Government Empowers Unions
NOVEMBER 01, 1980 by CLARENCE B. CARSON
Dr. Carson has written and taught extensively, specializing in American intellectual history. He is a frequent contributor to The Freeman.
During the years 1932-1935 Congress passed acts which had the effect of empowering labor unions. The tendency of these acts was not only to authorize labor unions to organize and engage in collective bargaining but also to enable them in considerable measure to prevail. Thereafter, union powers were further augmented by court decisions and by rulings of the National Labor Relations Board. Many welfare pro grams, too, contribute to the empowerment of unions by providing aid to those unable to find employment because of government and union policies and practices.
It is generally understood that from 1932 onward the United States government set on a course of encouraging unionization. It is not so generally understood that it was done by empowering unions. Much of the burden of this article, then, will be to submit the evidence that government empowered unions by restraining itself in applying laws of general applicability to unions, used its powers in support of unions, and permitted unions to use coercion in pursuit of their own ends. That, in large, is how they were empowered.
But there is more involved here than proving that unions have been empowered. It entails a fundamental departure from the principles of good government. And when that has been grasped it is much easier to see the empowerment. Before reviewing the evidence for empowerment, then, we will examine the departure from principle that is entailed.
The principle violated by the empowerment of labor unions lies in the bowels of the law. The principle is that government must have a monopoly of the use of force within its jurisdiction. The justification for the monopoly is to provide a common justice for all within its jurisdiction. Indeed, the provision of justice is the very justification of government.
Remedy at Law
There is another legal principle which is essential to buttressing government’s claim. It is usually stated in this way: For every injury there is a remedy at law. That does not mean, of course, that every person who believes himself to have been injured will be satisfied with the remedy. Nor does it mean that every possible injury has been covered by legislative enactment or legal precedent. Rather, it means that an adequate legal system provides means for redressing grievances where actual injury can be shown. Otherwise, it would have to be admitted that it would be necessary to act outside the law to obtain justice. Such an admission is tantamount to abdication by government. Courts of equity provide a forum of adjudication in the United States for injuries not covered by positive law.
There is no place for coercive labor unions within our system of law. To empower them is to return labor relations to a state of nature, i.e., to a condition which would exist if there were no government. The meaning of the return to a state of nature can be clarified by reference to natural law theory, the theory which undergirds our own system of law. In a state of nature, it has been maintained, it would be both necessary and right for the individual to defend himself. That is, he could rightfully use force to right the wrongs against him and to redress his grievances. Obviously, in such circumstances every man becomes a law unto himself. The necessity for government is patent, at least to most of us. And, under government, the individual gives up the right to defend himself and redress his grievances by force except under exceptional and dire circumstances. In return for the surrender of this right, government undertakes to provide justice and to defend the individual in the exercise of his rights.
The use of force is what makes the difference. Anyone who is injured has a primary interest, of course, in seeing to it that matters are made right. He may go in person to any one who he believes has wronged him and make request for settlement. Or, he may appoint others to represent him in seeking amends. The person who is accused with wrongdoing may treat with him or not, as it pleases him, and may enter into discussions with those appointed to represent him, if, as, and when he will. But the aggrieved party may not force himself upon those who have supposedly injured him, nor may he resort to coercion to attain retribution. At the point where force is to be used, government must do it. Otherwise, there is a return to a state of nature—and might, not right, will rule. What is true for individuals is equally true for all associations and organizations which are private in character.
These are fundamental precepts of our law. There are formidable difficulties in the way of unions fitting within them. One such difficulty is on the question of injury. What unions have sought to achieve mainly—higher wages, shorter hours, and better working conditions—are matters about which, if there were legal remedies, unions would be largely superfluous. In short, if the injuries were demonstrable, and there were legal reme dies, as in theory there must be, the only function of a union would be as a legal aid society. In fact, the remedies which unions seek are not actionable, and unions do not wish them to be.
Redress of Grievances by Direct Action
The other great difficulty for unions is that they seek to redress their own grievances by direct action. More pointedly, they use coercion in seeking to attain their ends. Labor unions have had a violent history. They have used intimidation frequently in getting members. They have used force to keep people from work when they were on strike. They seek to punish employers who do not yield to their demands by cutting off their labor supply. Moreover, they have used the boycott on many occasions to deny market access to nonunion produced goods. They mass numbers, concert their action, and use collective action to compel negotiation and acceptance of their demands by unwilling employers.
The empowerment of unions, then, is, in effect, the granting of the power by government to unions to redress their own grievances. It sanctions the private use of coercion to attain “justice.” It returns the union side of labor relations to a state of nature.
The United States government did not go about empowering unions directly. It could have been done, theoretically at least, by granting them jurisdiction and conferring governmental powers upon them. For example, they could have been incorporated, as cities are by states, and granted the status of governments in labor disputes. Except, labor union leaders would not have wanted that, and the legality of it would have been subject to all sorts of challenges. Instead, the empowerment was achieved indirectly, by circumvention, and had the form, if not the substance, of law.
There had been some tentative steps toward giving unions special status before 1932. One of the first was the setting up of a bureau in government to deal with labor matters. In 1884, Congress created a Bureau of Labor and assigned it to the Department of Interior. It was exclusively an information gathering agency. It went through several status changes until 1913 when its head attained cabinet rank in a separate Department of Labor. The stated purpose of the department was to “foster, promote, and develop the welfare of the wage earners of the United States, to improve their working conditions, and to advance their opportunities for profitable employment . . . .” From the outset, however, it was more unionist in orientation than its purpose suggests. As a scholar of labor policy has said, “It is essentially a department for labor, organized to promote its in terests primarily as envisaged by organized labor.” The Secretary of Labor has usually been a union leader or a pro-union man (or woman).
The War Labor Board
Another step was taken when a War Labor Board was set up during World War I. It was unionist in tendency, as indicated by its position “that the right of workers to organize and bargain collectively was not to be denied or interfered with.” Union membership nearly doubled between 1915-1920. Here is a description of the role of government in that:
If we examine the figures of growth from 1917 to 1919, we shall find that the war policy of the government was by far the greatest factor, for it was the government that opened the doors to unionism in industries heretofore closed.
Although the government promotion of unionism generally was ended shortly after the war, it was continued in one area. A Railroad Labor Board was authorized by the Transportation Act of 1920. More, collective bargaining was encouraged by the Railway Labor Act of 1926. Both management and labor were to act by representatives chosen “without interference, influence, or coercion” by the other party.
However, as already noted, it was in 1932 that the United States government began its move to empower labor unions generally. The Norris-LaGuardia Anti-Injunction Act was the opening wedge. For several decades, the injunction had been increasingly used by the courts to curb union coercion. The courts had also restrained unions from attempting to induce employees to break contracts with employers in which they agreed not to join a union (called “yellow dog contracts” by unionists). Section 2 of the act declared that for the worker:
it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self- organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .
(The phrase, “right of self-organization,” crops up frequently in the labor laws passed during these years. It is a unionist euphemism for the right to join a union other than a shop or company union. It tacitly placed the government on the side of “independent” unions.)
The main body of the Norris-LaGuardia Act placed formidable obstacles in the way of court action to restrain union conduct. Section 6 provides that neither unions nor their officers are to be held responsible for acts done by individual members of a union unless it can be shown that they participated in or authorized the acts. Section 7 describes the conditions under which courts may offer injunctive relief. In order for an injunction to be granted, the court must find that “unlawful acts have been threatened and will be committed unless restrained,” though how a court may know that an act will be committed is difficult to discern. In addition to the above requirement, the court must find:
(b) That substantial and irreparable injury to complainant’s property will follow;
(c) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief;
(d) That complainant has no adequate remedy at law; and
(e) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection . . . .
The act is the fulfillment of a union lawyer’s dream. It affords opportunity for almost every delaying tactic imaginable. Provision for temporary injunctions was made, but even these were now limited by special restrictions in labor cases. They could only be issued after hearings had been held and could only remain in effect for an unusually short time. It should be noted, too, that while the act only prescribed rules for Federal courts, the Supreme Court has since ruled that the Federal government has preempted the field of labor relations. Thus, state courts are usually powerless in affording relief.
While the Norris-LaGuardia Act did not place labor unions and their members beyond the law, it did establish a legal twilight zone for them. The common law rules for injunctive relief remained in effect in other cases, but in labor disputes they were drastically modified. While the law does not state that there are now to be injuries for which there is no remedy, it places the main remedy almost beyond reach.
The next step in the empowerment of unions came with the passage of the National Industrial Recovery Act. This act was the center piece of New Deal measures which were supposed to bring about economic recovery. New Deal intellectuals who drew up most of the legislation that was hurriedly passed in 1933 believed in a collectivist solution to American problems. Thus, business and labor leaders in each major industry were to devise and agree upon industrial codes for their industry. The Agricultural Adjustment Act incorporated a similar idea for farmers. Section 7(a) of the NIRA dealt with labor unions:
Every code of fair competition, agreement, and license approved, prescribed or issued under this title shall contain the following conditions: (1) that employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; (2) that no employee and no one seeking employment shall be required as a condition of employment to join any company union or to refrain from joining, organizing, or assisting a labor organization of his own choosing; and (3) that employers shall comply with the maximum hours of labor, minimum rates of pay, and other conditions of employment, approved or prescribed by the President.
With employers hamstrung, with other interests empowered to take collective action, labor leaders had an unprecedented opportunity to get members. The scales were now weighted against shop and company unions, and labor leaders hurled themselves with alacrity into the task of organizing and taking over organizations. They even claimed to be doing the will of the government.
A circular distributed in Kentucky, for example, stated that NIRA “recommends that coal miners . . . organize in a union of their own choosing.” In many places, the organizers went further: “The President wants you to join the union.” They wanted their listeners to believe that they meant the President of the United States; if pressed, they admitted that they referred to the president of the United Mine Workers.
The mining fields were not the only scene of vigorous organizing activity. The Amalgamated Clothing Workers went on a rampage of strikes, raids, and unionizing of the unorganized. A popular tactic during this period was to call a strike at a non-union factory, set up a picket line, and demand recognition of the union. (Never mind whether the local workers wanted a union or not.) For example, in Rochester, New York, “On July 27, 1933, the Amalgamated struck the Keller-Heumann- Thompson factories for recognition. The conflict was bitter, accompanied by mass picketing, police use of tear gas, an injunction, the company’s sudden recognition of the United Garment Workers, and the intervention of General Johnson.” A labor board was set up to deal with problems that arose under Section 7(a), but it was hardly a match for the chaotic situation it confronted. “For approximately the first year it was the policy to avoid legal prosecution of violations; and even after cases were referred to the Department of Justice, there was little effective enforcement . . .” In fact, the NRA was a fiasco. It was based on the optimistic collectivist assumption that given the opportunity men would abandon the pursuit of self-interest in favor of collective efforts for the common good. They did not, of course, and the contentions aroused tended toward chaos. In any case, the Supreme Court brought the whole program to a halt in 1935.
Even before this occurred, legislation was being prepared for a more comprehensive empowerment of unions. Senator Robert Wagner was its chief architect, and the act bears his name. It is also known as the National Labor Relations Act, and it was passed in 1935. It removed what remained of employer restraint on labor union organization. It accomplished this by setting forth five unfair labor practices, all directed against employers. It declares that employers are not:
(1) To interfere with, restrain, or coerce employees in the exercise of rights guaranteed in section 7. [That is, the right to organize, bargain collectively, and engage in concerted activities.]
(2) To dominate or interfere with the formation or administration of any labor organization or contribute financial support to it . . . .
(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. Provided, that nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein . . . .
(4) To refuse to bargain collectively with the representatives of his employees . . . . 
There is no doubt that the Act was phrased in legalese. There are even some attempts to give it the kind of precision we expect in a law. For example, some of the terms are defined. Here is one instance: “The term ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” True, it is not much of a definition—a gang of bank robbers could probably qualify as a “labor organization” provided they had some disgruntled bank employees among their number—but it does have the look of being a definition and help to give the color of law to the whole.
But the National Labor Relations Act is more of an intent than a law. It is an intent to empower labor unions to attain their ends. The actual rule making (law making?) was vested in the National Labor Relations Board, established by the Act. Regular court proceedings were all but averted by having the hearings held and the facts established before the NLRB. The courts could then enforce the decisions of the NLRB or overturn them when they came before them on appeal.
The justification of the National Labor Relations Act can be summarized this way. Congress is empowered to make laws regulating commerce. Labor disputes often lead to disruptions in commerce. The cause of these is that employers have been recalcitrant in reaching agreements with their employees through collective bargaining. How it is all supposed to work is stated this way in the Act:
Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.
Industrial harmony, then, was supposed to be the fruit of the Act.
The most crucial point about the Act is this. It does not bring labor unions under the law. The theoretical justification assumes that employers are solely responsible for the troubles that take place in labor disputes. Therefore, they alone need to be restrained by law. Not a single specific restraint on labor unions is contained in the Act. No unfair labor practices by unions are prohibited. (That has been slightly modified in more recent legislation.) When the bill was being considered before the Senate, an amendment was presented to prohibit coercion or interference with or by any person. It was defeated by a vote of 21 to 50. In the House, there was an attempt to add an amendment to prohibit coercion from any source. It was rejected.
Labor unions were not empowered directly to use coercion by the National Labor Relations Act. What it did do—and this is the crux of the matter of empowerment—was to enable unions to receive the fruits of coercion. Specifically, the NLRB was empowered to certify unions to negotiate with employers. When it does so, it gives legal standing to what follows and the stamp of official approval to whatever union action has preceded the certification.
Two lines of coercion are drawn together in NLRB certification decisions to enable unions to receive the fruits of coercion. One line stems directly from government. The National Labor Relations Board requires that employers recognize and bargain with the majority union and that non-union workers accept it as bargaining agent. This is coercive both on employers and any workers who may not belong to the union. One writer describes the situation this way: “Not only must an employer recognize a labor organization as the representative of all employees in the appropriate unit, but he must bargain collectively with the union for all the employees in the unit regardless of whether all are members of the union.”
The government coercion reaches its pressure peak in the requirement that the employer bargain in “good faith.” When the Wagner Bill was considered by the Senate Education and Labor Committee, Senator Walsh denied there was to be any compulsion in the bargaining process. He said:
Let me emphasize again: When the employees have chosen their organization, when they have selected their representatives, all the bill proposes to do is to escort them to the door of their employer and say, “Here they are, the legal representatives of your employ ees.” What happens behind those doors is not inquired into and the bill does not seek to inquire into it.
Whether this was a correct description of the bill or not, it has certainly been interpreted differently by the NLRB. Here is a summary of what is required by that agency:
Employers must do more than just meet with the representatives and merely go through the motions of bargaining. To satisfy the requirement of collective bargaining, an employer must bargain in “good faith.” In defining the term, the Board held that an employer to bargain in good faith “must work toward a solution, satisfactory to both sides, of the various proposals and other affirmative conduct.” In another case, the Board declared that “. . . the obligation of the Act is to produce more than a series of empty discussions, bargaining must mean more than mere negotiations . . .” The Board has considered counter-proposals so important an element of collective bargaining that it has found the failure to offer counterproposals to be persuasive of the fact that the employer has not bargained in good faith.
In short, an employer must make concessions or run the risk of being found guilty of an unfair labor practice. Since there are penalties for that, the employer is coerced to make offers by a government agency.
Intimidation by Unions
The other line of coercion comes from labor unions themselves. Labor unions are intimidatory by nature. Their weapon of intimidation is the use of numbers of people. Many of their tactics are aimed at frightening, cowing, and making timid any who would oppose them. The intimidation is palpable in such tactics as mass picketing; it is less dramatic in many other activities but nonetheless present. And intimidation is a mode of coercion. By ignoring the intimidatory character of concerted action, indeed, by approving the collective approach, and by according to unions the fruits of it, government empowers unions to use coercion.
That the National Labor Relations Board has played a central role in the empowerment of unions is already clear, but a little explanation is in order. There are two main reasons why the NLRB has advanced unionism. One is that many members of the Board have been pro-union. For example, one student of the subject notes that all the early appointees “were active protagonists of organized labor.” The other is that the laws under which it operated were heavily biased in favor of unions.
The courts, too, contributed significantly to the empowerment of unions. Sylvester Petro, writing in the late 1950s, provided this summary of the Supreme Court’s role:
During the past twenty years—the period coinciding with the tremendous growth of trade unions in numbers, power, and corruption—the Supreme Court of the United States has provided a succession of privileges for aggressive, coercive union action. This succes sion began with a sharply contested series of decisions, releasing unions from the controls of the anti-trust laws. It continued with the Court’s identification of a coercive economic weapon—picketing—with the freedom of speech which the Constitution protects. And today the Court provides a practical privilege for monopolistic trade-union practices by holding that no injunctive relief may be granted by state courts to employers and employees injured by those practices.
The courts, then, completed the pattern of excluding unions from the application of laws of general force.
In sum, Congress, the NLRB, and the courts empowered unions in the 1930s. They did so by placing much of union activity beyond the reach of court relief, by placing government behind the union effort, and by enabling unions to reap the fruits of coercive activity. This was usually done with the blessing and often under the direction of the executive branch.
Programs to Relieve the Consequences of Unionization
There is another facet of government empowerment of unions that needs at least to be mentioned. It is government programs which facilitate unionization by relieving and diverting some of the worst consequences of unionization. The worst economic impact of unionization is unemployment. Of course, unions are not the only cause of unemployment, but the thrust of their effort is to exclude from the work force all who cannot be employed at inflated wages. So far as they succeed, they raise prices to the consumer and reduce the number who can be employed—cause unemployment. The antipathy of unions for many workers and the population generally would be transparent if many of their effects were not at least partially concealed and laid to other causes.
Government has come to the aid of unions, then, by a whole complex of programs, such as, unemployment insurance, wages and hours legislation generally, compulsory school attendance for children, subsidies for higher education, Social Security to foster early retirement (all programs to reduce the numbers of workers available), the subsidizing of consumers, and so on. Government fueled inflation long made it appear that labor unions were getting much larger gains for their members than was actually the case. These and many other programs were adjuncts to the empowerment of unions.
The empowerment of labor unions was supposed to lead to industrial peace. It did not do so. It led, instead, to turmoil, violence, the preying of the strong upon the weak, and something approaching class warfare for a time. The surge of unionism in the 1930s brought unprecedented disorder—sometimes chaos—in industrial activity. Irving Bernstein, a most thorough chronicler of labor history, said, in his book on labor in the 1930s called Turbulent Years, “The passage of NIRA was followed immediately by a strike wave . . . .” More, “In 1934 labor erupted. There were 1856 work stoppages involving 1,470,000 workers . . . . Four were social upheavals . . . .” Nor did the National Labor Relations Act alter the trend. In 1937, there were nearly 5 million workers involved in work stoppages.
Some of the most violent and disruptive strikes in American history occurred in the 1930s. Here is a description of one such outbreak:
The decision of a local to shift from one union to the other automatically touched off a strike . . . . Under these conditions the coal fields of Illinois in 1933 supplied an arena for a shooting war between the factions. From August 1, 1932 to October 1, 1934, according to an incomplete list, 313 crimes were committed. A policeman was fatally shot in Springfield; at Peabody Mine No. 7 in Christian County two persons were killed and twelve were wounded; dynamite explosions wrecked the homes of two strikers in Kincaid; a Peabody dock boss was murdered in the same town: bombings damaged the plant of the Taylorville Daily Breeze which had editorialized in favor of ending a strike; houses, cars, union halls, and relief stations were dynamited; an explosion destroyed the exhaust fan at the Peabody Capitol Mine in Springfield while 350 men were underground; the coal-hauling Chicago and Illinois Midland Railroad was bombed sixteen times.
Violence in the 1930s
The turbulence reached new highs in the later 1930s with the surge to form industrial unions by the CIO. The violence and turmoil was exacerbated by the large number of rad icals who flocked into the union movement. The situation was this:
Left-wing politicals of every shade and description . . . were active in many of these struggles. Communists, Socialists, Trotskyites, members of the Proletarian party and Revolutionary Workers League, New America supporters, Lovestonites, and even old line “wobblies” and Socialist Labor party members and syndicalists became involved, particularly in the centers of the new mass production industries.
The radicals were often trained or experienced in obstructive and destructive tactics and eager to initiate and prolong violence. Communists were especially in the forefront of the CIO organizational drive. “Various estimates have been made of the ultimate strength of the Communists within the CIO. At minimum they controlled unions containing about 25 per cent of CIO’s total membership and at maximum they wielded powerful influence in unions having another 25 per cent.”
What had happened was that labor relations reverted to a state of nature. It was, however, a highly modified state of nature. Organized labor was loosed to impose their own brand of private justice. They were enabled to use coercion to redress their own grievances. But unlike a pure state of nature, there was government. And government sided with the unions by restraining their opponents and enforcing the coercively arrived at agreements.
The situation was modified somewhat in the 1940s and 1950s. The Taft-Hartley Act set forth as unfair labor practices some union tactics, required union officials to sign an oath that they were not Communists, placed restrictions on stranger picketing and secondary boycotts, and banned the closed shop. The Landrum-Griffin Act of 1959 attempted to institute greater union responsibility toward their membership. None of these acts, however, altered in any fundamental way the fact of government empowerment of unions. Unions still operate in a twilight zone between a state of nature and civilized society.