The Hot Fight Over The Right To Work
NOVEMBER 01, 1955 by EDWARD MAHER
Mr. Maher, former editor in chief of Liberty, has also written for The Saturday Evening Post, The Reader’s Digest, The Freeman and other magazines.
In May, 1953, fourteen resolute hombres in the State of Texas remembered the Alamo and resolved to go down fighting if need be rather than surrender to overwhelming odds. The battleground was a court of justice and the force arrayed against them was a group of powerful nation-wide unions, backed by the authority of federal law. The point at issue was whether it is permissible under the Constitution of the United States to require people to join labor unions to get or keep their jobs.
This question has become hotter this year than a packed airliner waiting to be cleared for take off, and the temperature is building up steadily both nationally and in many state capitals. Eighteen of the states now have laws which forbid compulsory unionism in any form, and efforts are afoot currently to pass similar laws in over a dozen more states. Their proponents call these “right-to-work” laws; organized labor says the real objective is the “right-to-wreck” unions. Several other court cases, in addition to the one in Texas, are in the works and are expected to reach the U. S. Supreme Court before they are finally settled.
The federal Taft-Hartley Act, governing the bulk of labor-management relations, prohibits the negotiating of “closed shop” agreements between unions and employers. The Act does allow the “union shop,” under which nonmembers and new employees are required to apply for union membership within a specified time, usually 30 days. When the union shop is coupled, as it often is, with “preferential hiring,” or hiring through the union, the effect is the same as that of the closed shop. Section 14 (b) of the Taft-Hartley Act recognized the right of states to guard against such coercive unionism: “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.”
However, the Texas fourteen happen to work for the Santa Fe Railroad, and railroad employees do not come under the Taft-Hartley Act. Labor relations in that industry are governed by the Railway Labor Act which was amended in 1934 to prohibit closed shop or union shop contracts, but further amended in 1951 at the urging of the railroad brotherhoods to permit the union shop.
Armed with this amendment, and unhampered by any Section 14 (b), the brotherhoods sought union shop contracts with the nation’s railroads. They ran into trouble with the Santa Fe which is a big operator in the State of Texas. The fourteen employees mentioned above, three of them already union members, sought an injunction to prevent the carrier and the brotherhoods from negotiating and enforcing a union shop agreement. Although named as a defendant, Santa Fe sided with its employees against the unions by a cross-petition.
The suit was brought in the 108th District Court of Texas, at Amarillo, on the theory that the Texas right-to-work law governed the parties because the union shop amendment of 1951 to the Federal Railway Labor Act was unconstitutional. After an extended trial, numerous issues of fact were put to a jury for its decision. With a single exception, it found these issues in favor of the individual employees and the railroad. These findings provided the basis for the injunctive relief granted by Judge E. C. Nelson against the compulsory unionism scheme sought by the railroad nonoperating unions.
In his accompanying opinion, “not directed at unionism, but only at compulsory unionism,” the Judge stated that Congress had exceeded its constitutional authority in authorizing union shop agreements. “Whether the employees of the Santa Fe are union members or not is not a matter vital to the carrying on of commerce between the states,” he said. The Judge also said any law or agreement which abridges a person’s right to work at any ordinary vocation “effectively denies to him his liberty, the pursuit of happiness, and the means of obtaining a livelihood, which is to say, life itself . . . .
“There have been, in the past, many organizations that have tried to compel membership in them by penalizing those who did not become members. This has been true of political parties, of industrial and business organizations, and even of the Church. There was a time when if a man did not belong to the established church, he was deprived of his political rights. That time has passed. Man must be free to exercise his own choice as to whether he will or will not belong to a private organization, and to require his membership as a condition of his right to work is repugnant to American concepts of individual freedom.”
In Judge Nelson’s opinion, “the making and enforcing of a union shop agreement such as proposed by the defendants would deprive the plaintiffs and the Santa Fe of rights guaranteed under the Constitution” and would violate “essential and inherent rights of man.”
The brotherhoods appealed the decision, of course, and won a reversal in the Texas Court of Civil Appeals. The plaintiffs in turn appealed the reversal to the Texas Supreme Court where the matter rests at this writing. In due time, it is expected to come before the Supreme Court of the United States. When it reaches there, the plaintiffs will seek a decision in the basic issue of whether union shop agreements, when expressly authorized by Act of Congress, violate fundamental constitutional rights, as Judge Nelson says.
It is an issue on which people of integrity and indisputable goodwill are sharply divided. Secretary of Labor, James P. Mitchell, for example, startled the nation and incensed right-to-work advocates by appearing at the C.I.O. Convention in Los Angeles last December and announcing he was “categorically” opposed to state right-to-work laws. He urged their repeal on the ground “these laws do more harm than good . . . do not create any jobs at all . . . result in undesirable and unnecessary limitations upon the freedom of working men and women and their employers to bargain collectively . . . restrict union security and thereby undermine the basic strength of labor organizations.
“When employers and unions representing a majority of their employees agree on a union shop, they should have the right to have one,” said Mr. Mitchell.
Next day, at his press conference, President Eisenhower said that Mitchell was speaking for himself and not for the Administration. This, in turn, incensed Walter Reuther, C.I.O. chieftain, who blasted the President’s failure to back up Mitchell. He said it was “political fraud” to call Mitchell a Cabinet member as he was just “window dressing.” To such intemperate lengths does controversy on this subject lead people on both sides.
Before a good look can be had at the factors involved in the argument, it is necessary to clear away the thick layer of verbal underbrush with which it has been surrounded. Labor circles in particular are prone to discuss right-to-work laws in terms of the desirability for national treatment of labor-management relations, the proper division of authority between the federal government and the states in labor matters, the use of right-to-work laws to keep wages down and thus attract new industries, and similar aspects of the subject which are related only tangentially to the basic issue of where freedom under the Constitution begins and ends.
A more cogent union argument is that having to do with “majority rule.” Perhaps this is best expressed by Max Meyer, a labor arbitrator, in a finding handed down in 1946:
“It is our opinion that freedom to work, like all freedoms, may properly be qualified to the extent necessary for the welfare of the greatest number and we believe that, when a union represents a large majority of the employees within the bargaining unit, when it is responsible in its financial dealings with members and others, when it is democratic in its practices, and when its history is one of stability and responsibility, if the representatives of the majority of the employees request it, it is fair both to employer and to employees that the employees’ freedom to work be qualified to the extent of requiring them to belong to the union.”
That opinion, of course, is not shared by Mr. F. G. Gurley, President of the Santa Fe, who in April, 1954, addressed the Academy of Political Science as follows: “There is nothing absolute about the principle of majority rule. It is not unlimited. Under free institutions the majority may not encroach upon the fundamental liberties of the minority. The very purpose of our Constitution and of the Bill of Rights is the protection of minorities. Tyranny and oppression are as bad at the hands of a majority as at the hands of George III or a dictator heading a modern police state.”
Mr. Gurley also commented on the “free rider” argument often cited by the unions: “The theory of the free rider argument is that when an organization is protective or promotive of the interests of a class or group, every member of that class or group should be compelled to join and support the organization . . . . The non-union man in a craft represented by a union has no choice but to accept the wages, hours and working conditions negotiated by the union. His right to negotiate with the employer on these subjects has been taken away from him and vested in the union. He may strenuously object to union representation. But there is nothing he can do but accept it. The truth of the matter is that he is a forced follower, not a free rider.”
As a further argument, the unions point out that the Taft-Hartley Act requires them to represent all the workers in a bargaining unit, members and nonmembers, and therefore they should be permitted to negotiate agreements requiring all to join.
In essence, these three arguments add up to one of “democracy”-that it is “democratic” to require a minority not only to abide by the will of the majority but to join it. The opponents of compulsory unionism see it differently. They say the Constitution of the United States was fashioned to prevent just this sort of tyranny by a majority over the rights of a minority and cite the Supreme Court as their authority. In a 1949 decision upholding the constitutionality of the Nebraska and North Carolina right-to-work laws the Court said:
“There cannot be wrung from a constitutional right of workers to assemble to discuss improvement of their own working standards, a further constitutional right to drive from remunerative employment all other persons who will not or can not participate in union assemblies. The constitutional right of workers to assemble, to discuss and formulate plans for furthering their own self-interest in jobs cannot be construed as a constitutional guarantee that none shall get and hold jobs except those who will join in the assembly or will agree to abide by the assembly’s plans.”
Right-to-work law advocates contend unions have plenty of factors working to compel membership, aside from union shop agreements. They say the power to represent members and nonmembers alike as their exclusive bargaining agent is a power the law gives to no other kind of organization and enables unions to exert great pressure on nonmembers of a bargaining unit. Also operating to compel membership, they say, are pension and welfare plans, force and threats, ostracism and abuse. Violence is so widespread despite the law, one attorney with wide experience in labor matters insists, and “the ability to make life miserable in ways no law governs is so well developed that most employees in unionized industries are in far greater fear of the unions than they are of their employers.”
The fundamental purpose of all state right-to-work laws is to outlaw the denial of employment to persons on account of membership or nonmembership in a labor organization—in other words to put union membership on a purely voluntary basis. This purpose was eloquently expressed by Governor Gordon Persons of Alabama in 1953 in his message approving that state’s right-to-work law.
Pointing out that churches are the greatest organizations in the world and have done much for mankind, yet no one is compelled to join; that veterans’, farmers’ and businessmen’s organizations further the interests of all individuals in their respective categories and yet no one is required to become a member; that all Alabama teachers had benefited from the work of the Alabama Education Association without being forced to join and have dues deducted from their pay checks; and that even labor unions could affiliate with the big national labor organizations or stay out as they saw fit, the Governor said:
“Those who first settled in our great country did so because they wanted to. It has always been a tradition in America that any man could do as he pleased as long as he did not violate the laws of our land.
“In my opinion, all our labor unions will be far stronger and the members in them will have a far greater interest and respect in the organizations if membership can be shown to be desirable and they are not forced to join.”
To move now from the area of abstract argument and get down to cases, the real objection of labor leaders to right-to-work laws is that they detract from “union security,” make organization work more difficult, lessen their bargaining power and weaken their ability to discipline the workers they represent.
These objections undoubtedly are well-founded from the labor leaders’ viewpoint. If workers are made to join unions in order to get or hold their jobs, the unions will be “secure” indeed. Their incomes will be assured through the “checkoff” and their degree of control over individual workers will be absolute. Not everyone thinks this is good, including more than a few stanch union members.
Thus, Warren E. Stone, for many years Grand Chief Engineer of the Brotherhood of Locomotive Engineers, is on record as follows: “I do not believe in forcing a man to join a union. If he wants to join, all right; but it is contrary to the principles of free government and the Constitution of the United States to try to make him join. We of the engineers work willingly side by side with other engineers every day who do not belong to our union, though they enjoy without any objection on our part the advantages we have obtained. Some of them we would not have in the union; others we cannot get.” [W. G. Merritt, The Open Shop and Industrial Liberty. New York: The League for Industrial Rights, 1922. pp. 6-7.]
That same viewpoint was stated quite recently by Mr. Charles Ged-des, president of the British Trade Union Congress: “I do not believe the trade union movement of Great Britain can live for very much longer on the basis of compulsion,” he said. “Must people belong to us or starve, whether they like our policies or not? Is that to be the future of the movement? No. I believe the trade union card is an honor to be conferred, not a badge which signifies that you have got to do something whether you like it or not. We want the right to exclude people from our union if necessary and we cannot do that on a basis of ‘belong or starve.’”
Opponents of compulsory unionism assert that it gives union leaders the power of economic life and death over individual workers and business organizations; that it enables energetic and often ruthless labor bosses to control the labor supply of an industry, not always in the interests of union members; that it enables them to perpetuate themselves in power and stifle all opposition within their ranks; and that it puts them into a position to exploit the rest of society for the benefit of themselves and their members.
Arthur Krock, the respected political analyst of The New York Times and assuredly no “lackey” of industrial management, points out that “Organized labor has legal privileges and immunities denied to all other groups in national production. These are the potentials of an industrial monopoly and a political pressure mass that could dominate the American system.
“Through protective statutes, friendly judicial decisions and the favoritism of political administrators organized labor has been granted special rights in the United States. And the Taft-Hartley Act has left uncurbed the two principal ones. The first is general immunity from the antitrust laws for actions which would be illegal if performed by employers. The second, specifically, is freedom to bargain on a nation-wide basis and to strike, if desired, a nation-wide industry vital to the general welfare.”
When, in addition, the way is clear—as it still is in 30 of the 48 states, including most of the highly industrialized ones—to blanket thousands of individuals under the union banner and union control by the mere flick of a pen in bargaining with employers who have no choice but to accept the union shop or see the gains and resources accumulated over the years dissipated by a strike, the power and political potential cited by Mr. Krock become alarming.
Labor leaders and their supporters in the academic, religious, and political worlds insist there is no reason for alarm. To many of the latter, unionism is a “sacred cow” and can do no wrong. People who always are ready to make the welkin ring at the slightest suspicion individual or civil rights are being encroached on by congressional committees or government officials defend and absolve unions no matter what they do. They contend organized labor needs its power and privileges to continue its work of improving wages and working conditions, stimulating social progress and bringing about a more viable economy and a better-organized industrial society. They are sublimely sure such power always is used with wisdom and restraint.
One of the last to dispute this would be George Meany, president of the A.F.L. Speaking recently before the executive board of the United Steelworkers-C.I.O., he said:
“We are banded together for the benefit and the welfare of the many, not of the few, and, if there is fear about too much power, how can there be too much power if the power is for good and is used only for good. You just can’t have too much power.”
Generally speaking, the attitude of union leaders and their supporters presupposes that all labor officials are saints and all employers are devils. Throughout the ample literature on the subject of compulsory unionism there is the assumption that employers always will act in a hardfisted, antisocial and anti-labor manner and that union leaders are all dedicated Sir Galahads, devoted to the public welfare and the principles of freedom, in whose hands the destiny of the nation and the liberties of its people can be safely trusted.
Emily C. Brown, professor of economics at Vassar and one of the C.I.O.’s favorite authors, expresses the degree of this trust in words which are somewhat less than reassuring: “Taft-Hartley went entirely too far in permitting unions to require discharge only for nonpayment of dues. Unions should be free under their own proper constitutional safeguards, and others provided by law, to exclude from the union and even from the jobs covered by the agreement, the spy, the disrupter, the troublemaker, in the rare case where such action can be justified.”
Anyone familiar with the way unions can modify or interpret constitutional provisions at the drop of a whim from the Big Man realizes how little challenge ever could arise to entrenched leadership under such circumstances. Even those not familiar might read into this statement.a strong argument for right-to-work laws in order to help preserve what little opportunity there is for the rank-and-file to make their wishes felt.
In any case, even accepting the assumption that union leaders generally are of the self-sacrificing, Galahad type, imbued with wisdom and sense of fairness beyond normal complement, what if only a few fail to live up to the billing? The laws by which other individuals and organizations live, and the laws which govern the conduct of business, are not made because everyone is crooked and untrustworthy but for the precisely opposite reason; they are made to protect the honest against those few who can’t be trusted. A basic principle which led to the passage of right-to-work laws in the states which have them is that even benevolent despots have no place in American society and certainly not in American economic life.
In view of the powerful group-pull of the union or nonunion employees working in the same plant, and the much-proclaimed economic advantages of membership, it may seem odd to the uninitiated that labor leaders should place so much stress on compulsion to join. No other organization in the country—economic, religious, social or political—demands any special provision of law, overriding the free choice of individuals, to aid them in increasing their rolls or adding to their “security.” Why should unions need this special privilege, particularly in view of the advantages they are supposed to offer?
In its booklet in opposition to state right-to-work laws, the C.I.O. offers an answer to this question in the words of Paul Douglas, formerly professor of economics at the University of Chicago and now Senator from Illinois:
“While there is some force to this contention (that unions are protected from discrimination under law) it would seem to be only partially true. For in the first place, the law can only sift out and deal with the most obvious cases of discriminatory discharge. There is a fine art of getting rid of men whom one dislikes and most employers and managers are rapidly becoming expert practitioners of this art. Unionists can be dropped for minor infractions of rules which would pass unnoticed if committed by an antiunionist . . .”
The Senator’s opinion obviously is based on the assumption that employers have as their main interest in life the getting rid of people who join unions, despite the law which prohibits discharge for this reason and the costly litigation, formidable ill will, and loss of production which is sure to ensue if they try it. It ignores the fact that employers have businesses to run and that good workmen are prized in any shop; that a manager would have to find devious ways to discharge upward of 50% of his people in a shop with union representation in order to get rid of the union—and his success would be only temporary at that. To spend time on such activity instead of concentrating on making and selling the product would be a sure road to bankruptcy in most instances. Senator Douglas also ignores the fact that unions are far more adept at discriminating against and putting pressure on nonmembers than employers ever can be in the opposite direction.
To insist that union security provisions are vital under such circumstances is to strain the imagination unduly. Besides, it is not borne out by the facts of union growth. More logical reasons for demanding security provisions is that they make life much easier for union leadership. Having once secured representation by a majority vote, it is much simpler to negotiate a contract which will blanket in the rest of the employees in a plant and thus avoid the missionary work of convincing them they ought to belong. The union shop coupled with preferential hiring enables the union virtually to perpetuate itself in control .of the jobs in that shop and the union officers in their jobs.
Mrs. Elinore M. Herrick, director of personnel of the New York Herald Tribune, accurately described the situation in a panel discussion before the Academy of Political Science: “Once an employer has accepted the principle of compulsory unionism as a practical matter, he is stuck with it and so are his present and future employees, despite the provision of the Taft-Hartley Act which gives the employees the right to petition for a decertification vote. I have seen a few instances of the kind of internecine warfare that such a situation develops and the destruction of production resulting from the turmoil of the fight. And there are too many examples of firms that have been forced out of business because their employees rejected a powerful union . . .”
As to the need of unions for security provisions in order to grow, some revealing statistics on the subject are those supplied by a few of the railroad brotherhoods, which were without such provisions for fourteen years. Fred G. Gurley, president of the Santa Fe, offered these figures to the Academy of Political Science, stating they came from union sources.
In 1935, the Brotherhood of Railway Clerks had about 72,000 members; by 1952 membership had grown to at least 250,000 and perhaps as high as 325,000.
The Brotherhood of Maintenance-of-Way Employees had about 33,500 members in 1935; in 1952 it had at least 158,600 and possibly as high as 171,400.
The Brotherhood of Railway Carmen grew from about 55,000 in 1935 to between 114,600 and 145,500 in 1952. According to Mr. Gurley, other railroad unions expanded in comparable fashion during the same fourteen-year period, during which the law forbade compulsory unionism.
It may just be that if union officials did not place so much emphasis on compulsion, there would be more employees joining voluntarily. Americans are a cantankerous breed and don’t like to be pushed into things, even for their own good. All this talk of the union shop, union discipline, and union control is like a red flag to many people who always have considered themselves free and want to stay that way.
Editor’s note: To Mr. Maher’s discussion of the right-to-work issue might well be added the following excerpts from an address by J. C. Gibson, vice-president and general counsel of the Santa Fe, before the Section of Labor Relations Law, American Bar Association, at Philadelphia, August 23, 1955:
Right-to-work laws do not purport to create new rights but only to protect fundamental rights from invasion through imposition of compulsory unionism as a condition of employment. They do not directly create any jobs, but by helping to keep the economy free and by keeping opportunities open, they inevitably in the long run lead to more and more chances for employment . . . .
The freedom of association springs from the liberty of the individual to order his life as he sees fit, to choose where he will work, and what, if any, church, political party, fraternity, lodge, society, league, club or other private organization he will join . . . .
The right not to join is a necessary corollary of the right to join, for without a right not to join there can be no such thing as a right to join. Freedom rests on choice, and where choice is denied freedom is destroyed as well . . . .
The first ten amendments and the Fourteenth Amendment to the federal Constitution do not apply to purely private action but instead serve only to check assertions of governmental power. But labor relations are so regulated by law today that compulsory union membership is ordinarily possible only by governmental permission, and it is usually imposed by union leaders using as a weapon the great complex of powers placed in their hands by modern labor law. To suppose that agreements for compulsory union membership made under these conditions represent purely private action is to substitute fiction for reality . . . .
Forced payments are equivalent to taxes. Taxation is a sovereign power and may be exercised by the government only, and not by a labor union or any other type of private association . . . .
It has been truly said that the benefits employees get from a union can be overestimated just as they can be underestimated. No informed person would suppose for instance that the increase of wages in this country between 1935 and 1954 came about altogether by virtue of union activity. Wages and standards of living increased markedly after 1870 even in periods where unions exerted very little influence. Surely a large part of the credit must go to scientific research, new inventions, labor saving machinery, and better managerial techniques—to mention a few of the other factors resulting in greater productivity of the goods and services we enjoy in such great abundance. If labor unions were the dominating factors in creating these benefits then we might well ask why England, France, and other European countries, where labor unions experienced earlier or more powerful development, do not exceed us in material wealth . . .
Finally, compulsory unionism presents a new version of an age-old issue—the issue of freedom versus organization, the liberty of the individual versus the power of the group. Here, as in every other instance through the centuries, an attempt is being made to justify the deprivation of individual liberty on the grounds that it is in the best interests of everyone, including those whose rights are being curtailed or taken away. But in this case, as in so many others, the reasons advanced are insufficient. They are here lacking in the weight necessary to overcome the value which our American heritage, our Declaration of Independence, our Bill of Rights, and our Constitution, placed upon the worth of the individual and the importance of allowing him the widest possible freedom of choice.
When the considerations favoring complete freedom for the individual to determine for himself without coercion whether or not to join a union are weighed against those asserted on the other side, the balance is inescapably in favor of individual rights.