Vol. 7, No.2 The University of Chicago Law School 3 Recognition- Organizational Picketing and Right-to-Work Laws By BERNARD D. MELTZER Professor of Law, The University of Chicago Law School [From a speech delivered to the Labor Committee of the Chicago Association of Commerce and Indus­ try. Reprinted, with permission, f1"01n the January, 1958, issue of the Labor Law [oumal, published by Commerce Clearing House, Chicago.] A recurring problem of policy is the reconciliation of the interests of individuals and those of groups which are favored the law because meet, or The final argument in the Hinton Competition begins. by they at least are thought to meet, important social needs. It is this problem which underlies the controversy about the two topics which I have been asked to dis­ cuss - ( 1) recognition and organizational picketing, and (2) the so-called "right-to-work" laws. Accord­ ingly, before turning to these topics, I want briefly to remind you of the general framework for reconcil­ ing group and individual interests which has heen embodied in our national labor policy. The Wagner Act, closely following the analogy of political elections, embodied the principle of free choice by the individual employee and the principle of majority rule. It also provided for the establish­ ment of election machinery for determining the em­ uncoerced ployees' preferences with respect to repre­ sentation. The Taft-Hartley Act, without disturbing those provisions, made it plain that the principle of free choice meant that the right to reject a bargaining representative was entitled to the same respect as the right to select one. The Act, like Finalists in the Hinton left to right, the team of: Taft-Hartley Competition, the Clarence J. Amstutz, [r., of Ohio, A.B., Oberlin College; Rob­ Wagner Act, entitles a union to bargaining rights ert T. Cornwell Oklahoma, Central State of AB., College; only if it has the uncoerced of a of and Robert L. Reinke of Indiana, A.B., Wabash College. support majority the employees in the unit. In a. Board-conducted elec­ tion, a majority of those voting is in general entitled to speak for the entire unit. The bargaining agent, under the majority rule prin­ ciple, has broad and exclusive authority in negotiating the terms and conditions of employment. The em­ ployer must bargain with the representative and with no one else. The interests of the individual and of smaller groups within a bargaining unit are thus sub­ ordinated to, and may be sacrificed to, the interests of the entire group, subject only to the representa­ tive's duty of fair representation of all employees, Continued on page 45 Winners of the Hinton Competition, the team of, left to right, Morton A. Brody of Maine, A. B. Bates College; Francis J. Gerlits of Chicago, Ph.B., University of Notre Dame; E. G. Crain of California, A.B., Pomona College; and John G. Satter, lr., of Iowa, A.B., University of South Dakota. Vol. 7, No.2 The University of Chicago Law School 45 political or private groups should depend on the con­ sent by a majority of those governed. There are those who would repudiate the require­ ment of majority support on the ground that a union, at least if it represents a substantial segment of an industry, is automatically entitled to the worker's alle­ giance and support. I find this argument unacceptable for several reasons: First it ignores the fact that the value of collective bargaining both to the enterprise and to the employees depends on consent, by the employees affected, to the bargaining agent's role and to the agreement he has negotiated. Majority support, although it is not sufficient, is generally nec­ essary, for such consent. For the purpose of deter­ mining the existence of such support, the "industry" is an abstraction far removed from the employee's interest, which is generally centered in the plant or the enterprise which employs him. Accordingly, the plant or the enterprise and not the industry appears in general to be the largest unit which can be appro­ priately used in determining whether the necessary majority support exists. Secondly, the use of the smallest possible unit, consistent with orderly and stable collective bargaining, will minimize the need for subordinating the preferences of large and con­ centrated minorities to the requirements of majority R. H. Maudsley rule. Minimizing the coercion of such minorities is still an important value in our society, despite the expansion of institutional arrangements which pro­ Visiting Professor mote the subordination of the interests of individuals and minorities to those of larger groups.. For these The School is pleased to announce the appointment I believe that the architects of the federal of Mr. R. H. Maudsley, of Brasenose College, Oxford, reasons, policy were wise in rejecting the notion that unions, as a Visiting Professor in 1959. like the state, are entitled to automatic Mr. Maudsley, after first class honors at Birming­ any allegiance. When we move from the statute to the real world, ham University, and six years of war service received we are confronted with familiar and controversial the B.C.L. with first class honors at Oxford University. union organizing techniques which appear inconsist­ He was then appointed a Fellow of Brasenose Col­ ent with the basic of both the Act lege, and/ has held that position continually to date. philosophy Wagner and the Act. I refer, of course, to He will be at the Law School from February, 1959, Taft-Hartley recog­ nition and to its close relative, if not its until the end of the Summer Quarter of that year. picketing transparently disguised twin, organizational picketing. An such a Meltzer- appraisal of picketing requires judgment about the underlying purpose or. purposes involved. Continued from page 3 This judgment is, in turn, complicated because such union and non-union, in the unit. (This duty, inci­ purposes may vary with the individual situation. dentally, is not easy to enforce in the absence of Nevertheless, the following generalized and familiar blatant forms of discrimination such as that based on description seems reasonably valid: race. ) Picketing is an attempt to isolate the employer from Although the statutory scheme involves a limitation his suppliers, his customers, and his employees. Al­ on the freedom of a dissenting minority, this limita­ though it involves communication, its primary signifi­ tion seems justifiable on two grounds: First, it is nec­ cance is not as argument appealing to reason but as essary for orderly collective bargaining, which has an instrument of economic pressure. The severity of important values. Secondly, the requirement that the that pressure will vary from case to case. It will de­ on the allies of the bargaining agent have the support of the uncoerced pend picketing union, the sympa­ majority makes his authority consistent with the gen­ thies of the employer's employees, the sentiments and erally accepted principle that the government of fears of his customers; the location of his premises, Vol. 7, No.2 The University of Chicago Law School 45 political or private groups should depend on the con­ sent by a majority of those governed. There are those who would repudiate the require­ ment of majority support on the ground that a union, at least if it represents a substantial segment of an industry, is automatically entitled to the worker's alle­ giance and support. I find this argument unacceptable for several reasons: First it ignores the fact that the value of collective bargaining both to the enterprise and to the employees depends on consent, by the employees affected, to the bargaining agent's role and to the agreement he has negotiated. Majority support, although it is not sufficient, is generally nec­ essary, for such consent. For the purpose of deter­ mining the existence of such support, the "industry" is an abstraction far removed from the employee's interest, which is generally centered in the plant or the enterprise which employs him. Accordingly, the plant or the enterprise and not the industry appears in general to be the largest unit which can be appro­ priately used in determining whether the necessary majority support exists. Secondly, the use of the smallest possible unit, consistent with orderly and stable collective bargaining, will minimize the need for subordinating the preferences of large and con­ centrated minorities to the requirements of majority R. H. Maudsley rule. Minimizing the coercion of such minorities is still an important value in our society, despite the expansion of institutional arrangements which pro­ Visiting Professor mote the subordination of the interests of individuals and minorities to those of larger groups.. For these The School is pleased to announce the appointment I believe that the architects of the federal of Mr. R. H. Maudsley, of Brasenose College, Oxford, reasons, policy were wise in rejecting the notion that unions, as a Visiting Professor in 1959. like the state, are entitled to automatic Mr. Maudsley, after first class honors at Birming­ any allegiance. When we move from the statute to the real world, ham University, and six years of war service received we are confronted with familiar and controversial the B.C.L. with first class honors at Oxford University. union organizing techniques which appear inconsist­ He was then appointed a Fellow of Brasenose Col­ ent with the basic of both the Act lege, and/ has held that position continually to date. philosophy Wagner and the Act. I refer, of course, to He will be at the Law School from February, 1959, Taft-Hartley recog­ nition and to its close relative, if not its until the end of the Summer Quarter of that year.