-wide bargaining would be to limit the size of unions to a certain geographical area or region--a city, county, state, or multi-state region. It should be ob­ vious that the drawing of such regional lines would be a very demanding and difficult task, but not necessarily impossible. It should also be apparent that the size of the bargaining area might.

D. Prohibit Industry-Wide Bargaining Activities by Unions of Any Size

So far we have discussed only those solutions which were essen­ tially structural. Instead of trying to break large unions down into small units, it may be more effective to deal only with the bargaining function of unions, for that i� after al�the focus of the resolution. Thus the most direct way to outlaw industry-wide bargaining would be to provide that although a union could represent the employees of as many employers as it could organize, it could bargain only with one employer at a time, or only for one region at a time.

lJ Boarman, op. cit., pp. 185-86.

- 95 - This approach would meet the technical r�quirements of the resolution. It.would probably return collective bargaining to the pat­ tern that prevails today in some large industries--the "key bargain"

pattern. Without some further prohibition1 1 against the use of union pres­ sure to get other employers to adopt the. : key package" there would be a serious danger that weaker employers would be "whipsawed" into line (as now happens sometimes in the steel.and otherindustries that follow the "key bargain" approach) . Also, . without a rule. ·against area-wide or regional negotiations� many of the present disadvantages of industry-wide bar­ gaining might persist with 'few benefits to show .for it. !/ E. Prohibit Interference With the Autonomy of the Local Union Some of the problems that arise in the "key bargaintt situation might be solved by an additional provision designed to protect the bar­ gaining activities of ·the local union against excessive interference by a strong national ·or international. This law would be designed mainly to protect the autonomy of the local union-. Donald R. Richberg has de­ scribed the form that such a law might take: ••• it would permit no combination of unions, either by federation or by uniting in a national union, to ex­ ercise such control over a local union as to take away its freedom and its obligation to bargain and contract solely with a single employer and only in behalf of its employees. The law would provide that any contract, procedure, or practice in restraint of the autonomy of a union to bargain or contract in behalf of the employees of a single employer should be held monopolistic and unlawful. 2/ This approach would raise several problems: If 1i terally applied, on the one hand, it might fragment or shatter all labor organization, along the lines of the first two solutions we considered. On the other hand, the standard it involves is unavoidably vague and could be made virtually m�aningless. But it may be a· step toward solving some of the problems raised by the functional approach to banning industry-wide bargaining. F. Subject Organized Labor to the Antitrust Laws The question whether organized labor should be placed under the antitrust laws is sufficiently difficult and important to be debated by

!/ For a good discussion of some of the difficulties inherent in this solution to the problem, see Sar A. Levitan, "An Appraisal of the Antitrust Approach," Annals of the American Academy of Political and Social Science, Vol. CCCXXXIII (January, 1961), p. 108, at 116. y Richberg, op. cit., pp. 132-33.

- 96 - itself. There has been a long history in which the courts have gone back and forth on this question. During the early part of this century many union ac.tivities were held to be in violation of the Sherman anti- trust law as "combinations or conspiracies.in restraint of trade"; unions were often treated virtually the same as employers who combined to dominate a market or raise prices. The passage of the Clayton Act in 1914 gave labor a broad immunity from the antitrust laws by providing that labor organiza­ tions sha 11 not "be held or construed to be illegal combinations or restraints of trade under the antitrust laws." But it was not until the Norris-LaGuardia Act in 1932 barred the courts from issuing injunctions against unions and their lawful organizing activities that the immunity really meant very much. Then in 1940 the U.S. Supreme Court held that even in a jurisdictional dis­ pute between two rival unions the courts had no power to invoke the anti­ trust laws, although nothing in the terms of the federal statutes went quite that far. Four years later, however, the Court qualified this decision by holding in another case that the antitrust inununity did not apply where a union conspires with employers in order to restrain commerce or eliminate competition in the product market (as distinguished from the labor market). 1/

Since that case several other decisions have clarified this dis­ tinction between restriction of competition in the labor market, and col­ lusion with employers to curtail competition in the market in which the employers sell their product. And the Supreme Court has held that a labor union enjoys no antitrust immunity if it is simply a cloak or "front" for a group of independent businessmen seeking to conspire or fix prices or put other competitors out of business. 2/ At this very time, in fact, there are two cases before the Supreme Court which will help to sharpen and rede­ fine the scope of labor's antitrust immunity. One of the cases is a suit by a small coal mine owner who claims that the United Mine Workers violated the Sherman Act, and forfeited the immunity, by conspiring with large coal mine owners to make it harder for the small mine owners to compete. The federal court of appeals held this union activity was outside the antitrust inununity. 3/ The other case is a suit by a retail grocery chain against the Meat Cutters and Butchers Union, claiming that the union and a group of independent food stores illegally conspired to restrain trade by agreeing to prohibit the sale of fresh meats after 6:00 p. m. The chain store claims this activity is also outside the union's antitrust inununity because it bears no relationship to the welfare or interest of union members. The court of appeals held that the immunity does not extend this far, and that the chain store may therefore recover damages. 4/ This case,too, has been appealed to the Supreme Court and should be decided during the summer of 1965.

1/ Allen-Bradley Co. v. Local No. 3, IBEW, 325 U.S. 79 (1945). 2/ Los Angeles Meat & Provision Drivers Union v. United States, 371 U.S. 94 (1962).

3/ Pennington v. United Mine Workers, 325 F.2d 80 4 (6th Cir., 1963).

4/ Jewel Tea Co. v. Associated Food Retailers of Greater Chicago, 331 F.2d 54 7 (7th Cir. , 1964 ).

- 97 - This, then, is the state of the law. This sununary leads us to the essential question: how would the abolition of organized labor's immunity from the antitrust laws affect industry-wide bargaining? Perhaps the short answer is that while the remedy might cure the disease, it would also probably kill the patient. For if unions were placed generally under the antitrust laws, then not only industry-wide bargaining but most other forms of collective bargaining would become unlawful at least in theory. All labor organization and collective bargair.ing have a certain restrictive effect on commerce, and tend to some degree to monopolize trade (in labor, at least). Thus placing labor generally under the antitrust laws might go far beyond the desired objective.

In practice, however, this seemingly drastic step might not even accomplish the more limited purpose of prohibiting industry-wide bargaining. As one expert notes, "the results of such legislation would largely depend upon the social and economic philosophy of the courts and their interpreta­ tion as to what constitutes the legal limits of the exercise of power by unions and the abuse -of such power." And as he points out, judges would disagree widely today, just as they did before labor was given any antitrust immunity, on what labor activities ought to be prohibited under the Sherman and Clayton Acts. The same expert notes also that the standards which the courts have developed in applying the antitrust laws to business combina­ tions and conspiracies are flexible, indeed some would say quite vague. The essence of the test applied to business is "the ruleof reason." The breadth of this standard would make it uncertain to what extent the appli­ cation of the antitrust laws would actually abolish industry-wide bargain­ ing. y

There is a final and serious objection to this proposal. Aside from the danger that, if strictly applied, the antitrust laws would make almost all collective bargaining impossible, such a legal step would almost certainly develop an unhealthy kind of competition among unions. Experience has shown that competition among unions is generally undesirable--it may lead to jurisdictional disputes, power struggles, and increases in the cost of labor. Thus the very purpose of the antitrust laws--to encourage competition among producers and sellers of goods--simply does not apply where the result would be competition in the labor market. y

G. Prohibit Industry-Wide Bargaining Which Tends Substantially to Lessen Competition

Even if the general application of the antitrust laws would not serve our purposes, there may still be a more limited role for the operation of antitrust principles. For example, the recent report of the study group of the Committee for Economic Development proposed as one possible solution

1/ Levitan, op. cit., pp. 113-14. y Ibid., p. 114.

- 98 - to the industry-wide bargaining problem that "organization of the em­ ployees of more than one employer in a single union, and combination or collusion among unions, could be prohibited where the effect is substan­ tially to lessen competition." Although this standard seems rather vague, the study group suggests that "determination of whether the effect is substantially to lessen competition in particular cases would be left to the courts." 1/ This standard is a meaningful one, moreover, because it is the standard now applied to test the legality of a business or corpora­ tion merger or consolidation under Section 7 of the Clayton Act. Another expert suggests that "in determining whether a given degree of labor mon­ opolization is in conflict with the minimum requirements of a competitive economy, the courts will doubtless have recourse to measures elaborated by economists (and the progress on this front has been considerable since the antitrust laws were first framed) ... The domination of an entire indus­ try, or even of many industries, by a single labor union and the practice of industry-wide bargaining or of nation-wide bargaining could conceiyably be restricted or reduced in the same way in which the courts restrict and proscribe 'monopolization' by business firms." y

H. Conclusion: Implications for the Debater

As our exploration of these several proposals should suggest, the drafting of a workable plan to abolish industry-wide bargaining is far from easy. Some approaches, such as restricting union size to the single employer, might do the job but would be very crude solutions. They would fail to achieve some of the important purposes of the resolution, and would intro­ duce additional serious disadvantages. Other approaches, such as the general use of antitrust laws, seem inappropriate to the nature and functions of collective bargaining. But this is not to say that any of these approaches need be rejected out of hand. What is needed is a careful consideration of the possibilities and the problems raised by each specific proposal. Then some thought should be given to combining two or more of the approaches dis­ cussed here--for example, by providing that region-wide bargaining should be permitted so long as, and only where it does not substantially tend to lessen competition. It is up to the individual debater, particularly the Affirmative, to work out such combinations. Perhaps no more should be said here than that no single, simple solution is likely to be entirely satisfactory.

1/ CED Study, 1964, op. cit., pp. 35-36. y Boarman, op. cit., p. 181.

- 99 - QUESTIONS FOR DISCUSSION AND REVIEW 1. What is the simplest accurate definition of industry-wide collective bargaining? What elements must such a definition include? 2. Why is industry-wide bargaining often confused with the more common pattern of multi-unit bargaining, or area-wide bargaining? What are the differences between these terms? 3. Why is true industry-wide collective bargaining rather un­ common in the United States today? In what industry or industries would you be most likely to find industry-wide bargaining, or area-wide bar­ gaining covering large portions of an industry? Would it be more common in an industry having many employers, or only a few employers? 4. Under what conditions would employers be most likely to favor industry-wide bargaining? Under what conditions would labor unions be most likely to favor it? Are there any conditions in which both manage­ ment and labor would be likely to prefer industry-wide bargaining? 5. Why is it ofteh misleading to speak of a dispute over in­ dustry-wide vs. local-unit bargaining, rather than of the level at which particular issues are negotiated? 6. What is the bargaining pattern in the automobile industry? In what way, if any, is the experience of the auto industry relevant to the discussion of industry-wide bargaining? 7. What problems are encountered in deciding whether industry­ wide bargaining has been a significant cause of inflation in the United States? What activities of organized labor might create inflationary conditions? What governmental programs other than control of collective bargaining can and do try to check inflation? 8. In what sense is the threat of strikes from industry-wide bargaining sometimes exaggerated? Are there other methods of postponing or preventing crippling industry-wide strikes than through control or regulation of collective bargaining? 9. What kinds of competition does a powerful industry-wide union face? How do these pressures affect the way in which industry­ wide bargaining is likely to be used by a powerful union? 10. In what ways may industry-wide bargaining hurt marginal or inefficient employers, or small employers trying to get a start in a new industry? 11. Does industry-wide bargaining pose any threats to democracy within the labor union movement?

- 100 - 12. What is the difference between structural and functional approaches to prohibiting industry-wide bargaining? What are the general advantages and disadvantages of each? Which do you feel the affirmative team ought to adopt in debating this proposition?

13. Why is the suggestion to limit collective bargaining and union size to a single employer sometimes criticized as "unrealistic"? Could this approach be combined with any other approach so as to make it more "realistic"?

14. What difficulties would be encountered in limiting the geo­ graphical area within which labor unions could organize and carry on bar­ gaining activities?

15. What arguments can be advanced in favor of placing organized labor under the antitrust laws? What arguments are there on the other side? Do you feel this would be an appropriate solution for the problems created by industry-wide bargaining?

16. In what other ways, if any, might the antitrust laws be used as part of the affirmative plan, without placing all union activities under the antitrust laws?

- 101 - BIBLIOGRAPHY

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Bahrs, George. The San Francisco Employers' Council. Philadelphia: Pub. for Labor Relations Council of Wharton School of Finance & Commerce, University of Pennsylvania Press, 1948. Berkowitz, Monroe. The Master Weavers Institute. A Case Study of Multi­ employee Bargaining, Ann Arbor: University Microfilms, 1919. Bradley, Philip D. The Public Stake in Union Power. Charlottesville: University of Virginia Press, 1959, Brundage, Albert. "The Lockout and Multi-employer Bargaining," Labor Law Journal (December, 1963). Carpenter, Jesse Thomas. Employers' Associations and Collective Bar­ gaining in New York City, Ithaca: Cornell University Press, 1950.

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Kaufman, Jacob Joseph. Collective Bargaining in the Railroad Industry. New York: King's Crown Press, 1954. Kessler, Selma P. (comp.). Industry-wide Collective Bargaining, an Annota­ ted Bibliography. Philadelphia: University of Pennsylvania, Wharton School of Finance and Commerce, Labor Relations Council, 1948. Lester, Richard A. "New Strait-jacket for Unions?", Nation (January 17, 1953). Lester, Richard A. and Robie, Edward A. Wages Under National and Regional Collective Bargaining. Princeton, N.J.: Industrial Relations Section, Princeton University, 1946.

Levy, Berthold William. Multi-employer Bargaining a nd the Anti-trust Laws. Philadelphia: Pub. for Labor Relations Council of Wharton School of Finance and Commerce, University of Pennsylvania Press, 1949. Lewis, H. Gregg. "The Labor-Monopoly Problem: A Positive Program," Journal of Political Economy (August, 1951).

Livernash, Edward Robert. Collective Bargaining in the Basic Steel In­ dustry. Washington: U.S. Department of Labor, 1961. McCabe, David A. "Problems of Industry-wide or Regional Trade Agreements," American Economic Review (March, 1943), Pt. 2. Discussion, by Abram L. Harris and Marion Hedges, pp. 197-204. (Papers and proceedings of the American Economic Association, 55th Annual Meeting, January, 1943.) "Major Union Contracts in the United States, 1961," Monthly Labor Review (October, 1962) .

Mason, Edward S. "Labor Monopoly and All That;' (With discussion.) Pro­ ceedings of the Eighth Annual Meeting, Industrial Relations Research Association (December 28-30, 1955), pp. 188-232.

- 104 - Miereyk, William H. The Economics of Collective Bargaining. Boston: D.C. Heath and Co., 1965, pp. 282-302.

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Pollar, Otto. Social Implications of Industry-wide Bargaining. Phila­ delphia: Pub. for Labor Relations Council of Wharton School of Finance and Commerce, University of Pennsylvania Press, 1948. Princeton University. Compulsory Arbitration of Utility Disputes in New Jersey and Pennsylvania. Princeton, N.J.: Princeton University, Robert R. France, research assistant, and Richard A. Lester, re­ search associate, 1951.

Robinson, Dwight Edwards. Collective Bargaining and Market Control in the New York Coat and Suit Industry. ·New York: Columbia University Press, 1949.

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"Trade Unions and Industry-wide Bargaining," (Washington), Editorial Re­ search Reports (January 1, 1947). Ulman, Lloyd. "Collective Bargaining and Inflation," California Management Review (Spring, 1960). U.S. Congress. House. Committee on Education and Labor. "Multi-employer Association Bargaining and its Impact on the Collective Bargaining Process," Report of the General Subcommittee of Labor .... Washington: U.S. Government Printing Office, 1965. Senate. Committee on Labor and Public Welfare. Labor Re­ lations Program. Hearings... 80th Congress, 1st Session, on S. 55 and S.J. Res. 22... 1947 . 'Washington: U.S. Government Printing Office, 1947, 5 pts. (See pt. 5, Topical Guide, for page references to testimony for and against industry-wide bargaining.)

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- 107 - CHAPTER V

A NATIONAL RIGHT-TO-WORK LAW Introductory Essay In this last chapter we discuss the proposition that calls for a federal law prohibiting the requirement of union membership as a condition of employment -- a national right-to-work law. We begin by defining the tern "right-to-work law." We next consider the relation­ ship between this proposition and union security provisions. To explore this subject we must survey the union security provisions of the present federal law, and the types of union security arrangements that are per­ mitted today. This requires an examination not only of the many possible union security clauses, but also of the various "checkoff" provisions by which compulsory union dues are withheld from· the workers' wages and turned directly over to the union. The second part of the chapter contains the heart of the argu­ ment about right-to-work laws. Here we consider a number of arguments which have been advanced against compulsory .unionism. These arguments are mainly grouped into three categories: the effect of compulsory unionism on the rights of the individual worker; its effect upon power and responsibility of union leaders; and its effect upon union democracy. We then consider the extent to which these criticisms of union security are really inherent, or are capable of being remedied without abolishing all foms of union security. We conclude the chapter with a survey of arguments on the other side, in defense of compulsory unionism. Each of the principal attacks on compulsory unionism is answered here. There is a final section dealing with new problems or disadvantages that might follow from the adoption of a national right-to-work law. Finally, we shall examine state right-to-work laws which are pemitted by Section 14(b) of the Taft-Hartley Act. We survey the different foms that these state laws take, the devices for their enforcement, and the recent U.S. Supreme Court decision which leaves enforcement to the state courts. Our third proposition is "Resolved: That the Federal Govern­ ment should prohibit the requirement of union membership as a condition of employment." For short-hand purposes, we say this resolution calls for the passage of a national right-to-work law. This action would change the present federal labor law in several important respects. In order to understand the nature and significance of those changes, it is essential to know what federal law presently provides about the require­ ment of labor union membership. After examining that question, we shall consider the present procedure by which states may, if they choose, pass right-to-work laws that are consistent with the federal law. We shall also consider how those state laws aper.ate, and how they are interpreted and enforced by the courts. We must also consider the alternative ways in which the Federal Government might handle the union-security issue--

- 108 - including the present approach and the one prope>Sed by the resolution for debate. Finally, the bulk of this chapter will be devoted to the arguments for and against the change called for by the resolution, the adoption of a national right-to-work law.

I. What is A Right-to-Work Law?

Before we begin our analysis, we ought to understand the term "right-to-work law." Basically, such a law separates the que.stions of employment and union membership, by providing that any worker may obtain and keep a job regardless of whether he belongs to or even pays dues to a labor union. For example, the first right-to-work law, which was passed in Florida in 1944, provided that "the right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization .... " It might appear at first that such a law would ban all forms of union activity or labor organization. But the Florida law went on to provide that it would not "deny or abridge the right of employees by and through a labor organization to bargain collectively with their employer." Thus, the typical right-to-work law forbids all forms of compulsory unionism while permitting voluntary unionism. Right-to-work laws themselves take many forms, which we will survey later in this chapter, but this is the essential framework.

II. Union Security Under Federal Law

Prior to the Wagner Act in 1935 many employers were reluctant to accept union demands to require all employees in the plant or store to join a union, or to agree to hire only union members. In the Wagner Act Congress determined that the unions needed greater security under the protections of federal law. Thus the Act gave workers the right to organize for the purpose of collective bargaining, provided for the election and certification of unions to represent the employees in a particular bargaining unit, and required the employer to bargain in good faith with a representative thus selected.

The Wagner Act said nothing one way or another about which forms of union security arrangements were permitted or prohibited. Thus most unions naturally selected the closed shop, which put the union in the strongest position. The closed shop is basically an arrangement under which the employer agrees that all workers must belong to the union to keep their jobs. He also agrees that when hiring new workers he will hire only union members. There were only two restrictions on the use of the closed shop under the Wagner Act: (1) that the union must have been chosen by .a majority of the employees in the bargaining unit (and it might lose its bargaining status if it later ceased to rep­ resent a majority); and (2) that it not be dominated or assisted by the employer in achieving its position. A few closed shops were therefore found unlawful even under the Wagner Act because they violated one or the other of these qualifications.

- 109 - A. Taft-Hartley Bans the Closed Shop

When Congress reexamined the situation in 1947, it decided that the closed shop was responsible for some labor abuses, and should be outlawed. In doing this Congress used the indirect device of pro­ viding that an employer could not require tmion membership as a condi­ tion of hiring a worker, and that he could not discriminate against any employee on the basis of nonmembership in a labor union if he had reason to believe that tmion membership was not available on equal terms to the employee or had been denied for some reason other than the employee's failure to tender his union dues or initiation fee. Thus the employer could never require full union membership even as a condition of keeping a job, but only that the employee pay his union dues and other fees. And even this requirement could not be imposed on any employee until 30 days after he began work (or the effective date of the collective­ bargaining agreement, whichever came first). Thus the two essential provisions of the closed shop were now illegal -- the one, that workers could be required to join the tmion before they got the job; and the other, that an employer could be forced to fire a worker because he had ceased to be a member in good standing of the union, even though he paid his dues. Thus Congress effectively outlawed the closed shop with­ out saying so in terms.

Even though the closed shop is theoretically illegal, it may persist widely in practice. It has been suggested, for example, that the Taft-Hartley provisions on l.lllion security "tended largely to drive the closed shop underground instead of out of existe�nce." The reason for this, the authors continued, was a practical one·:

Without control of hiring, it is almost impossible for unions in the construction, maritime, and other casual trades to exert effective control over working condi­ tions. Employees in such industries typically work for several employers, and leave the job when it is finished. Seniority or other controls over layoffs are therefore ineffective. !/

B. Landrum-Griffin Permits the Return of A Limited Closed Shop Largely for the reasons indicated in the passage just quoted, Congress provided in.the Landrum-Griffin Act for a limited form of closed shop in the construction and building industry. In the new Section 8(f) which was added in 1959, Congress permitted (or perhaps it would be more accurate to say "legalized") the use of so-called "pre-hire" agreements in the building trades. Such agreements may make union membership com­ pulsory seven days after the job starts,rather than the 30 days that are required by Taft-Hartley for all other industries. The new statute also makes it lawful for a l.lllion to require an employer to notify the union

!f Herbert R. Northrup & Gordon F. Bloom, Government and Labor: The Role of Government in Union-Management Relations (Homewood, Illinois: Richard D. Irwin, Inc., 1963), p. 223.

- 110 - of job openinys and Lo give the union a first chance LO refer qualified applicants from its own "hiring hall." The union can also specify minimum training or experience requirements for such jobs as are referred to it. Thus a good deal of what may actually have been done in the construction and building trades since 1947 has now been legalized as of 1959--although even this limited amendment does not permit the use of the true closed shop because even a construction union may not force an employer to dis­ charge a worker who willingly offers to pay his union dues. C. Union Security Under the Railway Labor Act There is an interesting history of union security affecting railroad and air line employees covered by the Railway Labor Act. When the Act was first passed in 1926, it made no provision either way with respect to forms of union security. In 1934, however, Congress took the very drastic step of outlawing not only the closed shop but all forms of union security under the Railway Labor Act. This provision was really the first and only national right-to-work law, and for that reason it is parti­ cularly important to the present debate topic. The 1934 union security amendment provided: Employees shall have the right to organize and bargain collectively through representatives of their own choosing •.• and it shall be unlawful for any carrier..• to influence or coerce employees in an effort to induce them to join or remain, or not Lo join or remain, members of any labor organization or Lo deduct from the wages of employees any dues, fees, assessments or qther contribu­ tions payable Lo labor organizaLions ..•.!I This right-to-work provision remained in effect for 17 years. The experience of the railroad unions under iL is hiyhly relevant Lo the present debate, and we shall examine some of Lhal experience laLer in this chapLer. In 1951, however, Congress set ouL Lo bring the Railway Labor Act inLo line with TafL-HarLley and again provided for union securiLy arrangements. Like Taft-Hartley Lhe present Railway Labor Law bans the closed shop and provides that nonpayment of dues and fees is the only ground for firing a worker as a resul L of his expulsion from the union. While the major union security provisions of the two laws are similar, '1:_I HLA does not permit State "riyht-to-work" laws. D. What Forms of Union Security Does the Present Law Permit? We have observed that except for the very limited proviso for Lhe construction trades federal law today forbids the closed shop. Our

ll 48 SLatuLes at Large 1187 (1934). '.!:./ See Levinson, "Union Shop Under the Railway Labor Act," 6 Labor Law Journal 462 (1955).

- 111 - next question, Lhen, is whaL does it permit among union security arrang�­ ments? The simple answer, often heard, is thaL Taft-Hartley substituted Lhe "union shop" for Lhe closed shop. Hut there are many different forms of union security included within the term ''union shop." We shall list and briefly identify them here: 1. Union Shop -- The basic, simplest form of union shop involves an agreement by Lhe employer LhaL all workers musL belong Lo the union in order Lo keep Lheir jobs. AJthough Lhe employer is free to hire whomever he pleases, anyone he does hire may be required Lo join the union within a specified Lime (usually 30 days) in order Lo keep his job. 2. Modified Union Shop -- llere the employer agrees LhaL all presenL and fuLure members of Lhe union musL remain in the union for Lhe Lerm of Lhe collecLive-bargaining agreemenL in order Lo keep Lheir jobs. PresenL workers who are noL members of Lhe union when they come to work, and do noL volunLarily join, may keep Lheir jobs wiLhout being required Lo join. UuL Lhe employer agrees Lhal all workers who are employed after the effective date of the contract must join the union within the specified Lime (usually 30 days) or lose their jobs. 3. Ayency Shop -- Under this contract the employer and union agree that membership in Lhe union shall noL affect a worker's status. UuL if a new worker chooses, within a specified time, not to join the union he musL pay to Lhe union an amount of money equal to the union dues. This amount is regarded as a fee charged by the union for represen­ ting Lhe worker in negotiations with Lhe employer and other bargaining activities of Lhe union which benefit all the workers alike. 4. Maintenance of Membership Shop -- The contract provides that all workers who are now or who in Lhe future become members of the union must remain in Lhe union for the term of the conLracL. But workers who are not and do noL become union members voluntarily are not required to do so as a condition of keeping their jobs, nor are they required to pay fees or dues Lo the union. 5. Revocable Maintenance of Membership Shop -- The contract provides LhaL all workers who are now or who become members of the union musL remain in the union in order to keep their jobs for the term of the contract. BuL Lhe contract provides also Lhat workers are free to leave Lhe union wiLhouL losing their jobs during some specified period (usually Lhe lasL Len days of each year). 6. Preferential Hiring Shop -- A quite different approach to Lhe union security problem is reflected in the preferential hiring agree­ ment, under which Lhe employer agrees in hiring new workers to give prefer­ ence Lo union members. Thus, he may agree Lo give union members a prefer­ ence, or Lo hire nonunion applicants only when there are no qualified union members seeking work.

- 112 - 7. Checkoff Provisions -- No discussion of union security arrange­ ments would be complete without considering how these arrangements are en­ forced. How does the employer force the new worker to join the union within 30 days or begin paying dues (depending on the requirement of the particular contract)? And how does the union know whether the employer is keeping his side of the bargain? The answer lies in the various "checkoff" provisions or arrangements by which the employer takes the worker's union dues out of his pay check and pays them directly to the union. This is extremely efficient and convenient for the union. of course. and is generally easy for the worker as well. But it does impose an added burden on the employer. There are several different types of checkoff provisions. of which these are the principal ones: (a) Voluntary Irrevocable -- The worker must sign a form authorizing the employer to deduct the union dues and other fees from his pay check. Once signed, the authorization is in force for a certain period, typically one year. But it is also provided that such authoriza­ tion cannot be effective for more than one year or beyond the termination of the contract, whichever comes first. (b) Year-to-Year Renewal -- This is essentially like the voluntary irrevocable arrangement, except that the authorization continues in force at the end of the year or of the contract unless the worker takes definite action to revoke it. In other words, as long as he remains in the same bargaining unit or plant, he need not sign a new authorization every year. {c) Voluntary Revocable -- Essentially like the voluntary irrevocable arrangement except that the worker may revoke his authorization at any time for any reason. (d) Automatic -- Employer agrees automatically to deduct dues and other fees from the worker's paycheck and turn the money over to the union. (The automatic checkoff is illegal under the Taft-Hartley Act.) (e) Involuntary Irrevocable -- Contract provides that in order to get and keep his job the worker must sign a form authorizing the em­ ployer to deduct union dues and other fees from his paycheck for the duration of his employment.

8. Conclusion -- After our discussion of these various provisions which may go into a collective-bargaining agreement, two important points should be made: First, the basic union security arrangement and the checkoff pro\ision are independent variables, which together determine the strength of the union security package. For example, the union is obviously better off under a classic union shop arrangement than under a revocable mainten­ ance of membership agreement. But the union shop is stronger where checkoff is handled through the involuntary irrevocable procedure than through the voluntary revocable authorization. In fact, the effectiveness of any form of union security can be enhanced somewhat by a checkoff arrangement that is favorable to the union for those workers who are subject to checkoff.

- 113 - So i L is impossible Lo Lell how strong, or how "pro-union" a particular conLracL is unLil one knows about both the provisions on union security and Lhe Lype of auLhorizaLion for checkoff of union dues and fees. The other observation brings us Lo the debaLe proposition itself. The proposition calls for a national or federal law Lo prohibiL the reguire­ menL of union membership as a condition of employment. As we have jusL seen, Lhere are many different arrangements that might be considered "require­ menLs of union membership." Thus the affirmative Learn must decide early in Lhe game whether iL intends to ban all forms of union security (along the lines of the Railway Labor Act amendment of 1934), or only some of those we have listed in this section. After making this decision, the Affirmative should then make its position clear in its definition of the term "requirement of union membership." Most Affirmatives will probably want to do away with all the forms of union security that we have considered, for the differences may not appear very great. The policy arguments for and ayainst union security (which we will examine later in this chapter) apply more or less equally to everything from the closed shop to the revoc­ able maintenance of membership, although they obviously apply more force­ fully to some than to others.

III. The Case For Voluntary Unionism In these nexL two sections containing Lhe arguments for and against compulsory unionism, we shall assume that the Affirmative will aLLack all forms of compulsory unionism. By Lhis we mean any clause in a union conLracl which requires a worker Lo join a union in order Lo obtain or conLinue employment; Lhis includes the closed shop, union shop, maintenance of membership, preferential hiriny, or even the agency shop.

Aryumenls for voluntary unionism are as follows. In �eneral, the case may be made alony any one of three main lines. First, compulsory unionism in alJ iLs forms should be abolished in order Lo protect the basic rights of individual workers. Second, compulsory unionism places Loo much power in the hands of union leaders, power which is often exercised in ways which ignore other interesLs such as those of individ- ual workers, management, and the public. Finally, it may be argued LhaL voluntary unionism will improve unions by making leaders more responsive Lo Lhe desires of individual members; iL will lead to more democratic practices within unions. Many of the particular arguments advanced for voluntary unionism are applicable Lo more than one of these general lines of attack. A. Workers Should Not Ue Forced To Join Unions Because It Violates Their Uasic Riyhts A major argument advanced for voluntary unionism is the contention that it protects individual freedom. The right of individuals Lo associate with each other for almost any purpose is one of the basic American freedoms. The riuht of workers Lo associate in labor unions is guaranteed by law,

- 114 - and the labor movement is an effective vehicle for the exercise of their right. Nevertheless, there are troublesome exceptions to this general principle. For the individual worker, the significant right may be the right not to join or form a union. Private associations are legally protected because they are an expression of the voluntary choice of individuals. The freedom not to join a private association is equally precious and deserving of protection. The argument that all workers, willing or not, should join unions is based upon the fact that a labor organization must represent all workers within a designated bargaining unit. This is required by law and is known as exclusive representation. It might be argued that some workers may object to any union representation. This argument is developed by Dr. Philip D. Bradley.1/ All bargaining agreements are compromises, says Dr. Bradley; in making demands, the union representatives must keep uppermost in mind the interests of the majority of the union's members against the interests of those who, in the absence of the agreement, could do better for themselves. Justice is denied when the individual is deprived of the right of judging for himself the value of the benefits. Workers who feel that they do not individually benefit from the union should be free to stay out. It may be argued also that there are some types of union activity (or some unions) which individual workers should not be compelled to support. It is argued that individual workers should not be forced to support unions which are corrupt, those which support political candidates and policies with which they do not agree, unions which practice discrimination, and unions which have been expelled from either the AFL or CIO for Communist or left-wing leadership. Let's consider such cases in turn. 1. Should Workers Be Forced to Support Corrupt Unions? The most dramatic testimony that a union can be corrupt and that some have been dominated by racketeers was presented in hearings held before the McClellan Committee to which reference was made in Chapter I. The testimony heard by this committee directly involved five unions: the Teamsters, the Bakery and Confectionery Workers, the United Textile Workers, the International Union of Operating Engineers, and the Allied Industrial Workers of America.ii A number of other unions, including the building trades and barbers, were also mentioned. These unions represent a total membership of two million workers. The overall findings in the committee Reports concluded that over a period of 15 years union funds in excess

!/ Philip D. Bradley, Involuntary Participation in Unionism (Washington: American Enterprise Institute, 1956). ll See Interim Report. The Select Committee on Improper Activities in the Labor or Management Field, U.S. Senate, 85th Congress, 2d Session, Report No. 1417.

- 115 - of $10 million were either stolen, embezzled, or misused by uni9q officials for their own or their friends' and associates' financial gain.11 It has been argued further that corruption and racketeering within labor unions is an old and continuing problem and that under the American system of law enforcement, racketeers are practically immune from prosecution.�/ 2. Should A Worker Be Forced To Remain In A Union Which Supports Political Doctrines And Candidates Which May Not Be His Own?

In order to advance this argument, the Affirmative must establish that unions do engage in political activities. This task is not difficult. Organized labor makes no apologies for such activities and indeed regards them as essential to the achievement of labor's objectives.�/ Unions engage in politics in several ways. First, unions provide financial support to their chosen candidates. The Taft-Hartley Act prohibits political contri­ butions in elections, primaries, or conventions involving federal offices. Some states have adopted similar bans on union activities in state elections. This has forced the unions to operate through quasi-independent political affiliates such as the AFL-CIO Committee on Political Education--COPE. This committee collects donations from union members on a voluntary basis and maintains a separate treasury. Below the national COPE are state and local committees which interest themselves in elections at those levels, and are reported to spend a good deal more money than the national body. Obviously, in states where political contributions are not prohibited, unions may contribute direct financial support to candidates running for state and local offices. Besides political contributions, unions engage in a number of other political activities. Here we shall only mention some of these. The AFL-CIO has endorsed both Democratic presidential candidates since 1956. Unions also purchase radio and television time, and provide pamphlets and other campaign materials, thus relieving the endorsed candidate of certain political expenditures. In some cases labor has bu'il t up its own precinct organizations and has used money to pay election-day ,orkers and other workers recruited from labor unions rather than from party organiza­ tions. This is commonly referred to among union members as "walk around money." Except for the prohibitions in the Taft-Hartley Act and state laws which prohibit direct contributions, all of the other union activities mentioned here have generally been regarded as legal activities. On the other hand, there is a great deal of evidence to indicate that many rank and file union members oppose both the political candidates and programs

l/ Ibid., p. 1. �/ Russel R. Windes and Arthur N. Kruger (eds.), Championship Debating (Portland, Maine: J. Weston Walch, 1961), p. 109. �/ Reynolds, .QE_. cit., pp. 80-87.

- 116 - supported by union leaders and organizations. The Affirmative should attempt to prove that some union members oppose the political programs of their unions so strongly that they would prefer not to belong to the unions. Evidence of this is not easy to come by. One actual case where union members challenged the union's right to engage in political activity under a union shop contract involved a group of railroad workers in Georgia •.!/ 3. Should Individuals Be Forced to Join Unions Which Practice Discrimination? The issue here.is whether individuals who object to racial discrimination should be forced to support unions which practice dis­ crimination. Since its merger, the AFL-CIO has opposed discrimination within unionism. The Civil Rights Act of 1964, as described in Chapter II, also attempts to prohibit union practices involving job discrimination. Yet there are still complaints that "deeply ingrained patterns of racial discrimination" in labor unions have not been elimina­ ted.lf Complaints �nvolving union discrimination usually are directed against such practices in local unions, especially the skilled trades. The unions charged with such practices are those.in the building and c�nstruction trades, unions in the printing industry, arid the skilled machinists. In some Southern states, there are separate white and colored locals in these trades. Unions that engage in any form of dis­ crimination under certain types of compulsory union arrangements such as the closed shop--even though the closed shop is illegal under the Taft­ Hartley Act it exists, particularly in the building and construction trade� under a practice referred to as preferential hiring--it has the power to deny employment opportunity to certain groups of people. 4. Should Individuals Be Forced to Support Unions Expelled by the CIO on Charges Involving Communist Leadership or Supporting Communist Activity? In 1949-50, the CIO expelled 11 unions which were charged by the federation's executive committee with being under the influence or domination of Communists. In most instances, the CIO created rival unions, of which the International United Electrical Workers is an out­ standing example. Yet many of these expelled unions continue to exist; examples are the American Communications Association, the United Electrical Workers, and the Radio and Machine Workers of America •. As has been mentioned in Chapter II, the Taft-Hartley and the Landrum-Griffin Acts have dealt with this situation, however, the legal questions raised by those efforts

!/ Wilhelm Ingles, The Right to Work Handbook (Washington: Labor Policy Association, 1959), p. 40. ll New York Times, May 18, 1965.

- 117 - are still not settled. Regardless of legal issues, the strong emotional responses created by charges of Communist influences in unions raise issues as to whether individuals should be forced to support unions about which such charges are made. The Affirmative should attempt to show that individ­ uaJs are, in fact, compelled to join these unions and that they would not do so given the choice. Along with arguing that individuals should not be forced to join unions, one Affirmative strategy might be to question whether compulsory unionism is necessary to enable unions to grow strong. Three examples may be cited of unions which have grown strong without compulsory unionism. First, from 1934 to 1951 the railroads under the open shop were able to organize 92 percent of the railroad workers. Second, the steel workers were able to organize 92 percent of the steel industry prior to obtaining their first maintenance of membership clause. Finally, the United Automobile Workers were not able to win a union shop clause until 1957; yet they had organized 90 percent of the automobile industry by 1951. Professor Frederick Meyers concludes that "right-to-work laws" do not weaken unions.l/ He believes that "tight-to-work" proposals are of much less importance than either the union or.management has been willing to admit, and that the issue is a "symbolic" one. What is at stake is the political support and public support of management and unionism.£/ He could find only minimal effects upon the growth and bargaining power of Texas unions after 11 years with a right­ to-work law. B. Compulsory Unionism Places Too Much Power in the Hands of Union Leaders A second major argument against compulsory unionism is that it places too much power in the hands of union leaders. It has been argued that compulsory membership has a large bearing on the P,art that trade unions and their leaders can and do play in politics.�7 Indeed, with respect to labor's political influence, it might be argued that voluntarism is far and away the most important issue. Over the years, the trade union leader has exerted increasing influence in local, state, and federal politics. In the process, he has often espoused positions which suggest that although trade unionism does not espouse government ownership of the means of pro­ duction, still it supports bigger and bigger government. Such views, right or wrong, can be argued on their merits. But to the degree that unions are not free associations and depend upon compulsion, the case might stand otherwise. One may ask whether democracy can endure a situation in which

ll See Frederick Meyers, Right-to-Work in Practice (New York: Fund for the Republic, 1959). l/ Ibid., p. 45. �/ John Davenport, "Labor and the Law," Fortune (April, 1959), p. 6.

- 118 - men are compelled to join or pay money to private groups which then seek to exert political influence. Political candidates may become dependent on union support (or, for that matter, corporate support). Ultimately, government in the United States may become dominated by pressure groups such as big labor, big business, and the farm bloc, with big government as the copestone of the whole edifice.ll Even though some rank and file union members may oppose the political philosophies of many labor leaders, the dues which they contribute to unions plus a claim that union leaders speak for organized labor tends to enhance those political positions. Another serious problem arising from compulsory unionism is that it may give union officials the power to exclude people from a plant or an entire industry. Some unions may choose not to admit certain individuals or groups, such as Negroes, women, or members of other groups. In general, as has been indicated earlier, this problem appears to exist in the skilled trades rather than the larger industrial unions.

C. Voluntary Unionism Would Improve Unions As has been explained in Chapter II, the Taft-Hartley and the Landrum-Griffin Acts contain provisions which protect individual workers from arbitrary acts on the part of union leaders. Under Taft-Hartley, the union can force the employer to fire a worker only for failure to pay initiation fees or union dues. The Landrum-Griffin Act attempts to insure democratic practices within unions. Despite these legislative guarantees, however, it is argued that voluntarism would be a more effec­ tive method of insuring that unions remain responsible organizations. The threat of an exodus of members would hang ·over the leaders at all times and would act as a brake on their actions. Voluntarism would threaten the security of reckless leaders, not the union or individual members. Since union leaders could not count on compulsion to guarantee that in­ dividuals would remain union members, they will be more responsive to the will of their membership. Such internal pressure might prove more effective than external regulatory requirements. D. Are These Problems Inherent in Compulsory Unionism? In arguing these and other problems, the Affirmative should attempt to prove that the present system is incapable of solving these problems. Here we will suggest some lines of reasoning which might be followed. First, in many industries and trades, compulsory unionism has become so widespread that the element of choice is often removed from unionism. At present, various types of compulsory membe�ship clauses are included in roughly 80 percent of all labor agreements.l/ Many industries

!/ Ibid. ii New York Times, May 2, 1965.

- 119 - and trades, such as steel, automobiles, railroads, machinists, and others, are organized almost entirely under compulsory clauses. One answer to an individual who objects to compulsory membership in a particular union is to tell him to seek some other form of employment. Yet, if he has a particular skill or lives in a locality where employment opportunities exist in only a few unionized industries, then his ability to earn a living is severely restricted. The problem of political contributions and activities of labor unions presents this dilemma. A possible solution might be to restrict this act hi ty further. If this were done, labor might lose the ability to secure legislation farnrable to itself; many would argue that labor needs this mice, if for no other reason than to combat the political voice of business. It is sometimes argued that when a union is corrupt or is otherwise objectionable the Taft-Hartley Act provides a remedy in the form of decertification. Under this procedure, a majority of the member­ ship may vote a union out. The rights of the majority are protected, but a minority, even a large and determined one, is without protection. A better solution might be simply to permit individuals to resign from a corrupt union. E. Will foluntarism Solve These Problems? If individuals are allowed either not to join unions or to resign, their basic right to associate or not to associate is guaranteed. The Affirmative may admit that compulsion does not cause these evils within unions, but argue that the best solution would bi to allow individuals to resign when these evils are not corrected by other means. Besides restoring the right not to associate, other benefits can be claimed for voluntarism. It may also be argued that this will provide an additional check upon irresponsible union leadership. As long as compulsory unionism exists, union leaders know that objecting members cannot leave the union. Finally, it may be argued that voluntarism will create in the public mind a better opinion of labor unions. It is doubtful that the American public is favorable to the idea that individuals should be forced to support a corrupt labor union. Yet, in actual practice, the present law has per­ mitted this in some instances.

IV. The Case for Compulsory Unionism On this debate topic, the job of the negative team is to defend the present system, except for 14(b) in the Taft-Hartley Act which permits state "right-to-work" laws. Federal law, as has already been pointed out, allows various forms of compulsory clauses in labor contracts except for the closed shop which was outlawed by the Taft-Hartley Act. Those who defend these compulsory arrangements usually refer to these as "union security" clauses. We will proceed in this section as we did in presenting the affirmative case; Lhat is, we shall attempt to answer the same questions which were raised by the Affirmative.

- 120 - A. Is There a Serious Problem? One argument with which the ijegative must certainly deal is the charge that compulsory unionism denies the basic rights of the individual. The Negative will often begin by arguing that no basic rights are absolute. In order to protect itself, society must place some limits on freedoms including an individual's right of association. The right to associate or freedom not to associate claimed for the individual within a labor contract involves a particular type of association. Under present law, a labor organization is required to represent all persons within a bargaining unit, members and nonmembers alike. In this sense, a labor union is different from all other voluntary .associations--a person cannot refuse to join a union and, at the same time, refuse to accept the benefits. Since the union is required by law to represent all persons within a bargaining unit, supporters of. union security clauses argue that all who benefit ought to pay to support the union. In view of the fact that union security clauses require all persons within a bargaining unit to support the union, the question arises as to how many individuals in such situations actually object. Union leaders frequently point to the union shop elections which were required under the Taft-Hartley Act between 1947 and 1951. During this period, NLRB elections were required in all labor contracts con­ taining union shop clauses. Rank and file members favored union shop clauses in 97 percent of the 46,146 elections which were held and 91 percent of those voting cast their ballots for the union shop. These NLRB vote requirements were dropped in a 1951 amendment to the Taft­ Hartley Act. These elections are cited as proof that rank and file union members support union securi\y arrangements overwhelmingly. Does the union shop coerce workers into unionism against their will? Professor Lloyd Reynolds feels that this ar�ument has been over­ done.! / He argues that few seem to have any conscientious objection to unionism. Most of those who stay out of the union do so simply out of inertia or 'to avoid dues payments. The coercion involved in requiring them to join a union is mainly financial, and is no greater than that involved in levying payroll taxes upon them for social security and other purposes. You will recall that in the previous section it was argued that individuals should not be compelled to support certain unions to which they might personally object such as unions which are corrupt, are politically unpalatable, practice discrimination, or have been charged with being Communist-dominated. In dealing with these problems, the negative team will usually begin by arguing whether these problems

, !/ Reynolds, .!!.P_. cit. , p. 200.

- 121 - have been caused by compulsory unionism or some other cause; it is generally recognized that .the most· effective way to remove an evil is to deal with its causes. Second, the Negative should examine the extent of the problem. Is this problem serious enough to warrant a change? Finally, the Negative should argue inherency. Can the present system correct these problems insofar as they exist? Following the procedure which we have outlined here, let's consider each of these problems. 1. Corrupt Unions. Although the �ffirmative might argue that compulsion itself causes corruption within unions, it is often argued another way; that is, no claim is made that compulsion causes corruption, but rather that individuals should not be forced to support unions which are corrupt. The negative team should certainly point to the failure of the Affirmative to demonstrate a causal relationship between the �lleged evils and the specific problem. How serious is the problem of corruption within labor unions? The most extensive recent investigation of this problem was the hearings held by the McClellan committee. The negative team might begin here by pointing out that, of the 191 national unions in the United States, the McC1ei1an hearings dealt with alleged wrongdoings in only seven of the 191.!t Even the McClellan committee concluded !�at there was no problem of corruption in the majority of labor unions.ll There are other aspects of this problem such as the amount of money alleged to have been stolen from pension and welfare funds and the total funds administered within these programs. However, we shall leave this here and suggest further research and development. In general, however, the negative team should try to minimize the extent of the problem. The negative team will then usually turn to inherency, but we shall forego this argument until the next subsection. 2. Unions and Discrimination. The Negative will probably open its argument involving unions which discriminate_again�t certain persons or groups by questioning the existence of a causal relationship. Generally, the union can control hiring policies which discriminate against certain groups or persons only through the outlawed closed shop or perhaps preferential hiring arrangements often used by the construction and building trades. Under. other forms of union security agreements such as the union shop which is the most universal form, the union generally has nothing to do with .hiring new employees. Of course, union members may in some instances refuse to work with certain people or use other pressures upon employers, but some other method than one which abolishes a union shop agreement may provide a better solution.

1f Interim Report, .!!.P.· cit., p. 3. JJ U.S. News and World Report. (May 28, 1957).

- 122 - The negative team may deal with the extent of this problem as was suggested earlier with respect to corrupt unionsi that is, by reducing the size of the problem. Roy Wilkins, Executive-Secretary of the NAACP, admitted in a recent speech that some unions which had been charged with discrimination by his organization in the past, have mjde considerable progress toward eliminating discriminatory practices.! Having suggested this, we shall leave further development to the negative team. 3. Communist-dominated Unions. The problem of labor unions and Communist leadership is one which involves legal issues which are still before the courts. As was indicated in Chapter II, the Landrum­ Griffin Act forbids members of the Communist Party from holding offices within labor unions. Also, as was pointed out earlier in this chapter, the CIO expelled a few member unions under such charges and, at the same time, established rival unions to replace these unions. In general, it may be argued that such charges involve a small number of unions and that there is no necessary connection between union security clauses and the problem of Communist-dominated labor unions. 4. Unions and Political Activity. The problem involving unions and political activity is somewhat different from the problems which we have just discussed. First, the problem is more widespread. Union leaders freely admit their political interests and do not apologize for them. Indeed, many would argue-their necessity! Second, some people may argue that labor unions shou�d stay out of politics, but there is no necessary connection between this position and compulsory unionism. Federal and some state laws, as we have seen, do place some restrictions on union political contributions. Beyond these, most union political activities are legal. It is generally recognized that political support from organized labor can be a valuable asset to a favored candidate, yet, based upon past experiences, labor leaders have learned that they cannot deliver labor's vote as such. Despite an all-out drive by organized labor in the 1950 Ohio senatorial election, Senator Robert Taft still won re-election by a large margin. Dwight Eisenhower won the presidency twice over labor opposition. Beyond denying that political activity on the part of unions is actually evil, the negative team will probably argue whether these political problems are inherent. Again, we shall defer the inherency problem until the next subsection. B. Compulsory Unionism Places Too Much Power in the Hands of Union Leaders The argument that compulsory unionism places too much power in the hands of union leaders was advanced earlier in the previous section. It is charged that some ambitious union leaders gain certain types of

!/ New York Times, May 18, 1965.

- 123 - monopoly power over the supply of labor or the ability to coerce individ­ uals to their own ends. The negative team may begin by arguing here that practically all union security arrangements depend in the first instance upon majority support. Generally before a union can bargain for a union shop or some other arrangement, it needs the support of its membership. Additionally the union has to convince the employer to sign a union contract. Thus, from the start, it may be argued that such contracts rest upon majority approval. The Negative may argue also that, even under these arrangements, ihe minority's -rights are fully protected. The law protects his rights to criticize and form an opposition within unions.!/ If those opposed to union policies can secure en�ugh support, they can have the union decertified or even have the union security clause dropped from a labor contract. It may be argued also that the Taft-Hartley Act provides adequate protection to individual members. First, the law prohibits arrangements such as the closed shop, thus allowing the power to hire to remain with the employer. Second, the law allows unions to demand that an employer fire a worker only if he fails to pay initiation fees or dues. Thus, even though a union may expel a member for some other reason, his job is protected by law. Very few persons are expelled from unions.£/ The courts usually protect against arbitrary expulsion. In general, it may be argued that the present system provides sufficient remedies to check the exercise of arbitrary power and also to insure that leaders remain responsive to the will of their unions. C. Are These Problems Inherent? Since we have just suggested that the problem of union political activity and union security is largely not inherent, let's consider this first. In general, while federal law prohibits union contributions to candidates running for federal offices, it has been interpreted to allow other union political activities. At the present time, the most powerful labor organ on the national level is COPE which is supported by voluntary contributions. One union, the United Automobile Workers, allows individual members to request that their dues be diverted to charitable rather than political purposes. This applies to states, such as Michigan, which still allow unions to contribute directly to political candidates. A solution to the problem of political spending and union security may be to require that all political contributions be voluntary.

1./ See Chapter II on the Landrum-Griffin Act. l:.I Clyde W. Summers, "Legal Limitations on Union Discipline," Harvard Law Review (May, 1951), pp. 1093-94.

- 124 - The problem of corruption, discrimination, and communism within unions is already subject to legislation. Beyond this, the AFL-CIO has itself taken action to deal with these problems. In cases of corruption and charges of Communist domination, they have expelled the unions in question when they believed that the situations were serious enough. Until now, the only official action taken by the AFL-CIO against labor union discrimination has been an overall condemnation. The Negative might argue that existing laws on the subject and the policies of labor unions themselves offer the best solutions because they attack these problems more directly than laws which would allow some individuals to resign from labor unions.

D. Proposals to Abolish Union Security Clauses Would Create New and More Serious Problems Perhaps·the argument advanced most often by supporters is the "free rider" argument. ·we considered this argument in the previous section. Proponents of union security agreements contend that the law requires the union to represent all employees within a designated bargaining unit. In view of this requirement, it is argued that all who benefit should provide some support for these union services. Under open shop conditions, union members object to those who do not pay union dues and this creates friction. The negative team may take this a step further by arguing that union security clauses offer better prospects of industrial harmony within unionized plants and industry. These agreements enable a union to feel more secure and encourage it to cooperate with management and play a more constructive role in the operation of the enterprise. The union may inter­ pret the denial of a union shop as an indication that management does not consider the union a permanent part of the enterprise and hopes in time to get rid of it. The union is forced to devote much of its time to keeping its own fences mended and this may often involve a more aggressive poli�y toward management in order to maintain its standing among the workers. It may continually manufacture grievances to keep the workers convinced that the employer is a tricky fellow and that the union is essential for their protection. It may provide better services for its members and poor services to non members in order to emphasize the practical advantage of union membership. Employer acceptance of the union shop, it is argued, would make all this unnecessary. Freed of any necessity to stir up antagonism to an employer in order to hold membership, union leqders could afford to take more responsible stands on disputed issues.!/

1./ Sumner Slichter, Union Policies and Industrial Management (Washington, D.C.: Brookings Institution, 1941), Chapter 3.

- 125 - It has been argued that removal of union security clauses co uld cause serious harm to unions which have a high rate of labor turnover and great geographic mobility.!/ These unions exist mainly in the maritime, building, and printing trades where the turnover sometimes runs as high as 400 to 500 percent annually. Without some form of compulsory membership, it is argued that the unions in these industries might suffer the complete loss of membership within a few months or organizing problems which they might not be able to surmount. It is argued also that if voluntary unionism were effective and did result in loss of membership, this would prove costly to unions. In the first instance it would result in a loss of total revenues. Additionally, in order to prove itself to both members and nonmembers, it might have to engage in a higher level of grievance proceedings, as suggested above. These often involve legal and other costs which would increase overall union ex­ penses. Finally, many union leaders argue, and some employers �gree, that laws which forbid union security violate the right of contract • .£/ The con­ tention here is that if both the union and the employer are satisfied with union security agreements, then the law should not forbid this type of contract.

V. State Right-to-Work �aws As was indicated at the beginning of this chapter, the present proposition calls for the adoption of a national law banning union security prov1s1ons--a national right-to-work law. In order to gain a better general understanding of right-to-work laws; it may be useful to consider the ex­ perience that a number of states have had with right-to-work laws. First, we must determine how the federal law gives the states the power to adopt such laws. A. Taft�Hartley Section 14(b) and State Right-to-Work Laws One of the hottest political issues during the 1964 Presidential campaign has now become one of the hottest legislative issues in the 89th Congress--the repeal of Section 14(b) of �7e Taft-Hartley Act. Both the Democratic platform and President Johnson- have called for the repeal of that section. They urge repeal because they desire to abolish state right-to-work laws. Why is a provision of the federal statute so important

!/ Windes and Kruger (eds.), .2.E· cit., p. 120. 'jj New York Times, May 2, 1965. 3/ In his Labor Message to Congress, May 18, 1965, New York Times, May 19, r:- 1965, pp. 1 and 22.

- 126 - to state laws? Because the states would be powerless to pass any laws conflicting with the federal law on union security unless federal law elsewhere gave them that power. The doctrine of federal 0 preemption" or "supersession" of state law which we examined in Chapter II would otherwise require national uniformity with respect to union security, and would make the federal law exclusive. Thus any inconsistent state law, such as laws prohibiting forms of union security permitted by the Taft-Hartley Act, can be passed only with the consent of Congress. That consent is found in Section 14(b), which provides that "nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law." This is a technical and roundabout way of saying that when a State passes a right-to-work law of its own, federal law no longer permits labor-management contracts involving union security arrangements. What would be the effect of repealing Section 14(b)? Clearly repeal would at least prevent other states from passing right-to-work laws in the future. It is often readily assumed that by "pulling out the rug" from under t·he existing state right-to-work laws, such a repeal would automatically abolish those laws as well. But we have already learned to be a bit more cautious. This conclusion clearly follows only if the Supreme Court applies the preemption doctrine to hold that no state could have passed a right-to-work law before Section 14(b) was adopted. The fact is that there were several such state laws already oe the books before 1947. No court held them to be in conflict with federal law, even though the Wagner Act contained no Section 14(b). But the preemption doctrine has really only been developed in the last six or eight years. So today it seems quite likely that if 14(b) were repealed, no state right-to-work laws could survive. B. Possible Federal Approaches to Union Security What has already been suggested needs now to be formalized. There are four possible ways in which federal law could treat the problem of union security. We have considered three of these approaches but have yet to consider the fourth. For the sake of completeness, and to place the debate proposition in focus, we shall outline the four alternatives here:

. 1. National Union Security Provision. (Repeal of Section 14(b)). As we have seen, if Section 14(b) were to be repealed then any employer and union in any state would be free to adopt any union security device permitted by Taft-Hartley. State law could not affect that option in either direction; state law could no more permit the closed shop than it could prohibit the union shop. For the federal preemption doctrine cuts both ways; the states can neither enlarge nor restrict the forms of union security which are permitted by federal law (except,. of course, for that

- 127 - very limited category of labor relations not involving interstate commerce, to which federal law simply does not apply).

2. National Union Security Law With State Right-to-Work Option (Present Section 14(b))�. Under the existing law the federal provisions on union security apply unless a state provides otherwise. In those states which never took the invitation of Section 14(b) to pass right-to­ work laws, federal law fully applies. In non-right-to-work states an employer is not free either to contract for a closed shop (which is illegal under federal law) or to refuse to bargain with a union which seeks a union (or agency, or maintenance of membership) shop �ince federal law requires him to "bargain in good faith" for lawful objectives). Here again the federal law sets the outer ljmits in both directions.

3. National Right-to-Vbrk Law With State Union Security Option. Now we turn the coin over. What this third approach does is to reverse the thrust of the federal law but still leave it up to the states to enact laws going in the other direction. This is what Senator Barry Goldwater urged during the 1964 Presidential campaign. This sort of law would provide that any form of union security arrangement is illegal under federal law--unless the individual state or territory passes a union security law. And then of course union security agreements would be legal only to the extent they were authorized by the state law--that is, the state might permit only the agency shop, or the maintenance of membership shop, or might go all the way to permit the closed shop as well. Or perhaps federal law would say that the states could permit only certain forms of union security, such as those now permitted by Taft-Hartley, so that the closed shop would continue to be outlawed everywhere.

4. National RighL-to-Work Law. Finally there is the possibility of a national right-to-work law passed by Congress. Such a federal law would just as clearly displace any inconsistent state laws as would the naLional union security law we discussed in subsection (1) above. Thus the states would be powerless to permit any form of union security except in that small part of the labor field to which federal law does not apply anyway.

5. Conclusion: Implications for the Debater. Affirmative debaters now have the full range of alternatives from which to work. What they should consider chiefly is whether they can make a choice between the kinds of federal laws discussed here in subsections(3) and (4). There is no question that the national right-to-work law discussed in (4) meets the terms of the resolution. It seems quite likely that the statute outlined in (3) would also meet the resolution. For both would "prohibit the requirement of union membership as a condition of employment," the only difference being that the type (3) statute would enable the states to allow certain forms of union security despite the general prohibition. And the type (3) statute may have certain advantages over the type (4) law. Some of the most serious disadvantages and objec­ tions to a national right-to-work law might be avoided by a law with a state union-security option. On the other hand, the benefits and

- 128 - advantages of a national right-to-work law would be less certain to come about. In any event, affirmative teams should be familiar with these four general approaches to the union security problem, and particularly with the two ways in which the requirement of union membership as a condition of employment could be abolished.

C. Types of State Right-to-Work Laws So far we have assumed that there is a standard, uniform right­ to-work law that is found in all states having such laws. The fact is, however, that they vary considerably in complexity and particular provisions. A survey of these different approaches may assist the affirmative debaters in framing a plan for abolishing present union­ security provisions. These are the principal types: 1. Simple declaration of policy and prohibition. The simplest forms of right-to-work law are like the Florida constitutional provision adopted in 1944, to which we have already referred. These laws simply declare that the right of persons to work shall not be denied or abridged because of membership or nonmembership in a labor organization. Most of these laws also go on to prohibit collective-bargaining agreements which conflict with the stated policy. In addition, some of these laws prohibit specific practices, such as (a) "combinations" or "conspiracies" to deprive persons of employment because of nonmembership; (b) strikes or picketiny for the purpose of inducing an illegal agreement; (c) denial of employment to any person because of membership or nonmembership in a labor union; or (d) conspiracies to cause the discharge or denial of employment to an individual by inducing others to refuse to work with him because he is a nonmember. Some of these statutes also impose criminal penalties for violations. 2. More Complex Right-to-Work.Provisions. Some state right-to­ work laws do more than simply rule out union membership or nonmembership as.a condition of employment. For example, several prohibit agreements or combinations between any employer and any union to keep nonmembers from working for the employer, or designed in any way to bring about a union security arrangement. Others also forbid the requirement of "affiliation with" as well as "membership in" a labor organization as an employment condition. Other state statutes prohibit not only the requirement of union membership but also the requirement of dues payment or payment of any other fees to a labor union (thus fully covering the field covered by the federal union security provisions). 3. Regulation of Union Security Agreements Short of Prohibition. In addition to the states generally listed as right-to-work states, there are several others that have laws regulating union security more tightly than federal law but without prohibiting it altogether. Colorado and Wisconsin, for example, make the validity of a union shop agreement turn

- 129 - on approval by a larger percentage of employees in the bargaining unit than a mere majority, which is sufficient for approval under federal law. (In Colorado the required vote for a union shop agreement is three­ quarters of the employees. They must vote by secret ballot in an election conducted by the state labor commission.).!/ 4. Conclusion: Implications for the Debater. This brief survey of union security prohibitions found in state right-to-work laws may suggest the variety of tools open to the affirmative team in drafting its plan. The Affirmative may, of course, propose only what Florida does and simply have a law prohibiting the requirement of member­ ship in a labor union (or presumably the payment of dues to a labor union) as a condition of employment. But more imaginative Affirmatives might wish to consider other possible provisions, including some of those found in the state laws summarized here. Any affirmative team that is drafting a workable plan for carrying out the resolution should give some thought to the problem of enforcement provisions.

D. Interpretation and Enforcement of Right-to-Work Laws: State Courts or NLRB? Our discussion of state right-to-work laws and the difficult relations between state and federal law should conclude with the report of a 1963 decision of the United States Supreme Court. The case in­ volved the same Florida right-to-work law with which we began -the chapter. A group of workers who did not wish to join a union brought suit to test the legality of an agency shop contract which their employer had signed with a union. They claimed the agreement was in violation of the state right-to-work law. But the union replied that under the "preemption" doctrine the state courts had no power to decide this question because only the NLRB could interpret or enforce the law. The Florida courts rejected this contention and on this issue the case went to the United States Supreme Court. The Supreme Court held that the enforcement and interpretation of the Florida law was for the Florida courts and not for the NLRB. The Court carefully examined the background and purposes of Section 14(b) and concluded: In light of the wording of §14(b) and this legislative history, we conclude that Congress in 1947 did not deprive the States of any and all power to enforce their laws restricting the execution and enforcement of union-security agreements. Since it is plain that Congress left the States free to legis-

!/ For a discussion of these variations and other legal problems relating to state right-to-work laws, see Joseph R. Grodin and Duane B. Beeson, "State Right-to-Work Laws and Federal Labor Policy," 52 California Law Review 95 (1964).

- 130 - late in that field, we can only assume that it intended to leave unaffected the power to enforce those laws ••••Where Congress gives state policy that degree of overriding authority, we are reluc­ tant to conclude that it is nonethelf'S enforceable by the federal agency in Washington. .!t

The Court went on to consider the claim that this decision conflicted with the principle of the Garmon case which required federal uniformity in so many areas of labor law. Nothing in the Garmon case, however, had to do with questions under Section 14(b), the Justices now observed. It had dealt only with the issue of accommodating state and federal law in the absence of any expression of intent by Congress. Here, Congress had made its position clear by saying that the states could pass certain laws concerning union security. Thus, said the Court, Congress "chose to abandon any search for uniformity in dealing with the problems of state law barring the execution and application of agreements authorized by §14(b) and decided to suffer a medley of attitudes and philosophies on the subject." (375 U.S. at 104-05.) This, then, is an important holding on the effect of Section 14(b) and the enforcement of right-to-work laws under the Taft-Hartley Act.

E. Conclusion: Roundup of the Issues to be Debated Finally, it is time to pull together the threads that we have considered in this chapter. There are many questions that an affirmative team should decide, and a negative should be prepared to deal with, in defining terms and drafting a plan. Some of the most important of these issues are the following: 1. What forms of "requirement of union membership" are to be made illegal under the plan? Everything from the closed shop to the mainteQance of membership shop? 2. What activities are to be outlawed1 Only the actual signing of contracts embodying prohibited union security arrangements? What about strikes, picketing and other activities designed to secure such contracts? W�at about union or management pressure against non­ union workers? (Refer back to the catalogue of state law provisions on pp. 129-30.) 3. Is collective bargaining for any purposes to be expressly permitted? (Otherwise there might be a suggestion that even collective bargaining seeking voluntary unionism was outlawed. Refer back to the Florida law on p.109 to see how that state made sure that voluntary unionism would still be protected under the law.)

!/ Retail Clerks Local No. 1625 v. Schermerhorn, 375 U.S. 96, 102-03 (1963).

- 131 - 4. Who is to enforce the prov1s1ons of the new law? Will· exclusive enforcement be given to the NLRB, or are the federal courts and perhaps even the state courts to share in that power? (Remember the preemption doctrine; without some provision giving them such power, the states would have no power at all in the field.) 5. If the proposed federal right-to-work law bans all forms of union security, are the states to have any power to pass laws to permit certain union security arrangements? (That is, the reverse of the present situation in which federal law permits union security but the states may prohibit it by state law.)

PENDING BILLS TO NULLIFY STATE RIGHT-TO-WORK LAWS Bills are pending in Congress to carry out a recommendation by Presirlent Johnson that Section 14(b) of the Taft-Hartley Act be repealed so as to bar enforcement of state right-to-work laws. These bills are H.R. 77 by Rep. Thompson (N.J.) and a companion bill (S. 256).in the Senate introduced by Senator.McNamara (Mich.). Another bill by Rep. Grif­ fin (Mich.) would repeal 14 (b) but would also (a) prohibit discrimination on account of race, color or creed where employment is conditioned upon union membership or payment of moneys to a union and (b) prevent the use for political purposes of union dues and moneys paid by workers subject to compulsory union membership agreements. The House Committee on Labor has held hearings on H.R. 77 and has voted to report the bill with a recommendation that it be enacted. This proposal is under consideration by a Senate Subcommittee also and will probably be voted on in both Houses of Congress within the next few weeks. Debaters on both sides should follow congressional action on these bills very carefully. Obviously, the enactment or rejection of this bill would suggest reconsideration of both the Affirmative and Negative sides of the national right-to-work question. For example, if the Congress wipes out state right-to-work laws does the question of a national right­ to-work law become moot? On the other hand, since the Congress has changed the law on union security and other labor policies from time to time would a vote against state right-to-work laws by this particular Congress settle the issue? Assume th,at the Congress rejects the bill and thus continues state power to enforce right-to-work laws, would this be a point for a uniform national law?

- 132 - QUESTIONS FOR DISCUSSION AND REVIEW 1. What are the essential differences between voluntary and com­ pulsory unionism? How do legal provisions concerning "union security" af­ fect these differences? 2. Why was it difficult for wiions to obtain union security clauses, or compulsory union agreements, before the passage of the Wagner Act in 1935? 3. In what important respects did Taft-Hartley restrict the range of wiion security arrangements permitted under the Wagner Act? Explain precisely how and to what extent the Taft-Hartley Act outlawed the closed shop. 4. Why did certain "wider-the-table" closed shop provisions persist even after the passage of the Taft-Hartley Act? What did the Lan­ drum-Griffin Act do to recognize or legitimize these arrangements? Why did Congress take this step in 1959? 5. Was the Railway Labor Act provision of 1934 concerning union security really the first national right-to-work law, as it has often been suggested? Why do you suppose this section of the statute was repealed in 1951? 6. Is the true wiion shop arrangement permitted under the Taft­ Hartley Act? Consider carefully, and look back to the material quoted from the Taft-Hartley Act in this chapter and in Chapter II. 7. Why is it important to know s.omething about checkoff provisions in judging the effectiveness of a compulsory unionism agreement? What form of checkoff would you consider most favorable from the union's point of view? Which would be most favorable from the employer's point of view? 8. What decisions must an affirmative team make with respect to the various forms of union security or compuls.ory unionism? What factors should affect this decision? 9. Why was the adoption.of Section 14(b) necessary to permit the states to pass right-to-work laws? If such a federal law was necessary, then how do you explain the fact that several states had apparently valid right­ to-work laws before 1947? 10. Could an affirmative team meet the resolution by proposing a national right-to-work law under which the states might permit employers and unions to sign contracts with union security provisions? Or must the Af­ firmative's proposal outlaw all forms of union security in all states? 11. What lessons for the debater can be found in the experience of the 19 states that now have right-to-work laws? If you want further informa­ tion on the experience of these states, where would you look?

- 133 - BIBLIOGRAPHY A. BOOKS AND PAMPHLETS American Federation of Labor and Congress of Industrial Organizations. Facts vs. Propaganda. Washington, 1957. Union Security. Washington, 1958.

The Case for the Union Shop. Washington, 195$, (Publication No. 11).

Union Shop and Public Welfare. Washington, 1958. (Publication No. 23).

Right to Work States Labor Standards Are Lower. Washington, 1963.. (Publication No. 71 - Rev. 1963). Bradley, Philip D. Involuntary Participation in Unionism. Washington: American Enterprise Institute, 1956. Chamber of Commerce of the United States. Background for Decision on Voluntary Union Membership. Washington, 1957. Case for Voluntary Unionism. Washington·, 1964. Right to Work. Washington, 1959. Seven Great Americans and Right to Work. Washington, 1964. Why Distinguished Educators Favor Voluntary Unionism. Washington, 1962. Why Journalists Favor Voluntary Unionism. Washington, 1963. Congress of Industrial Organizations. The Case Against Right-to-Work Laws. Washington, 1954. Dempsey, Joseph R. The Operation of the Right to Work Laws. Milwaukee: Marquette University Press, 1961. Franks, Maurice R. What's Wrong With Our Labor Unions? Indianapolis: Bobbs-Merrill Company, 1963. Gibson, J.C. The Legal and Moral Basis of Right to Work Laws. Washington: National Right To Work Committee, 1955. Harrison, William T. The Truth About Right-to-Work Laws. Washington: National Right To Work Committee, 1959.

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International Association of Machinists. Right-to-Work Laws. Washington) 1955. Kaufman, Jacob Joseph. Collective Bargaining in the Railroad Industry. New York: King's Crown Press, 1954. Keller, Edward A. The Case for Right-to-Work Laws. Chicago: Heritage Foundation, 1956. Kothe, Charles A. Should a Man Have to Join a Union to Work? New York: National Association of Manufacturers, 1959. Myers, Frederic. Right-to-Work in Practice. New York: Fund for the Republic, 1959. Mid-West Debate Bureau. Debate Handbook: Should Membership in a Labor Union be Required of all Workers? Normal, Ill., 1957. National Association of Manufacturers. Twenty Questions About the Right­ to-Work. New York, 1956. National Right-to-Work Committee. America's Choice: Right to Work or Compulsory Unionism. Washington, 1962. Forced Union Membership Steals Your Freedom. Washington, 1955. Religion, Morality and Right to Work. Washington, 1955. State Right-to-Work Laws. Washington, 1958. Northrup, Herbert R. and Bloom, Gordon F. Government and Labor. Homewood, Illinois: R.D. Irwin, 1963.

Peterson, Florence. American Labor Unions. New York: Harper, 1963. Pollitt, Daniel H. Right-to-Work Law Issues. (Reprint from North Carolina Law Review, April, 1959). Phelps, Orme Wheelock. Union Security. University of California, 1954. Richberg, Donald R. Labor Union Monopoly. Chicago: Henry Regnery Company, 1957. Reder, Melvin W. Labor in a Growing Economy. New York: John Wiley & Sons, Inc., 1957.

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Ardussi, W. Philip. "Man vs. The Group," Michigan Technic (February, 1959), p. 18. "Are Right-to-Work Laws Right?", Facts Forum (May, 1956), p. 2. Baker, Leonard. ''Right .to Work: A Hard One for LBJ," Reporter (January 14, 1965), p. 23.

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Cohen, Sanford. "Union Shop Polls," Industrial and Labor Relations Review (January, 1959), p. 252. Cook, Clair M. "The Right to Work Laws," Christian Century (May 4, 1955), p. 530. Cosgrove, John E. "Iowa's Labor Law," Iowa Law Review (Fall, 1952). p. 65. Cutler, J. T. "Union Security and Right-to-Work Laws," William & Mary Law Review (1959), V. 2, No. 1, p. 16.

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Fitzpatrick, Bernard H. "Morality of Right-to-Wor.k Laws," Catholic Lawyer (April, 1956), p. 91; (October, 1956), p. 308. Germany, E. B. "Should a Labor Union Take Your Liberty," The Manion Forum (February 10, 1963), p. 3.

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"Impact of Right to Work Laws," Challenge (April, 1963), p. 24.

National Association of Manufacturers. "The Constitution and the Right

to Work," Industry'sr:• · View (May, 1956), p. 4. Niebank, C. George, Jr. "In Defense of Right-to-Work Laws," Labor Law Journal (1957), p. 459. "NLRB and Agency Shops in Right-:to-Work States," Stanford Law Review (December, 1961), p. 182. Petro, Sylvester. "Dangers in More Forced Unionism," Nation's Business (March, 1965), p. 31.

Potofsky, Jacob S. "An Invitation to Free Ride.rs," Cong�.ssional Record (February 10, 1965), p. A575. "Right-To-Work - Euphemism or Constitutional Guarantee?", Northwestern University Law Review (January-February, 1956), p. 773.

"Right-To-Work," U. S. News and World Report (December 21, 1964), p. 70.

"Right-to-Work Is a Bad Law," National Council for Industrial Peace, (1961).

"Right-to-Work Laws," Challenge (February, 1956), p. 30. "Right-to-Work Laws," Labor Law Journal (August, 1958), p. 566. "Right-to-Work Laws," Fortune (September, 1957), p. 235.

"Right-to-Work Laws Go Local," Business Week (June 22, 1957), p. 149. Rose, George. "Legal Protection of Voluntary Union Membership," Labor Law Journal (May, 1960), p. 385.

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Koretz, Robert F., and Others. "Symposium: Union Security Under Taft­ Hartley," Syracuse Law Review (Fall, 1959), p. 37.

Kovarsky, Irving. "Union Security," Labor Law Journal (October, 1964), p. 659.

Kuhn, James W. "Right-to-Work Laws," Industrial and Labor Relations Review (July, 1961), p. 587.

"Labor and Farmers," Farm Policy Forum (Spring, 1958), p. 2.

"Labor's Political Punch Scores Knockout," Nation's Business (August, 1956), p. 23.

Lambeth, Harry J. "Labor Law: A New Line of Decisions?", American Bar Association Journal (June, 1959), p. 573.

Leader, George M. "Unions Must Be Secure," American Federationist (May, 1957), p. 8.

Lefkoe, M. R. "Compulsory Unionism," Barron's (March 8, 1965), p. 8.

Mayer, Erwin S. "Union Security and Taft-Hartley Act," Duke Law Journal (Autumn, 1961), p. 505. Maxwell, James A. "Right to Work Along the Wabash," Reporter (October 30, 1958), p. 17.

McClain, J. A., Jr. "New Judicial Concepts: Right to Work-Union Membership," Labor Law Journal (March, 1957), p. 158.

"The Union Shop Amendment," American Bar Association Journal (August, 1956), p. 723.

Mcintyre, William R. "Right-to-Work Laws," Washington Editorial Research Reports (November, 1957).

Meyers, Frederic. "Effects of Right-to-Work Laws," Industrial and Labor Relations Review (October, 1955), p. 77.

Miller, Glenn W. "The Right-to-Work Debate," Current Economic Comment (February, 1957), p. 37. Miller, Glenn W. and Ware, Stephen B. "Organized Labor in the Political Process," Labor History (Winter, 1963), p. 51.

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"The Indiana Right to Work Law," Industrial and Labor Re­ lations Review (July, 1958), p. 506. "Workers Attack Unions' Political Power," Nation's Business (June, 1960), p. 14. Youngdahl, James E. "Thirteen Years of Right-to-Work in Arkansas," Ar'Kansas Law Review (Fall, 1960), p. 289.

C. CITATIONS TO MATERIAL ON RIGHT-TO-WORK ISSUE IN CONGRESSIONAL RECORD 1962-64 Vol. 108, 1962 Goldwater, Barry. Protection of rank-and-file union members from abuses by union leaders (March 8), pp. 3639-40. Landrum, Phil Why distinguished educators favor voluntary unionism (October 1), pp.. 21598-21600. Metcalf, Lee. Right-to-work laws and misinterpretation of Encyclical of Pope John (March 28), pp. 5211-13. Vol. 109, 1963 Alger, Bruce. American Workers Must not be forced to pay for privilege of holding a job (June 10), pp. 10656-57. Bennett, Wallace F. Right-to-work laws (December 16), pp. 24672-73. Curtis, Carl. State right-to-work laws (December 10), pp. 24009-10. Dent, John H. U. S. Chamber of Commerce: Right-to-Work Committee (September 17), pp. 17330-31. Goldwater, Barry. Statement in favor of right-to-work laws and against repeal of Section 14(b) of the National Labor Relations Act (June 10), pp, 10476-86.

Madden, Ray J. Phony right-to-work poll (September 12), pp. 16910-12.

- 142 - Schub, Bernard. "Right-to-Work," American Federationist (January, 1960), p. 15. "Should It Be Illegal to Require Union Membership," Congressional Digest (October, 1957). Skinner, Gordon S. "Legal Background of Right to Work Dispute," Labor Law Journal (June, 1958), p. 411 Snyder, John I. "Good For Business," Washington, AFL-CIO Industrial Union Department (1958), Publication No. 22. "State Right-To-Work Laws," Management Record (July, 1955), p. 271. Summers, Clyde W. "Freedom of Association," University of Pennsylvania Law Review (March, 1964), p. 647. Theodore, Rose. "Union Security Provisions," Monthly Labor Review (December, 1959), p. 1348. Toner, Jerome L. "Right-to-Work Laws," Labor Law Journal (March, 1957), p. 193. Town Meeting of the Air. "Are Right-to-Work Laws in the Public Interest?", Town Hall, Inc., New York (February 19, 1956), Bulletin No. 43. Townsend, Ed. "Union Shop Debate," Christian Science Monitor (January 5, 1963), p. 9. Tuck, William M. "Compulsory Unionism, Right to Work and James Hoffa," Congressional Record (July 25, 1961), p. A5672. United Automobile Workers. "The Right to Belong," UAW-CIO Ammunition (May, 1955), p. 13. "U.S. Congress Hearings on S. Res. 3295 - Amendment of Railway Labor Act to Provide Union Membership" (1950). Wecksler, A. N. "Should a Man Have to Join A Union to Work?", Mill & Factory (April, 1956), p. 77. "Where Unions Have Hit a Roadblock," U. S. News and World Report (February 11, 1963), p. 88. White, W. L. "The Right to Work," Reader's Digest (August, 1958), p. 32. White, Lee. "Right of Unions to Exist," IUD Agenda (March, 1965), p. 25. "Why Section 14 (b) Should be Retained," Human Events (February 6, 1955), p. 8.

- 141 - Muskie, Edmund S. Right to work laws (May 8), pp. 7974-75. Sickels, Carlton R. Repeal of Section 14 (b) of the National Labor Relations Act (March 24), pp. 6902-03. Williams, Harrison A., Jr. Right-to-work laws and the repeal of Section 14 (b) of the National Labor Relations Act (April 26), pp. 7205-08. Right-to-work law - m�ievous myth? (May 15), pp. 8660-63. Vol. 110, 1964 Roosevelt, James. So-called right-to-work laws (April 28), p. 9045. Ryan, William F. Repeal Section 14 (b) of the Taft-Hartley Act (Octobe; 2), pp. 22935-36.

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