Right and Wrong in Labor Relations [Reprint 2020 ed.] 9780520346529

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RIGHT AND WRONG IN LABOR RELATIONS BY

W I L L I A M M. LEISERSON National Mediation Board Washington, D. C.

THE B A R B A R A W E I N S T O C K L E C T U R E ON T H E M O R A L S OF T R A D E DELIVERED AT THE U N I V E R S I T Y OF C A L I F O R N I A A P R I L 8, I 9 3 7

UNIVERSITY OF CALIFORNIA BERKELEY,

PRESS

CALIFORNIA

1938

U N I V E R S I T Y OF C A L I F O R N I A PRESS B E R K E L E Y , CALIFORNIA

CAMBRIDGE U N I V E R S I T Y PRESS LONDON,ENGLAND

COPYRIGHT,

I938

BY THE R E G E N T S OF T H E U N I V E R S I T Y

OF

CALIFORNIA

P R I N T E D IN T H E U N I T E D S T A T E S O F

AMERICA

THE BARBARA WEINSTOCK LECTURES ON THE MORALS OF TRADE Publications in this series, of which this is the eighteenth, contain essays by scholars and men of affairs dealing with various phases of the moral law in its bearing on business life under the new economic order, first given as lectures at the University of California on the Weinstock Foundation

CONTENTS SECTION

PAGE

1. Conscience and Labor Conditions

i

2. From the Labor Problem to Labor Relations

8

3. T h e Right to Organize and the Right to Discharge

21

4. Collective Bargaining and Minority Rights

37

5. T h e Right andWrong in Sit-down Strikes 52 6. Differences Regarding Terms of Employment 63 7. T h e Government and Labor Relations

73

RIGHT AND WRONG IN LABOR RELATIONS i. Conscience and Labor Conditions Y E A R S A G O President Wilson proclaimed that "the whole spirit of the time and the preponderant evidence of recent economic experience spoke for the eight-hour day." As a result of a message to Congress in which he thus expressed what he called the judgment of society on the issues in a major labor dispute, the Adamson Law was enacted establishing eight hours as the basic workday for train-service employees; and thus a nation-wide railroad strike was averted. But the law applied only to those employees who were directly engaged in the operation of trains, and most railroad workers continued on nine- or ten-hour schedules, as did employees in most other industries. Even those for whose benefit the legislation was enacted were not prohibited from working more than eight hours per day. The main effect of [il

TWENTY

RIGHT AND WRONG IN LABOR RELATIONS i. Conscience and Labor Conditions Y E A R S A G O President Wilson proclaimed that "the whole spirit of the time and the preponderant evidence of recent economic experience spoke for the eight-hour day." As a result of a message to Congress in which he thus expressed what he called the judgment of society on the issues in a major labor dispute, the Adamson Law was enacted establishing eight hours as the basic workday for train-service employees; and thus a nation-wide railroad strike was averted. But the law applied only to those employees who were directly engaged in the operation of trains, and most railroad workers continued on nine- or ten-hour schedules, as did employees in most other industries. Even those for whose benefit the legislation was enacted were not prohibited from working more than eight hours per day. The main effect of [il

TWENTY

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R I G H T AND WRONG

the legislation, indeed its purpose, was to give these men ten hours' pay for eight hours' work, with overtime after eight hours. It was not until 1933 and 1934, when the N R A codes were promulgated, that eight hours as a maximum workday was generally established in American industries. The steel industry did not abolish its twelve-hour day until 1923, and then it did not adopt eight hours as the standard workday, but continued to work most employees nine and ten hours. When it accepted the code provision of eight hours in 1933, it did so only on condition that the work week be forty-eight hours, whereas most industries had set forty hours as standard, and some thirty-six and thirty-five. Then came the demolition of the N R A by the United States Supreme Court, and many industries took advantage of the liberty thus restored to them to impose on their employees longer workdays and work weeks. During his administration President Wilson also convened two national industrial conferences for the purpose of promoting industrial

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peace. It was a time of labor strife like the present. He found it necessary to convene two conferences because the first one broke up on the issue of the freedom of employees to select representatives of their own choosing for purposes of collective bargaining. The employers' delegates to the conference, and many of those who had been appointed to represent the public, were not willing to concede this freedom to the employees. The Second Conference dodged this issue, and nothing came of it. That was in 1919 and '20. Yet within the last three years we have seen the right to bargain collectively through freely chosen representatives not only made the law of the land by Congressional enactment, but so far approved in conscience by the American people that even recalcitrant employers fear to deny it. Scarcely anyone now questions the right in the abstract. The unconverted find it necessary to offer employee-representation plans or company unions which they say meet the requirements of the law and are collective bargaining agencies as good as or better than the labor unions.

R I G H T AND WRONG Do developments like these indicate that the conscience of the American people has been troubled about the conditions under which working people labor and bargain? I will not attempt to answer the question. I raise it only to warn against the superficialism that resolves the problems of labor relations into problems of wrongdoing, and seeks solutions in a reign of righteousness to be established by appeals to conscience and the old moralities. It is an old and persistent myth—this idea that labor troubles would disappear if only employers would pay fair wages, provide good working conditions, and otherwise deal kindly and justly with their employees; if working people would only give an honest day's work and fairly consider the interests of the employer and the public; and if labor leaders were only honest and would refrain from stirring up class antagonism. In 1886 when a wave of strikes for the eighthour day and for recognition of labor organizations swept over the country, a prominent divine published an essay that he named " T h e

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Conflict between Capital and Labor Historically Considered." After reviewing labor struggles from ancient to modern times, he closed his essay with these words: "There has been no wrong, nor misery, nor injustice recorded here that has not sprung from ignoring the fact that the capitalist and laborer are, after all, brethren. Let us restore the Brotherhood and the problem is solved." And pretty much the same thought was expressed a few weeks ago by a clergyman in NewYork in a sermon on the Peace Movement. As reported in New York newspapers, Dr. Peale, preaching in a Fifth Avenue church, said: "There can be no peace when there is no God in the hearts of men. . . . When you drive the devil out of the human heart the stream of life will be sweet, happy and peaceful." If employers and employees, industrial managers and labor leaders who become involved in labor wars actually felt that they were godless, if they were aware of a devil in their hearts that made them disregard the rights of their brothers, then such advice might be useful. But the first lesson one learns in adjusting labor

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disputes is that the men engaged in these controversies are not godless, or possessed of the devil, or without conscience. With about the same exceptions as are to be found among our citizens generally, including ministers of the Gospel, they want to do what is right. They pursue a course that seems to them proper and best calculated to promote the interests and welfare of all concerned. If they fight and engage in industrial warfare it is because they feel there are important principles at stake which honor and self-respect require them to defend, even at great sacrifice to themselves. Surely this is not the attitude of unrighteous men. As in the case of international wars, strikes and lockouts (labor wars) are carried on in defense of things that the combatants hold dear and for which they are willing to make great sacrifices. If conscience plays any part in improving conditions of labor and the relations of employers and employees, it is not the still, small voice that makes one renounce evil and embrace righteousness, acknowledge wrongdoing and

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commit oneself to do right in the future. It is more likely to be the loud clamorous voice of an awakened social conscience proclaiming new tests of what is right andwrong.The individual morality of employers and employees is not changed or improved, but new duties, responsibilities, and attitudes are recognized as obligations which formerly were resisted as impositions and interference with individual rights and personal liberty. T h e mainspring of improved labor relations is not individual regeneration but public enlightenment. As sound knowledge of the realities of labor relationships grows, as popular myths and romanticisms (such as, that natural law determines wages and working conditions, or that the employer and employees live together like one happy family) are dispelled from the public mind, new moral tests are applied to both management and workers, and new standards of ethical conduct are developed. W h a t has been considered right changes to wrong in the public mind; and what has been wrong appears as the right. Then the new social thinking im-

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presses reluctant individuals to change their attitudes and conduct, and the changed ethics finds expression in new legal rights and prohibitions. 2. From The Labor Problem to Labor Relations T h e very use of the term "Labor Relations" to designate the problems of employers and employees tells the story of growth of knowledge andunderstanding, andhow thesecausechanges in moral obligations and legal rights. T h e terms "labor relations" and "industrial relations" are now so much a part of our everyday speech t h a t it seems as if we had always used them. Yet neither of these expressions was in common use at the beginning of the present century. I t is but a few decades since we spoke not of "labor relations," but of " t h e labor problem." Recording his observations of American life at the turn of the century, Professor Hugo Munsterberg, then recently arrived at H a r vard University from Germany, wrote: "As the Negro question is the most important problem of internal politics, so the labor question is

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presses reluctant individuals to change their attitudes and conduct, and the changed ethics finds expression in new legal rights and prohibitions. 2. From The Labor Problem to Labor Relations T h e very use of the term "Labor Relations" to designate the problems of employers and employees tells the story of growth of knowledge andunderstanding, andhow thesecausechanges in moral obligations and legal rights. T h e terms "labor relations" and "industrial relations" are now so much a part of our everyday speech t h a t it seems as if we had always used them. Yet neither of these expressions was in common use at the beginning of the present century. I t is but a few decades since we spoke not of "labor relations," but of " t h e labor problem." Recording his observations of American life at the turn of the century, Professor Hugo Munsterberg, then recently arrived at H a r vard University from Germany, wrote: "As the Negro question is the most important problem of internal politics, so the labor question is

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the most important in American economic life; and one who has watched the great strikes of recent years, the tremendous losses due to the conflicts between labor and capital, may well believe that, like the Negro question, this is a problem which is far from being solved. . . . The labor question, however, has reached a point in which a real, organic solution is no longer impossible."* This is typical of the discussions of the time. Note that it is "the labor problem" or "the labor question" that is giving concern. And it is a solution of the problem that is being sought. Employers and employees are referred to as abstract entities, Capital and Labor.The problem is the friction or conflict between them, and this is to be solved as a problem in mechanics or mathematics is solved. The search is for a solution that will at once remove the differences between Capital and Labor, abolish discontent, unrest, strikes, boycotts, and other forms of conflict. But the more the subject was studied the * The Americans (New York: Doubleday, Page & Co., 1904),

p.318.

RIGHT AND WRONG farther away the hoped-for solution seemed to be. Then, as knowledge of the problems of labor accumulated, and understanding grew, the idea of a single labor problem for which a' solution was to be found gave way to the conception of human relationships that need to be managed, controlled, adjusted. Instead of a more or less mechanical problem caused by the conflict of economic forces, we now see a host of psychological and social problems brought on by the necessity that human beings, in the form of regimented armies of managers, officials, salaried employees, and wage earners, must work and live together,with intricate obligations to one another as order givers and order takers. Employer and Employee are no longer the economists' abstractions, Capital and Labor, but personalities bound together in contractual arrangements not unlike the relationships set up by the marriage contract. The search for a solution of a theoretical Labor Problem therefore appears as futile as a search for a solution of an abstract marriage or family problem. Instead, we seek methods of securing

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mutual accommodations and adjustment of the innumerable differences that are bound to arise from the human relationship of managers and workers.The change from The Labor Problem to Labor Relations, therefore, was no mere academic refinement. And the more accurate knowledge and understanding reflected by the change has had other and more important consequences. It has led to new ethical judgments and the recognition of new responsibilities and obligations. So long as people believed that the price of labor was determined by "natural laws of supply and demand," employers could and did disclaim responsibility for conditions of work and wages which from any moral point of view were indefensible. "Business is business" was a common excuse, not because employers were indifferent to social responsibilities, but because most people believed that a natural law of survival in a competitive economic world determined what employers could do, and constrained them to act in accordance with the laws of economics, however much they might desire to

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pursue a more humane course. Indeed, the prevailing view was not only that considerations of humanity were out of place in the business world, but also that injecting such considerations into business affairs interfered with the proper working of economic law, so that it was harmful rather than helpful to the common welfare. When, however, people perceived that labor relationships were not the inexorable determinants of economic law, but largely the considered policies of industrial managers, with or without the consent of the employees, then what Woodrow Wilson called the judgment of society began to change. Ethical considerations could no longer be ignored. Praise or condemnation of labor policies and labor conditions as the public judged them to be good or bad became common. And management, as well as individual employers, found it necessary to bow to popular judgments. Thus Judge Gary was reluctant to the very end to give up the twelve-hour day in the steel industry, asserting that the employees desired

IN LABOR RELATIONS it for the greater earnings it gave them. He felt, however, that the public had made up its mind that the twelve-hour day was wrong, and the steel corporation would have to give it up. Similarly, employees in the steel towns of western Pennsylvania now feel a "new freedom," as one investigator reports it,* because steel executives fear to offend the popular conviction that employees should be free to organize. And when the steel and motor companies recently signed agreements with labor unions, the statements they issued made it plain that they still considered the Wagner National Labor Relations A c t wrong and unconstitutional, and their own former labor policies proper and preferable. T h e y were merely bowing to a nation-wide sentiment about the right to collective bargaining and freedom to join a union. Moreover, not all employers are thus constrained to act against their own judgments. M a n y are themselves convinced that the labor and living conditions of their employees are of their making and not the creation of abstract * John A. Fitch, " A Man Can Talk in Homestead," Survey Graphic, Feb., 1936.

RIGHT AND WRONG economic forces. They therefore assume full responsibility for the labor relations they maintain; and if these do not meet public approval or measure up to government standards, they at least are prepared to defend them as squaring with their own ideas of what is right and just.Thus has the riper knowledge which caused us to think about labor relations instead of an abstract labor problem also brought about a growth of individual and social responsibility on the part of those who are charged with the management of industry. I would not have it understood that economic forces play no par t whatever in labor relations conceived as human arrangements rather than as products of natural law. Whatever labor relationships we may desire to establish and maintain, they will always be conditioned by the laws of production and distribution that govern our economic activities. But in the main these laws are themselves of human creation, as the labor contract and the industrial corporation are of human creation; and they may be changed or modified to serve the objectives

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that societies and governments consider to be desirable. There is nothing inherent in economic laws that makes them necessarily work out to promote human welfare if allowed free play. They need to be controlled and directed if we want them to accomplish human purposes. The older view that labor is best served if it takes what a particular economic law would give it is well illustrated by an editorial entitled "Wage Increases" which appeared in an Eastern newspaper a few weeks ago. I quote in part: "Another series of wage increases seems in prospect on top of those granted last Autumn. Some of the recent advances have come as the result of strikes, some of amicable agreements. . . . A final question is raised by the latest wage increases. They are taking place even though there are still estimated to be 8,000,000 or 9,000,000 unemployed. Just as unsold stocks of a commodity are usually an indication that the price of that commodity is too high, so an abnormal volume of unemployment, many

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economists believe, is frequently an indication that wage rates are already too high in relation to other c o n d i t i o n s . . . . " * Here we have an economic law of prices applied to the rewards that working people should seek for their labor. It is quite possible that lower wages might result in reducing the excessive stocks of unemployed labor, and the total wages earned might even be greater at the lower rates of pay with the increased number of employees. But would it be desirable for wage earners to accept reduced wages in order that more of them should be employed, and would it be good social policy to encourage or to require them to do so ? It would if there were no better way of meeting man's need for useful work than by the methods we use in disposing of distress merchandise. If it were ordained by natural law that the customs of private merchants in pricing their products must inevitably determine the rewards of human labor, then of course there is nothing to do but to treat the unemployed as surplus stocks of perishable com* New York Times, Feb. i6,1937.

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modities. A labor merchant would dispose of unsold labor at any price that would add to his total sales, and this is apparently what the editorial writer had in mind when he concluded with a reminder that labor must not forget that its real aim is "the greatest possible total of wage payments." But if each individual wage earner is a personality and has psychological as well as economic reasons for being usefully employed, and the unemployed and their families are sovereign citizens of a democratic nation, then perhaps the laws or probabilities of private price economics are not as applicable to the problems of labor bargaining and unemployment as some economists believe. Moreover, working people and nations, as well as social scientists, have long known that there are other methods of ordering wage and labor relationships than the business economics of producers and merchandisers of commodities. And as it is becoming increasingly apparent that the labor contract is not a mere buying and selling contract, but a basis of human relationships on which the life-

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purposes and happiness, liberties and opportunities of individuals, families, and communities depend, there is a growing popular feeling that the trader's cash considerations may be as ugly and subversive elements in labor relations as they are in family relations. The demand is becoming more and more insistent that in apportioning rewards among workers, managers, and investors, and in arranging their prerogatives, liberties, duties, and responsibilities, principles and methods be used that are more in keeping with our professed ethical and social ideals. It is indeed significant that John D. Rockefeller, Jr., should have expressed more than twenty years ago the need for subordinating commercial considerations to the human and social objectives involved in labor relations. Testifying before the United States Commission on Industrial Relations in January, 1 9 1 5 , with the results before his eyes of a bitter industrial war in the Colorado coal fields, which in many respects was as brutal as the present civil war in Spain, he stated his beliefs as follows.

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" I believe that the ultimate object of all activities in a republic should be the development of the manhood of its citizens, that such manhood can be developed to the fullest degree only under conditions of freedom for the individual, and that industrial enterprises can and should be conducted in accordance with these principles. I believe that a prime consideration in the carrying on of industry should be the well-being of the men and women engaged in it, and that the soundest industrial policy is that which has constantly in mind the welfare of the employees as well as the making of profits, and which, when the necessity arises, subordinates profits to welfare. In order to live, the wage earner must sell his labor from day to day. Unless he can do this, the earnings from that day's labor are gone forever. Capital can defer its returns temporarily in the expectation of future profits, but labor can not. If, therefore, fair wages and reasonable living conditions can not otherwise be provided, dividends must be deferred or the industry abandoned. I believe that a corporation should be

R I G H T A N D WRONG deemed to consist of its stockholders, directors, officers, and employees; that the real interests of all are one, and that neither labor nor capital can permanently prosper unless the just rights of both are conserved. " I further believe that, in matters pertaining to industrial relations, the public, quite as much as the parties engaged in industry, is entitled to confidence and consideration. Industrial relations are essentially human relations, and human relations should be not less the concern of the State as a whole than of individuals engaged in industry." * When these words were spoken they ran counter to current opinion and practice; and, in view of the labor policies of the time, they could not but be regarded as mere pious expressions of good intentions. Indeed, Mr. Rockefeller himself stated that he had done nothing to carry his ideas into practice. It was not customary, he testified, for the directors of a corporation to concern themselves with labor questions. All such matters were left to the de* Final report and testimony submitted to Congress by the Commission on Industrial Relations, 1 9 1 5 , Vol. V I I I , p. 7 7 6 7 .

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termination of operating officials. Confronted with evidence that his managers did not practice what he preached, he could only plead ignorance of the labor conditions in the companies of which he was a director. But in the intervening twenty years since the United States Industrial Commission submitted its report to Congress, Mr. Rockefeller's statement has come to express the prevailing public sentiment with respect to relationships between employers and employees; and, spurred on by the experience of the depression, this sentiment has during the last five years been finding expression in new labor policies of the government and new labor practices in industry. 3. The Right to Organize and the Right to Discharge If we bear in mind, now, the ethical implications of the change from an impersonal labor problem to the human problems of labor relations, we shall be better prepared to consider what is right and what is wrong in present-day

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termination of operating officials. Confronted with evidence that his managers did not practice what he preached, he could only plead ignorance of the labor conditions in the companies of which he was a director. But in the intervening twenty years since the United States Industrial Commission submitted its report to Congress, Mr. Rockefeller's statement has come to express the prevailing public sentiment with respect to relationships between employers and employees; and, spurred on by the experience of the depression, this sentiment has during the last five years been finding expression in new labor policies of the government and new labor practices in industry. 3. The Right to Organize and the Right to Discharge If we bear in mind, now, the ethical implications of the change from an impersonal labor problem to the human problems of labor relations, we shall be better prepared to consider what is right and what is wrong in present-day

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labor relations, and to understand the popular judgments on the issues involved. Let us begin with the most fundamental of all the issues, the right of working people to organize labor unions for their mutual aid and protection. At the beginning of the nineteenth century associated action by working people in labor organizations was considered both wrong and illegal. In 1806 the members of a local society of cordwainers (shoemakers) were convicted of engaging in acriminal conspiracy when, through their organization, they tried to get better wages. The verdict of the jury was, "We find the defendants guilty of a combination to raise their w a g e s . . . T h e Court, in instructing the jury, said:"A combination of workmen to raise their wages may be considered in a two-fold point of view: one is to benefit themselves . . . the other is to injure those who do not join their society. The rule of law condemns both." It was not until about the middle of the nineteenth century that the law recognized that working people were doing nothing wrong when they organized in unions for their com-

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mon benefit. In 1842 in the since celebrated case, "Commonwealth v. Hunt," the Supreme Court of Massachusetts reversed a conviction for labor conspiracy, and in doing so explained why it was not wrong for working people to organize. Speaking through Chief Justice Shaw, the Court said: " . . . The defendants and others formed themselves into a society and agreed not to work for any person who should employ any journeyman or other person not a member of such society, after notice given him to discharge such workmen. " T h e manifest intent of the association is, to induce all those engaged in the same occupation to become a member of it. Such a purpose is not u n l a w f u l . . . . "Suppose a class of workmen, impressed with the manifold evils of intemperance, should agree with each other not to work in a shop in which ardent spirit was furnished, or not to work for an employer, who should, after notice, employ a journeyman who habitually used it. . . . It seems to us that as the object would be

R I G H T AND WRONG lawful, and the means not unlawful, such an agreement could not be pronounced criminal conspiracy."* Reasoning in this manner, the Chief Justice went on to say that organizations of working people to raise their social condition or to improve their trade were quite proper. They were to be condemned only when the power of their combination was used for purposes of oppression and injustice. And in such cases, the general purposes of the labor organization being proper, only those members or officers who were guilty of the abuses were punishable for the wrongful acts. Following this decision, other courts generally took the same view, and for approximately a hundred years now the legality of labor organizations has not been questioned. Because wage earners have thus been free from criminal prosecution for organizing labor unions, it has been commonly assumed that they enjoyed a legal right to organize. This, however, was far from the case. All that Chief Justice Shaw decided and subsequent decisions * Commonwealth v. Hunt (i 842) 4 Metcalf (Mass.) i n .

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confirmed was that nothing wrong or criminal is done when working people associate themselves in labor organizations. No right was thereby created which employers were bound to respect, or which the law would protect against attack by private persons. A legal right in one person implies an obligation or duty on the part of other persons to refrain from trespassing on that right. The right to own private property would be meaningless if other people were free to take away the property or to trespass on it. The property right has meaning only because the law steps in to enforce the owner's right. If he had to depend solely on his own strength to hold his property, we would not say that he had a legal right to it. But clear down to the recent New Deal labor legislation, working people, if they were free to organize, had to defend that freedom by their own strength, through the power of their organizations, by strikes, boycotts, and similar activities. And until last week, when the Supreme Court upheld the amendments to the Railway Labor Act adopted in 1934, we did not know

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whether a legal right to organize could, under the Constitution, be established in the United States.* During all these years down to 1933, the law recognized the equal freedom of the employers to destroy labor organizations and to deny the right of employees to join trade unions. An employer could coerce or threaten his employees to keep them from organizing. He could discharge them if they joined a union, and he could refuse to hire anyone who was a member. He could decline to deal with any union of his employees or to recognize the organization or any of its officers or agents as representatives of the employees. He was free to organize a company union of his own and force his employees to join it. It was not illegal for him to employ detectives to spy on his employees in order to find out whether they talked unionism among themselves, and he could send his spies into the labor organization to become members and officers so that they might be in * A few days after this lecture was delivered, the United States Supreme Court also upheld the constitutionality of the National Labor Relations Act.

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a better position to report union activities to him and recommend effective disciplinary action designed to stop such activities. Under such circumstances, to speak of labor's right to organize was clearly a misuse of terms. All that the employees had was a right to try to organize if they could get away with it; and whether they could or not depended on the relative economic strength of the employers' and the employees' organizations. Congress and the states did make several attempts to establish labor's freedom to organize as a legal right, so that workers would not have to strike and engage in industrial wars to establish and maintain the right. But the Supreme Court declared these efforts unconstitutional. In Adair v. United States (208 US 161) it nullified a provision of the Erdman Act by which Congress prohibited discrimination, discharge, and blacklisting of railroad employees because of membership in a labor organization. In Coppage v. Kansas (236 US 1) a state statute with similar provisions was likewise declared null and void. The employer's freedom

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to hire and to discharge employees, in the opinion of the Court, was the same as the employee's freedom to take or to quit employment. Both could act in these respects for any or no reason, and neither Congress nor the state legislatures had the authority to restrict this freedom of contract. Where the equal freedom of the employer and the employee was in conflict, the law could do nothing. Thus did the highest court in the land ordain that the determination of the right to organize must be left to the arbitrament of industrial warfare. That men will fight for freedom to associate with their fellows for common benefit is evident from the way in which working people defied the criminal conspiracy laws until these were made inapplicable to labor organizations. Business men did much the same thing, though less violently, when they fought for the privilege of incorporation against public sentiment and laws that held corporations to be unnatural monopolies, unfairly competing with natural persons. And when the law did allow wage earners to organize, but employers would not

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permit it, could anyone doubt that they would resist this further denial of their liberties? It was inevitable that strikes, boycotts, picketing, and all the other instruments of industrial warfare should be used to secure what the law granted only by the exercise of economic power. The most bitter labor struggles, therefore, have always been fought over the right of unions to exist and to function. Although bitterly opposing and effectively preventing the organization of employees in labor unions by every means available to management, including the frequent resort to court injunctions, employers have nevertheless repeatedly emphasized in public statements that only a small portion of the wage earners of the country were affiliated with organized labor, and that the majority of workers did not want to belong to unions. But the rapid spread of organization movements when the New Deal legislation announced that the right to organize would be protected, the wild scramble of industrial corporations to form new company unions to meet the legal requirements, and the

R I G H T AND WRONG widespread organization strikes that have continued from 1933 down to the present, make it plainly evident that the vast majority of employees have been unorganized not because they did not want to join labor unions, but because employers in the great mass-production industries were too strong for them, and their management methods of warring on unionism were too effective. Despite this plain evidence of recent experience, employers still can see no merit in organization strikes, though conceding there may be justification in strikes for higher wages and reduced working hours. They feel that strikes for unionism are somehow irrelevant to the wage earners' striving for improvement; and they continue, as in the past, to appeal for public support in times of strikes on the ground that wages and hours are not subjects of complaint, but only recognition of a union is being demanded; as if that were sufficient to condemn any strike. And strangely enough, such appeals have often enlisted public sympathy on the side of the employer. But, if the law

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permits employees to organize, yet refrains from protecting them against discharge or discrimination when they join unions, and makes the existence of their organizations dependent upon the exercise of their own economic strength, then obviously strikes to secure and maintain the right to organize have the same justification as strikes for better wages or hours. In recent years, perhaps as a result of the depression, this has become increasingly clear in the public mind, and organization strikes no longer meet with the popular disapproval that was common some years ago. Moreover, the new federal statutes, which attempt to guarantee unionism as a legal right, and which are being copied by many state legislatures, reflect the popular conviction that it is wrong for employers to interfere with the organization of their employees. And there is increasing public feeling that it should not be necessary for men to have to strike in order to be free from the interference of their employers, in the exercise of their right to form unions for the furtherance of their common interests.

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That the Supreme Court of the United States might change its judgment in response to this changed public opinion was foreshadowed in 1930, when, by a majority opinion, it appeared to have reversed its decisions in the Adair and the Coppage cases. In that year, Chief Justice Hughes, speaking for the majority, upheld the constitutionality of a provision in the Railway Labor Act of 1926 prohibiting interference by the carriers with the representatives chosen by employees to deal with the management.* The Act was challenged on the authority of the cases referred to; but the Court ruled that the employer's right to hire and discharge was not involved. Since employers had no constitutional right to interfere with representatives selected by the employees to bargain for them, they had no ground for complaint against a statute prohibiting such interference. This negation of the doctrine that an employer may discharge workers for any and no reason, has now been confirmed and strengthened by the unanimous * Texas & New Orleans R . R . Co. v. Brotherhood of Railway Clerks (1930) 281 U.S. 584.

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decision upholding the amended Railway Labor Act. Apparently the Court is ready to support the efforts of Congress and the legislatures to eliminate unionism as a cause of industrial warfare by restricting the right of employers to destroy labor organizations, and by providing legal protection and administrative methods for the exercise of the employees' freedom to organize. Said Justice Stone in the recent Railway Labor decision: "Experience had shown . . . that when there was no dispute as to the organizations authorized to represent the employees, and there was willingness of the employer to meet such representative for discussion of their grievances, amicable adjustment of differences had generally followed and strikes had been avoided." The records of the United States Department of Labor show that during the last four years strikes have most frequently arisen out of unionization disputes, whereas in former years wages, hours, and working conditions were the principal causes. If it were not for the

R I G H T A N D WRONG organization strikes, the country would now be enjoying comparative industrial peace. A few months ago some of the employees of the General Electric Company at Schenectady expressed a desire to deal with the company through a labor union. Others preferred the company representation plan that had been in existence for some time. The dispute was referred to the National Labor Relations Board for an investigation and an election. The company did not interfere, but said it would abide by the results of the election, and would deal with any organization certified by the Board in accordance with the Labor Relations Act. The Board took a secret ballot, a majority of the employees voted for the union, and the company is now negotiating an agreement with its officers. There was no strike, no public disturbance of any kind. The right to organize was freely exercised, the union was recognized, no one's interests were injured, peace was maintained. This is not an isolated instance. The National Labor Relations Board has settled many

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similar organization disputes by conducting elections.The Conciliation Service of the United States Department of Labor also arranges many settlements on the basis of taking a secret ballot to ascertain the wishes of the employees with respect to organization. Under the Railway Labor Act about one hundred disputes are settled in this manner every year to determine the organization through which the employees desire to function, and the carriers deal with whatever organization receives the vote of the majority. And what happened in the steel industry a few weeks ago was but a dramatic illustration of the way in which organization strikes are being prevented in many industries without the need of government intervention. Everyone expected that the United States Steel Corporation, in accordance with its long established policy, would refuse to deal with the union of steel workers which was rapidly being organized. A strike seemed inevitable. But the President of the Carnegie-Illinois Steel Company surprised and relieved the country by conferring with representatives of the Steel

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Workers' Organizing Commi ttee. Aunion agreement was signed, and peace, which at first had been despaired of, was maintained. Contrast this with the epidemic of strikes in the automobile and other mass-production industries where the issue of dealing with unions is now being fought out as a contest of rights with the new instrumentality of industrial warfare, the "sit-down." It is obvious that these strikes, too, could have been avoided if the companies had been willing to obey the National Labor Relations Act and if the employees had been willing to pursue the processes of the Act. Whose is the fault, then, that all these unionization strikes still continue? There is a measure of fault on both sides; but other questions besides the right to organize are involved in these disputes ; and before we can assay rights and wrongs it is necessary to consider collective bargaining, which is intertwined with the movement for unionization.

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4. Collective Bargaining and Minority Rights The primary purpose of union organization is collective bargaining. In the legislation which attempts to guarantee labor's legal rights, the two are usually coupled together in language like the following: "Employees shall have the right to organize and to bargain collectively through representatives of their own choosing." But while the organization of labor is easily understood, the meaning of collective bargaining is not so plain, and the laws do not define the term. If it were not for the implication that labor bargaining is primarily a selling problem, a good definition of collective bargaining would be the cooperative marketing of labor. It may be compared to the cooperative marketing of farm products. Just as farmers form organizations for pooling their products and selling them through one sales agency instead of each farmer's marketing his own goods, so laborers form unions for the purpose of selling their labor cooperatively through one organization.

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4. Collective Bargaining and Minority Rights The primary purpose of union organization is collective bargaining. In the legislation which attempts to guarantee labor's legal rights, the two are usually coupled together in language like the following: "Employees shall have the right to organize and to bargain collectively through representatives of their own choosing." But while the organization of labor is easily understood, the meaning of collective bargaining is not so plain, and the laws do not define the term. If it were not for the implication that labor bargaining is primarily a selling problem, a good definition of collective bargaining would be the cooperative marketing of labor. It may be compared to the cooperative marketing of farm products. Just as farmers form organizations for pooling their products and selling them through one sales agency instead of each farmer's marketing his own goods, so laborers form unions for the purpose of selling their labor cooperatively through one organization.

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Every laborer, besides being a worker, must also be a merchant in order to earn a living, and from a purely business point of view collective bargaining is the process by which he overcomes his ignorance of marketing, his lack of bargaining power as an individual seller, and his inefficiency as a salesman. He not only increases his bargaining power by combining with other laborers to avoid cutthroat competition, but he also gets the benefit of experienced and trained business agents and officers of the unions who are labor sales experts. But just as farmers' cooperatives do not limit their activities to marketing, and direct their efforts also to grading and improving products, conserving soil, and otherwise promoting agricultural interests, so collective bargaining is not limited to selling labor on the best terms. It is devoted also to conserving the health and skill of the wage earners, to improving the conditions under which they work, to protecting and promoting their rights and interests as human beings and ci tizens, and to raising the status of labor in industry and in the community.The

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method by which these objectives are accomplished is to superimpose on the individual contract of employment between the employer and each employee a collective agreement negotiated by a union which stipulates the terms and conditions under which the individual hiring contracts shall be made and formulates general rules and regulations for the government of labor relations. It usually includes, also, provisions for the adjustment of grievances and disputes, hearings in cases of discipline and discharge, and review of acts of the management that are considered arbitrary. Obviously such collective bargaining cannot be carried on at all unless the employer will recognize and deal with a union as the representative of his employees. For the employee the right to belong to a union can have little meaning without an agreement with the employer permitting it to function in the places of employment. To the employer, however, the unions and their officers and business agents are likely to appear as outsiders, and their activities as efforts to interfere with the manage-

R I G H T A N D WRONG ment of his business. He is inclined, therefore, to denounce union representatives as outside organizers, and to resist unionization even when this involves violating laws that require him to deal with any organization or representatives chosen by the employees for the purpose of collective bargaining. His feeling is understandable, especially in the light of the freedom of contract that he has enjoyed up to the present with the unrestricted right to hire and fire and discriminate among those who sought employment from him. We can understand also the insistence of employees for union recognition and why they are willing to strike for it, with all the sacrifices that such strikes mean for them. Each side considers that it has an important principle at stake, and it is the clashing of such conflicting principles that brings on industrial wars. Popular judgment now favors the principle of collective bargaining and this judgment has found expression in legislation which can meet the test of constitutionality if it follows the model of the Railway Labor Act.

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But there remains the question whether the employees and the government are right in restricting the freedom of employers to refuse to bargain collectively with their employees. The answer to this question is to be found not in any canon of ethics, but in the actual facts. In the past, when master workman and journeyman worked side by side, or when individual employers hired a few craftsmen who worked under their personal direction, the simple hiring contract comprised fully the terms, conditions, and implications of the relations between employer and employee. The typical arrangement was expressed in the legal concept of a contract at will. The employer could break the relationship by firing the employee, and the latter could quit at any time. But while the legal concept has persisted down to the present, the evolution of industry has built on the simple individual hiring contract a superstructure of complex corporate and social obligations, responsibilities, privileges, and duties that are so interrelated that they cannot be severed by the mere process of firing or quitting.

R I G H T A N D WRONG The employer is a person only in legal fiction. In fact he is typically a hierarchy of directors, managers, superintendents, foremen, and bosses who are intermediaries between stockholders, bondholders, and others that have invested capital in the corporate enterprise and the whole body of employees who invest their labor by supplying personal services. Industrial relationships run from the owners through the directors and managers to the workers and back again.The directors prescribe the policies that are binding on all the management, and the management formulates the rules and regulations that govern all the employees. When the individual worker is hired he is bound to accept and to be governed by all the policies, rules, and regulations of the company, though he may know little or nothing about them. Under these circumstances the individual contract does not comprise all that is included in the bargain between employer and employee, and it cannot fully express the nature of the labor relationships into which each employee enters when he is hired.

I N LABOR RELATIONS It is these circumstances that have made the organization of labor and collective bargaining necessary and inevitable. Only by a collective labor agreement covering the whole body of the employees can the full terms of the labor contract be expressed. Only by such an agreement can they know and have a voice in determining the labor policies, rules, and regulations by which they agree to be governed when they enter into a contract of employment. As popular understanding of these circumstances has grown, the judgment of society has favored and approved legislation for collective bargaining by labor. And as our judges learn to understand the circumstances, they also approve. But what of the rights of the individual or minorities of wage earners who do not want to bargain collectively? The Railway Labor Act provides that the majority of a craft or class of employees shall have the right to select the organization to represent the whole class or craft. Does the Supreme Court's approval of this provision mean that railroad employees are to be forced into closed shops? And if the

RIGHT AND WRONG similar provision contained in the National Labor Relations Act is approved, will t h a t mean t h a t the closed shop is to be imposed on all industries ? T h e closed shop has been used as a slogan and battle cry in the industrial war for and against collective bargaining, and has served to confuse issues for the purposes of the warfare. Unionism and collective bargaining are not synonymous with the closed shop. Both exist and may be effective with or without the closed shop. T h e real distinction is between union and nonunion shops, for these distinguish collective and individual bargaining. All union shops provide collective bargaining; all nonunion shops enforce individual bargaining. And both m a y be either closed or open. Union shops t h a t are closed require all employees to be union members; open union shops do not m a k e this requirement. Closed shops, however, are not necessarily union shops. T h e y are often nonunion shops, t h a t is, closed antiunion shops, every employee being required to refrain from joining a union.

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In railroad transportation, labor relations are almost completely organized and governed by collective bargaining. More than three thousand agreements between unions and carriers lay down the terms and conditions under which individual employees are hired, promoted, disciplined, discharged, their grievances heard, and disputes adjusted. But not one of these is a closed-shop agreement. In fact, by amendment in 1934, the Railway Labor Act prohibits making membership or nonmembership in a labor organization a condition of employment, thus making the closed shop illegal. The opposition to unionism and collective bargaining on the ground that it necessarily means the closed shop is therefore clearly camouflage. But what happens to individuals and groups of employees who do not desire to join labor organizations? If a majority of them are so inclined, they can vote against all organizations and in this way continue on an individual bargaining basis. It is significant, however, that as soon as they are protected by law against interference from the management, employees

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almost always choose collective bargaining through some kind of labor organization. It is rare for a majority of the employees in any craft or class or plant to vote for individual bargaining when they have an opportunity freely to express themselves by a secret ballot. Individuals and minorities do vote against collective bargaining. W h a t happens to their rights when a union agreement is negotiated by an organization chosen by the majority to represent all the employees in a craft or a plant ? * Nothing different from what happens in any political organization or industrial corporation where policies, laws, and regulations must necessarily express the will of the greatest number. We do not consider that the rights of minority stockholders are disregarded when the owners of the majority of shares select the directors, and when the majority of directors determine the policies of the management. For * As in political representation, majority rule in labor representation implies appropriate constituencies. Just as the President and Congress are not chosen by a majority of all the voters in the United States, but rather are chosen by states and congressional districts, so representatives of the employees are chosen by majorities of crafts or classes of employees, or other appropriate bargaining units.

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m any years a minori ty s tockholder of the Uni ted States Steel Corporation objected to working the employees twelve hours a day, and he subsidized research to expose the evils of the long working shifts and Sunday work. But the majority determined the labor policy, and he and other minority stockholders were not permitted to bargain individually with their employees, although the corporation was insisting that individual workers must do so as a matter of American principle. The staff of officials, managers, and supervisors of an industrial corporation commonly runs to ten per cent of all the employees; but the individuals and groups who comprise the managerial forces are deprived of no rights when the policies they are required to administer are determined for them by the majority of the directing management. Similarly, no individual employees or minority groups of workers sacrifice any legitimate rights when the majority selects and instructs the representatives to bargain collectively regarding matters in which all have a common interest.

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Since scales of wages, hours of labor, and general conditions of employment are matters which management must consider for a class of work or a department or a plant as a whole, they necessarily affect the interests of all employees in each group as a corporate body. Often, too, the management's policies with respect to these matters are uniformly determined by the central office of a corporation for all the plants that it owns. If the workers are to have any voice at all, it must be exercised through representatives who will negotiate with the management at the time the labor policies and the rules and regulations to govern employees are being formulated. If, on the other hand, individuals or minorities are permitted to bargain separately for themselves, the terms and conditions they accept necessarily have an influential effect on the rest of the employees. Like the corporation itself, the labor force is an entity separate and distinct from the individuals who compose it. And it is endowed with the same immortality that the corporation has. Employees may die or quit or be discharged,

I N LABOR RELATIONS but the labor force goes on as long as the enterprise lasts. When the labor force acts in its own behalf, minorities of employees must, like minority stockholders, be bound by the majority. This, however, does not preclude the possibility that individuals or groups may deal directly with the management, or designate representatives of their own selection for the purpose of handling grievances or other matters that affect them personally and not the whole body of employees. The organization representing the majority makes the collective-bargaining agreement which is binding on all the management and all the employees, regardless of whether they belong to any organization or not. And subject to the official interpretations of the agreement made jointly by management and union representatives, or by an impartial adjudicator, individuals may handle matters that affect them personally in any manner they consider best. The rights of individuals and minorities are thus treated both in the Railway Labor Act and in the National Labor Relations Act, and

R I G H T A N D WRONG the United States Supreme Court has now decidedunanimouslythattheemployers are wrong when they insist that either their own freedom of contract or the contractual rights of individuals and minority employees are improperly interfered with by the government when it compels employers to deal with an organization chosen by a majority of a craft as the representative of all the employees in the craft. Strikes for collective bargaining, like organization strikes, are therefore wholly unnecessary. When they do occur in interstate businesses, it means that the laws of Congress are being flouted. When they occur in intrastate industries, it means that state laws are needed after the federal model. In any case, we know now that it should be unnecessary for working people to have to strike in order to secure rights of collective action that are legitimately theirs and that should be enforced by law. And it is plain that most of the industrial warfare of recent years could have been avoided if employers had freely acknowledged these rights. If we want to maintain industrial peace and

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yet be fair to all concerned, we must concede that it is not the strikers who bring on industrial wars when the issues are unionism and collective bargaining.They are not wrong when they insist on their rights in these respects. We should think less of them if they weakly permitted rights and privileges that are theirs as citizens to be denied to them, and if they were unwilling to make the sacrifices necessary to safeguard for them and their fellows, by strikes or otherwise, the liberties that other Americans enjoy. It is the employers who are wrong when they deny organization and collectivebargaining rights. 1 1 is they who are responsible for the industrial warfare over these issues, by making it necessary for men to strike for what is rightfully theirs. And the public generally as well as our governments must share the blame when the rights are not protected peacefully through the processes of law. When, however, the legal protections are available, and working people do not avail themselves of peaceful, legal means, but resort to strikes instead, then it is they, and not the

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employers or the public, who must bear the guilt of bringing on unnecessary industrial warfare. We are thus brought to a consideration of the means used by wage earners to secure their rights, and the methods they pursue to accomplish the purposes of union organization and collective bargaining. And the latest of these is the sit-down strike, which has been the subject of much denunciation but little analysis and evaluation. J. The Right and the Wrong in Sit-down Strikes T h e present furor about sit-down strikes serves as an excellent illustration of the confusion that results when new problems arise in labor relations and when there is general public ignorance of their nature. Whereas the clarification of the issues with respect to unionism and collective bargaining has improved the prospects of industrial peace, the widespread lack of understanding of the nature of the new strike technique threatens to becloud the issues again and to check the progress that has been made toward more equitable organization of the re-

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employers or the public, who must bear the guilt of bringing on unnecessary industrial warfare. We are thus brought to a consideration of the means used by wage earners to secure their rights, and the methods they pursue to accomplish the purposes of union organization and collective bargaining. And the latest of these is the sit-down strike, which has been the subject of much denunciation but little analysis and evaluation. J. The Right and the Wrong in Sit-down Strikes T h e present furor about sit-down strikes serves as an excellent illustration of the confusion that results when new problems arise in labor relations and when there is general public ignorance of their nature. Whereas the clarification of the issues with respect to unionism and collective bargaining has improved the prospects of industrial peace, the widespread lack of understanding of the nature of the new strike technique threatens to becloud the issues again and to check the progress that has been made toward more equitable organization of the re-

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lations between employers and employees. T h e fact that sit-down strikes are now considered front-page stuff makes it difficult to get a proper perspective on them. B u t if w e bear in mind that they are b u t one of m a n y methods of conducting strikes, and that like other strikes they are merely a means that workers use to get differences with their employers settled, then w e m a y find that they are not so utterly wrong or threatening to law and order as appears at first sight. I f all or a m a j o r i t y of the employees in a plant cease operating and remain at their work places because they h a v e real or alleged grievances, such a sit-down presents problems of labor relationships that are not resolved b y ordering employees out of their places of employment and branding them as criminals if they do not go. I f only a minority engages in the sit-down but, notwithstanding, expresses the wishes and has the support of the m a j o r i t y , the situation is much the same. O n the other hand, where a minority attempts a sit-down for purposes not approved b y the m a j o r i t y and against

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its wishes, such an effort is easily suppressed when the greater number of employees cooperates with the management in preventing or putting an end to it. Most sit-down strikes have been conducted by minorities; but those that have been successful in defying both the management and public authorities have usually had the tacit or active support of much larger numbers of fellow employees. That the sit-down strike is now illegal is hardly open to question. But other kinds of strikes are also illegal, yet they occur frequently. The Supreme Court of the United States has specifically ruled that there is no absolute right to strike.* Only those strikes are legal whose purposes the courts recognize as legitimate. Thus a strike to enforce claims for wages that could be collected through ordinary court procedures has been held illegal, and strikes in violation of agreements, or to induce violation of agreements, sympathetic strikes, and in many states strikes for closed shops and similar purposes are all unlawful. In other words, the objectives of the strikes, the merits of the * Dorchy v. Kansas (1926) 272 U.S. 306.

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differences between employer and employees that are the causes of the disputes, determine whether the strikes are lawful. To a person familiar with the long and tortuous process by which labor organizations and their activities have been legalized, it does not seem unreasonable to expect that the sit-down strike will go through the same process and in time find judicial and legislative favor for purposes that are considered legitimate. Every strike is an invasion of property rights. The sit-down is not unique in this respect. But because it has been recognized that the processes of labor bargaining and settlement of disputes require a method by which there may be a concerted withdrawal of employees' services to match the employer's authority to lay off workers in a body, the law has modified propperty rights to permit strikes under certain conditions. When sit-down strikes are denounced as illegal, therefore, nothing is added to our knowledge of them. But when they come under the scrutiny of the higher courts, they are likely to

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be analyzed and distinguished as other strikes have been, and some may be found legal while others are outlawed. If strike law is developed in the future as it has been in the past, the test of legality will be sought not in the fact of sitting down, but in the merits of the controversy. For consider what happens when a sit-down as such is declared illegal. The issues that gave rise to the strike are ignored. The employer may have provoked it by unfair labor conditions and unconscionable conduct toward employees, by violations of their rights and of laws designed for their protection. Such matters are ignored, and the employees are punished for using an illegal but effective method of getting grievances redressed and laws for their protection obeyed. Both of the judges who ordered the eviction of employees from Michigan automobile plants emphasized the fact that they were not concerned with who was right and who was wrong in the differences between the employees and the employers; they were merely doing their duty in enforcing the laws for the protection of property rights.

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That is exactly what the judge did in 1806 when he condemned the Philadelphia shoemakers for engaging in a criminal conspiracy. In explaining the law to the jury, that judge said of a combination of workmen: "[it] is an unnatural, artificial means of raising the price of work beyond its standard and taking an undue advantage of the public. . . . If there are many to consume, and few to work, the price of the article will be high; but if there are few to consume and many to work, the article must be low. . . . These are the means by which prices are regulated in the natural course of things." Thus it was no part of the judge's duty to determine whether the wages paid were fair or adequate. A combination of workmen interfered with the legal way of fixing the price of labor, and therefore was criminal. Similarly, equity courts for many years intervened in labor controversies by issuing injunctions to prevent irreparable injury to property, which had the effect of declaring the strikes illegal while the merits of the controversies were ignored. The Norris-La Guardia

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Act now prevents judges from issuing such injunctions except to prohibit violence when the employer's own acts of omission or commission are responsible for the existence of the strike. This and similar state statutes now restrict the protection of the employer's property rights in situations where he is himself responsible for the strike that has placed property in jeopardy. The Supreme Court of the State of Wisconsin in denying a request for an injunction clearly explained the new view that the law is taking with respect to these matters: "Plaintiff [i.e.,the employer] pursued a course of conduct that precipitated a labor war.When the tide of battle seemed to be setting against it, the plaintiff sought to withdraw from the field to which it had deliberately gone and appealed to a court of equity for protection from the consequences that naturally flowed from the course of conduct which it had deliberately pursued. If, as the plaintiff asserts, it has kept within its legal rights in all that it has attempted to accomplish, the fact remains that in so doing it has pursued a course of conduct

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which is such as will lead a court of equity to leave the plaintiff to the remedies which the law affords to it. Under the facts as established by this record the plaintiff is not entitled to relief in equity."* Here we see the process set aside by which the protection of property rights is made an excuse for ignoring the aggressive acts of one party in a labor controversy and punishing the other for measures used as defense weapons. When, however, the Michigan judge was asked to consider theillegal actsof the automobile companies that precipitated the sit-down strikes, he replied that one wrong could not be righted by another wrong. This is obviously correct if the employees have other legal methods of redressing theirwrongs. But where such methods are not available, as, for example, when the law will not protect men who are discharged for union activity or who are refused conferences by employers for consideration of grievances, it is not improbable that the reasoning of the Wisconsin court will be applied in cases * David Adler & Sons Co. v. Maglio (1929) 200 Wis. 153, 228 N.W. 123.

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involving sit-down strikes when the legality of these are determined by the higher courts. But sit-down strikes are used also when the legal rights of the employees are fully respected, and when the matters in controversy are honest differences over wages and working conditions. Many of them also represent only the activities of minorities that do not have the support of a majority of the employees. These sitdowns present different questions, and not only are they likely to remain illegal, but in all probability their unlawfulness will be made more definite and punishable in the future. A sit-down strike, even by a minority group of employees, has a measure of justification if its purpose is to secure redress of wrongs for which no legal remedies are provided. Once, however, the policy of Congress is established as the valid law of the land, and the employees in any craft or class or other bargaining unit have the right to designate the organization to bargain collectively for them, then any sitdown by minorities becomes plainly illegal, regardless of any claims of property rights or

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rights in jobs.Thus the United States Supreme Court, in upholding the Railway Labor Act, prohibited the Virginia Railway Company from dealing with any minority group, and directed it to deal only with true representatives chosen by the majority in an election conducted by the National Mediation Board. I t is significant, however, that it was not the employees, but the employer, that was insisting on dealing with minorities. Similarly, the employers in the automobile and other industries where sit-down strikes are most prevalent, are those who are insisting on their right to bargain with any group of employees regardless of the wishes of the majority. They challenge the validity of the National Labor Relations Act on the ground that their constitutional right to bargain with minorities, and the rights of minorities to bargain with them, are violated by the Act.These are the industries also which until very recently have insisted that they would deal with their own employees only, and that they would not deal with outside organizations.

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It seems strange, therefore, that these same employers, when minority groups of their own employees present demands to them and insist on remaining within the plants as a means of forcing prompt negotiations, should insist on having the employees leave the plants and become outsiders before they will bargain with them. It is to be noted that in industries where well-organized unions are recognized as the bargaining agents of all the employees, the sitdown strike is not a problem, because the unions will not countenance such action by minorities. The sit-down is primarily a phenomenon of unorganized industries where individual bargaining and dealing with any groups of employees has been the established management policy. Nothing better than this development is needed to demonstrate the essential soundness of the government policy of enforcing collective bargaining through organizations freely chosen by majorities of employees; and nothing can better illustrate how mistaken have been the labor-bargaining policies which our leading industries have defended on principle

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as against the policies that Congress was developing. Sit-down strikes engaged in by minorities are clearly wrong and illegal under the Acts of Congress for regulating labor relations. It is not for those who, contrary to these laws, insist on the right to bargain with any groups, to complain when minorities run amuck. T h e sit-down strike, as we now know it, can be eliminated as a national problem by obeying and enforcing the laws of Congress providing for collective bargaining by majority rule. 6. Differences Regarding Terms of Employment But there remains the question of rights and wrongs in those labor controversies which arise out of differences over wages, hours of labor, and working conditions. When legal rights are fully established and impartially protected in accordance with modern needs for collective organization and administration of labor relations, and when corporate employers and associated employees approach their bargaining on a basis of equality, what then, if they disagree on the terms of employment?

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as against the policies that Congress was developing. Sit-down strikes engaged in by minorities are clearly wrong and illegal under the Acts of Congress for regulating labor relations. It is not for those who, contrary to these laws, insist on the right to bargain with any groups, to complain when minorities run amuck. T h e sit-down strike, as we now know it, can be eliminated as a national problem by obeying and enforcing the laws of Congress providing for collective bargaining by majority rule. 6. Differences Regarding Terms of Employment But there remains the question of rights and wrongs in those labor controversies which arise out of differences over wages, hours of labor, and working conditions. When legal rights are fully established and impartially protected in accordance with modern needs for collective organization and administration of labor relations, and when corporate employers and associated employees approach their bargaining on a basis of equality, what then, if they disagree on the terms of employment?

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So far as physical working conditions are concerned, the same evolution that has transformed the employer into a large management force and the journeyman mechanic into masses of production forces has also removed the questions of safe and sanitary work places from the realm of bargaining between them. As the scale of production and the aggregations of producers have grown in size, these conditions of employment have become affected with a public interest. Standards of safety, cleanliness, lighting, heating, cubic air space, and the provisions for personal needs and comfort of employees are largely set by public health and safety regulations. Legal enactments and administrative orders with respect to these matters have therefore largely eliminated the strikes that occurred quite frequently in the past to secure improvements in physical working conditions. The tendency is in the same direction, though to a lesser degree and much more slowly, with respect to the length of the workday and the work week. For women and juvenile workers, legal regulation of hours of labor and restric-

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tion of night work has become the general rule, but for adult males these matters have been largely left to the bargaining of employers and employees, except in certain extrahazardous industries. Hours of labor have therefore been a frequent cause of strikes, and there has been no standard by which the proper length of the workday or work week might be determined on the basis of what is right. The steadily mounting proportions of unemployed wage earners through the prosperous years preceding 1930, however, together with the unprecedented unemployment since that time, has directed public attention to the relation of working hours to the size of the labor supply. Just as the laws restricting immigration have reduced labor supplies, so it is thought that restricting working hours reduces labor supplies and long hours increase them. Therefore there is insistent public demand for shorter workdays and work weeks as the means of decreasing the surplus of unemployed labor.This coupling of working hours with the problem of unemployment has been one of the main caus-

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ative factors in the establishment of the fortyhour week, which is rapidly becoming standard; and we may expect in the near future that government regulation will fix maximum working hours. Thus another frequent cause of labor wars will be eliminated by legislation. When we come to the questions of wages and earnings, however, in spite of the minimum wage laws that will no doubt be enacted to aid the weakest labor groups, the probabilities are that disputes will become more frequent and the attitudes of employers and employees more bitter and less compromising. For the equalizing of bargaining power between them that is now going on is but the beginning of a widespread movement for a redistribution of wealth, income, opportunity, and social status of economic groups, to which the President, with characteristic insight, repeatedly refers and directs public attention. The New Deal labor legislation and the strikes for unionism and collective bargaining are but the implementing of the means by which the masses of the population may more readily assert their claims to

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a wider and more equitable division of what are considered the good things of life. When equality of bargaining power is achieved, and maintained by the recognition of equal legal rights for the employing and the employee classes, then the bargaining will become sharper, the contests and controversies over the division of the fruits of industry more stiff and stubborn. For there is no standard of right and wrong by which wages and earnings may be determined. What income working people ought to receive in return for their labor is a question that cannot be answered by any ethical judgment. That employees should have an equal voice with employers in determining their pay is now generally conceded, but what the pay should be must remain primarily a matter of negotiation andexpedient adjustment and compromise. Customary and prevailing wages, labor supply and demand, the value of services, and standards of living all deserve consideration, but none of these, nor any other like principle, can be accepted as determining what

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is fair or just. The state may set a minimum wage to prevent employers from paying labor less than the cost of its keep, but its attempts to fix the rewards of labor generally have proved as unacceptable to working people as the wages that are dictated by employers. Andgovernmen t wage fixing has proved equally unacceptable to employers. For when the rewards of labor are determined, the rewards of management and of investors are also determined, and there are effects on the incomes of consumers. And in these controversies over the division of the income from industry, not only wages and earnings are involved, but also the sharing of economic authority. Government for wage earners and salaried employees is primarily industrial government. For them the concentration of authority in Washington is a lesser fear than the concentration of power in the centers of industry and finance with their bureaucracies of corporate officials, directors, managers, superintendents, department heads, and lesser bosses, on whose whims and judgments, uncontrolled by judicial review, depend

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not only their jobs, careers, and reputations, but also the livelihood and welfare of their families. It appears inevitable that the forces of democracy shall spread to industries and workshops, to secure there the same restraints on arbitrary government that have been imposed on political authorities, and to establish there the rule of law rather than of men.The principle that industrial government, like political government, derives its just powers from the consent of the governed is the objective of present labor movements. All this, however, does not necessarily mean that strikes and industrial wars are bound to be more numerous, more frequent, or more prolonged. Just as experienced political democracies have learned to settle the most bitter controversies by the peaceful methods of balloting, legislating, and submission to judicial decisions, so there has been enough experience with the processes of democracy in industry to make it possible to settle labor controversies also while peace and order are being maintained.

R I G H T AND W R O N G The method of collective bargaining, so far as it is successful in establishing written agreements covering wages, hours, and working conditions, is itself a guarantee of peace during the period that such agreements are in effect.They commonly prohibit strikes and stoppages of work (including sit-downs) during the life of the agreement, which may be for a year, two years, or three or more. Many agreements are automatically renewable at the end of their terms, unless either party gives notice of desired changes, and many are permanent agreements with a provision for negotiating changes at the request of either party on thirty days' written notice. While it is often asserted that labor organizations cannot be held responsible for violations of such agreements whereas industrial corporations are responsible, the record of experience is t h a t established and recognized unions are as jealous of their reputations for keeping agreements inviolate as are employers. And the notion that unincorporated associations are legally not responsible for meeting

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their obligations is a quite erroneous interpretation of the law with regard to such matters. Whether incorporated or not, unions may be held legally accountable for their agreements quite as effectively as employers may be.Workers may not be compelled to render involuntary service either under individual or under collective bargaining; but the difficulties of enforcing responsibility for commitments made by a labor union representing employees are no greater than the difficulties of making a corporation responsible for acts of its agents or managers. The charges and countercharges of violation of agreements often heard in labor controversies are due to lack of effective judicial machinery for settling disputes involving interpretation or application of agreements. That strikes from these causes can be successfully avoided, however, is evident from actual experience under those agreements by which provision is made for a board with a neutral referee or impartial chairman to decide all differences with respect to the meaning of the agreements.

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In the railroad industry, adjudication of disputes arising out of agreements in this manner has been compulsory since 1934. In industries where labor relations are not governed by collective agreements, there are no set periods or methods for adjusting differences. Controversies may arise at any time, and they may break out into most serious strikes with little or no notice. In the industries where agreements prevail, however, both parties are very reluctant to disrupt the institutions for labor adjustment that have grown up around the agreements and the body of common rules that develop in the process of administration. Both parties are therefore willing to make concessions in the interest of continuing orderly relationships, and under such circumstances the possibilities of adjustment by compromise or by arbitration are greatly increased. Collective bargaining and the agreements that result from it, therefore, are important agencies for the peaceful and orderly settlement of the most controversial questions of

I N LABOR R E L A T I O N S wages, hours of labor, and earnings, as well as means of avoiding strikes and sit-downs to enforce employees' personal and legal rights. With an intelligent government policy ofintervention in labor disputes, which is rapidly developing as a result of the labor wars of the last few years, there is no reason to believe that the most powerful pressures for redistribution of industrial income and economic authority cannot be settled with fewer strikes and labor wars than accompanied the disputes of the past. 7. The Government and Labor Relations Of course there is no absolute guarantee against industrial wars any more than there is against international or civil strife. T h e attempts to outlaw strikes by compulsory arbitration or otherwise have proved as ineffective as the treaties to outlaw war as an instrument for the settlement of international controversies. But there are principles, methods, and policies of managing labor relations that lead to war and others that promote and maintain industrial peace. And there are labor policies of the gov-

I N LABOR R E L A T I O N S wages, hours of labor, and earnings, as well as means of avoiding strikes and sit-downs to enforce employees' personal and legal rights. With an intelligent government policy ofintervention in labor disputes, which is rapidly developing as a result of the labor wars of the last few years, there is no reason to believe that the most powerful pressures for redistribution of industrial income and economic authority cannot be settled with fewer strikes and labor wars than accompanied the disputes of the past. 7. The Government and Labor Relations Of course there is no absolute guarantee against industrial wars any more than there is against international or civil strife. T h e attempts to outlaw strikes by compulsory arbitration or otherwise have proved as ineffective as the treaties to outlaw war as an instrument for the settlement of international controversies. But there are principles, methods, and policies of managing labor relations that lead to war and others that promote and maintain industrial peace. And there are labor policies of the gov-

R I G H T AND WRONG ernment and methods of government intervention in labor disputes that similarly may encourage fighting it out as a method of settling disputes, and others that promote peaceful adjustment and the reign of law in industry. We come, then, to the part the government can and must play in the determination of controversial issues in labor relations if the public interest in the maintenance of peace, order, and the production of goods and services is to be safeguarded and the problems of democracy in industry worked out with a minimum of strife. When strikes and industrial disputes begin to inconvenience the public by the interruption of production, the common reaction is that some kind of board ought to be appointed to arbitrate, investigate, or in some other way bring about peace. But those familiar with such boards know that their members are not likely to be any wiser or more capable than many of the leaders of industry or labor who marshal the forces of conflict. The settlement of labor disputes is an intricate problem, and the mere fact that there is a board to investigate or ren-

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der opinions is not enough to compose differences and to avoid or settle strikes. Although the prestige of a government board and the mediating ability of its personnel are extremely important, these are not sufficient to restore or to maintain industrial peace. It is the labor policies of the government, and the principles and methods for the settlement of various kinds of disputes that are provided to guide and control a labor board's actions and procedures, that are the important things in preventing and ending strikes, not the mere existence of a board. And if these policies and procedures are predicated on a public interest in fair dealing and equal protection of rights, then the labor-relations policies of our industries and labor organizations must be brought into harmony with them. Experimenting in these directions has been going on for half a century. The basic principles and methods necessary to coordinate the efforts of the government, industrial management, and labor organizations for the maintenance of industrial peace are now well known to students

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of these matters, and the settlement of the most fundamental issues that arise between employers and employees can be accomplished with little need for labor wars. First, as we have seen, there are needed the legal guarantees of the right to organize and to bargain collectively. For these the prohibition of certain unfair labor practices, as in the National Labor RelationsAct, provide the means. But when boards are appointed to enforce these guarantees, they must not be confused with mediation or arbitration boards. They are essentially labor courts for the adjudication and enforcement of industrial rights. Compromise and adjustment, which are essential to successful mediation, have no place where law enforcement is involved. When such labor courts are provided, or when the ordinary prosecuting and judicial authorities can adequately enforce labor's organization and collective bargaining rights,* the most important single cause of industrial wars will have been removed. * In the Railway Labor Act the enforcement of these rights is made a duty of the United States district attorneys and the federal courts.

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The enforcement of legal rights will necessitate also the exercise of certain quasi-judicial functions in deciding disputes with respect to the organization that is duly designated and authorized by the majority of the employees to represent and bargain for all of them. And as an incident of this duty it may be necessary for the labor court to decide what is the appropriate unit for collective bargaining purposes. The Railway Labor Act defines this as any craft or class of employees, but the National Labor Relations Act leaves the bargaining unit to the determination of the board. Under both acts provision is made for elections and certification of representatives. The techniques for carrying out these purposes have been greatly perfected during the last three years, and many disputes that formerly were the cause of frequent strikes are now settled by orderly elections. To such labor courts may also be assigned other judicial functions to prevent strikes. When agreements between employers and labor organizations spread throughout our industries,

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as they are now rapidly doing, innumerable disputes involving their interpretation or application are bound to arise. And unless judicial machinery is provided to determine these issues, frequent strikes are likely to occur. A government policy might well make it a legal requirement, therefore, that all collective bargaining agreements must contain in them provisions for peaceful adjudication of disputes over their meaning, or it might require that all such disputes shall be referred to government labor boards or referees for final decisions.The Railway Labor Act sets up a special court, known as the National Railroad Adjustment Board, for deciding all disputes over the question of interpretation. Thus another common cause for strikes can be avoided. With the disputes that can be settled by judicial process thus determined, the government is in a position to adopt effective measures for securing the settlement of other issues, such as wages and hours, by mediation, and voluntary conciliation or arbitration. For this purpose, however, certain défini te substantive provisions

IN LABOR RELATIONS in the statutes setting up mediation machinery are also essential. There needs to be imposed on employers and employees alike a legal obligation to settle all disputes, if possible, by conference and by mutual agreement between the authorized representatives of both. In this way both managements and labor organizations must meet certain legal requirements before mediation of their disputes are undertaken by a government agency. The Supreme Court has just ruled in the railroad case that such an obligation to confer may be made legally enforceable even though neither party can be compelled by law to enter into any particular agreement. The purpose of conference and negotiation between representatives, however, is to secure agreements; and although it is unwise, as well as unconstitutional, for the law to force specific agreements, nevertheless it is desirable and necessary, in order to promote peace, to provide that it shall be the duty of both employers and employees to exert every reasonable effort to make and maintain agreements covering rates

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of pay, rules for the government of employees, and working conditions. Such a declaration of policy, where it has been embodied in a mediation act, has proved extremely important in accomplishing the purposes of the act. When the representatives have exhausted their efforts and are unable to settle disputes by mutual agreement, then, and not until then, either party should be authorized to invoke the services of the mediation agency set up by the government. Provision must also be made for the agency to intervene on its own motion when emergency action is needed to prevent or to settle a strike. Such an agency is preferably a board none of whose members has either employer or employee affiliations, with a staff of mediators similarly neutral. The board either directly or through its mediators must be required promptly to put itself in touch with the parties when its services are invoked, and to exert every effort, but by mediation only, to get the parties to agreement. Any effort at compulsion at this stage, or indeed anything more than merely using good offices and by

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skill and ability persuading the parties to agreement, has been proved by experience not merely to be mistaken, but in fact to stimulate rather than settle labor disputes. When,however, all mediation efforts are unsuccessful, then the duty needs to be imposed on the mediation agency to try to induce the parties to submit their controversy voluntarily to an arbitration board. The mediators, however, must not act as arbitrators, or they will render themselves useless for future mediation work. And the arbitration board may well be bipartisan, but with a neutral chairman. The law should make clear that neither party is to be considered as violating any legal obligation if it refuses arbitration, both for constitutional reasons and because compulsion in these matters brings results that are worse than lack of voluntary agreement. When arbitration is refused and a serious labor war threatens, a further step in the interests of peace has been found useful. T h a t is to appoint an emergency board of prominent citizens, qualified by fairness in such matters, to

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investigate the facts of the disputes, and to report to the public their findings on the issues involved and their recommendations of a proper basis for settlement. Experience under the Railway Labor Act, which provides for such emergency boards, has shown that their recommendations usually stimulate the parties to agreement. While the parties are conferring, negotiating, and attempting to settle their disputes by mutual agreement, and while the mediation, arbitration, and emergency action are taking place, the law may well impose an obligation on the parties to maintain the status quo—that is, the employer to refrain from changing conditions and the employees to refrain from striking. The Railway Labor Act so provides, and the arrangement is acceptable to the American Federation of Labor unions that function on the railroads as well as to the independent railroad brotherhoods and the managements. But serious objections are raised to applying such a provision to industries generally, on the ground that it would be an unjust restriction

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on the hard-earned freedom to strike, and would put employees at a disadvantage in those industries where sudden strikes without notice are necessary to protect their rights and interests. These objections, it is to be noted, are based on the fear that employers will continue labor practices now condemned as unfair by Congressional Acts, and that the government will be unable to protect organization and collective bargaining as other legal rights are protected. So long as this is true, of course, there can be no justification for restricting the freedom of strike action that is necessary to prevent abuses. When, however, the government creates effective agencies for enforcement of legal rights and impartial adjustment of disputes, it seems clear that it is entirely justified in insisting that its adjustment machinery be used and that strike action be withheld while the processes of negotiation and mediation are going on. To hold otherwise is to regard the strike as an end in itself rather than a means of furthering legitimate purposes. These considerations with respect to legisla-

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tion for postponing strikes are really but a part of the larger question of the justification of government regulation of the practices and policies of labor organizations. The attitude of organized labor toward such regulation has been conditioned by its experience in having to fight for its very existence against industrial policies designed to destroy it which the law considered part of the prerogatives of property and management. Employers and their associations have frequently advocated regulation, contending that unions need to be made responsible by law for their acts. The same employers were nevertheless refusing to deal with any unions, exerting every effort to prevent them from functioning in industry, and pursuing policies looking to their destruction. For the government to hamper union organizations with regulations while they are fighting for the right to exist and carry on their legi timate functions would be obviously unfair and unreasonable. Organized labor has therefore resisted government regulation, and legislatures have generally refrained from attempting it.

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When, however, labor organizations win their legitimate places in industry, and the government protects and aids them, then the situation will be changed. And the attitude of trade unions toward government regulation of their affairs will also have to change. If legal protection is given to unions because they are necessary to the proper organization and management of present-day labor relations, what if they do not perform their functions ? When a union by a majority vote is given the right to bargain for all employees, it becomes a trustee for all, and must be subject to appropriate regulation like any other trustee.When most workers freely exercise their right to organize under government safeguards and encouragement, the vast labor organizations thus formed become agencies of industrial government as much as the managements of great corporations are.The need for regulation will be the same. Their finances will acquire a public interest, similar to corporation finances. The rights of their members under their own laws and constitutions will become subject to legal oversight. The

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proper and legal election of their officers and agents will perhaps be more important than the election of municipal and state officers. And their inability to settle their own jurisdictional quarrels will probably be a most important factor in subjecting them to public regulation. In most of these matters labor organizations are not now free of legal responsibility. Their acts are subject to review by the courts on complaint of individual members. And dishonesty or malfeasance of their officers is subject to prosecution. But in all their general functioning, public authority has hitherto not interfered because they were regarded as private organizations conducting private bargaining with private employers. The new status given them by the guarantee of their legal rights, however, will in time make it necessary for the government to see to it that they perform their duties properly. But such regulation by the government must wait upon the time when employers recognize and deal with unions as the representatives of their employees, and permit the organizations to function in their plants.