# Unions and Government Power **URL:** **By** Joan Kennedy Taylor **Published:** July 1, 1981 --- “After years of suffering coercion, organized labor had achieved a place among the coercers.” At a time when the Polish union movement is amazing the world by the bravery and gallantry with which it is opposing the communist government of Poland, few Americans are expressing similar feelings toward our own domestic union movement. You see people wearing Solidarity T-shirts at parties—no one wears UAW or Teamster T-shirts. Why? What’s the difference between the unions in Poland and unions in the United States? For that matter, what’s the difference between the union movement in the early years of this century, that championed free speech and the rights of petition and assembly, and today’s unions, whose leaders seem to take the establishment point of view on every issue? It’s a question of government power. Solidarity reminds us of what a union can be, because it is opposing the government, who is the only employer in a communist country. The government is what the union is organized against. Similarly, the early union organizers in this country were supporting the right of individuals to organize and combine against the government-supported employers who were trying, by force, to keep them from asserting this right. But American unions did not repudiate the use of government force, instead they seized it for their own end, the advancement of their members; even, as we shall see, to the extent of using the government to enforce racial discrimination. Before the American Revolution, the colonies were governed by British law. And England had been a feudal country, with a tradition of regulating labor—in fact, of forced labor. A statute passed in 1349 required that every English subject “not living in merchandize, nor exercising any craft, nor having of his own whereof he may live” be compelled to work at such wages as “were accustomed to be given in the places where he oweth to serve,” on penalty of imprisonment. In 1548, Parliament forbade any organized efforts by laborers to fix wages and hours, and in 1563 it passed a law requiring the unemployed to work for any who wanted them and allowing justices of the peace to set _maximum_ wages and fine any employer who exceeded them, while other statutes kept workers from moving from their localities in search of other jobs. These restrictions on the rights and activities of workers culminated in the idea that any organization workers might form was a criminal conspiracy. And this doctrine not only crossed the Atlantic but was retained in American law. It was as late as 1842 before the legality of forming a union was established in a case brought against workers merely for forming a society, _Commonwealth v. Hunt_. The Supreme Judicial Court of Massachusetts declared, “The manifest intent of the association is to induce all those engaged in the same occupation to become members of it. Such a purpose is not unlawful. . . . \[I\]n order to charge all those, who become members of an association, with the guilt of a criminal conspiracy, it must be averred and proved that the actual, if not the avowed object of the association, was criminal.” However, the courts still reserved the right to judge the objectives of union activity, and looked with disfavor on economic and social pressures being used to “compel” employers to modify the way they managed their businesses or workers to join unions. But the labor movement continued to grow, fanned by the wave of immigrants that was arriving on American shores, many of whose members brought with them the ideas of European revolutionary socialist and anarchist movements. By the third quarter of the nineteenth century, it had become sizable. The Knights of Labor, which had begun as a secret society of tailors in Philadelphia, became a national industrial union in 1878, and by 1886 had over 700,000 members. And in 1886 a rival organization was formed that was to outstrip it — in December of that year, some 25 labor groups met in Columbus, Ohio, to found the American Federation of Labor, and organization of craft unions. The movement wasn’t growing without violence. The “Molly Maguires,” a miners’ group with ties to revolutionaries in Ireland, operated in Pennsylvania in the 1870’s. A general railroad strike in 1877 led to violent confrontations with state militia and federal troops. There were widespread boycotts and strikes during 1884-1886, and in May of 1886 the famous Haymarket Square incident occurred, in which an anarchist meeting to support a strike was broken up by police, a bomb exploded, and seven anarchists were sentenced for murder. With the passage of the Sherman Anti-Trust Act in 1890, which declared “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce” illegal, the stage was set for a renewed attack on labor unions. According to the late Supreme Court Justice, William O. Douglas, While corporate business fared quite well under the Sherman Act, labor soon felt the full sting of the new law.... In 1894 Eugene Debs had led a strike against the Pullman Company for better wages, and in response the Department of Justice moved in and got an omnibus injunction against the strike. While never advocating violence or lawlessness, Debs stood firm on the strike. Yet he was cited for criminal contempt, found guilty and sentenced to prison.... Thereupon he sought habeas corpus in the Court, which denied relief. The Court sustained the injunction not under the Sherman Act but under other federal acts extending national control over railroads. .. In prison Eugene Debs turned to socialism and emerged to proclaim that “industrial slavery” would be abolished. The entire episode caused many to conclude that the Court was nothing but a servant of the moneyed interests. The Court’s ruling in the Debs case, which resulted in making the injunction a major legal weapon against unions, was similarly characterized by constitutional scholar Edward S. Corwin in a 1932 article in _The American Political Science Review_ advocating social planning: “\[T\]he Court held in that case that the Executive has the prerogative right to enter the national courts independently of statutory authorization, and obtain an injunction to protect any widespread public interest of a proprietary nature, and to support the injunction with all requisite force.” (The “requisite force” in the case of the Pullman strike included swearing in 3,400 men as special deputies to keep the trains running and sending in federal troops to keep order.) A period followed in which it became commonplace for businesses to be granted federal or state injunctions to end or prevent strikes, and in which, in the words of Murray Weidenbaum (later to be Chairman of President Reagan’s Council of Economic Advisers), “there were numerous and successful prosecutions of labor unions under the Sherman Antitrust Act.” (_Los Angeles Times_, July 3, 1979) But the unions continued to grow, in size and influence, and in 1914, the Clayton Antitrust Act (a law called “labor’s- “Magna Carta” by Samuel Gompers, founder and first president of the A. F. of L.) was passed. It increased the reach of the Sherman Act in some respects, but it specifically limited the use of legal force against labor. It stated that “the labor of a human being is not a commodity or article of commerce; nothing in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural and horticultural organizations ... nor shall such organizations or the members thereof be held or construed to be illegal combinations in restraint of trade under the antitrust laws.” (It also made strikes, peaceful picketing, and boycotts legal, and limited the use of the labor injunction to cases in which the courts held it necessary to prevent violence or “irreparable damage to property.” However, the interpretation of this Act was still up to the courts, who decided which activities were peaceful and which were damaging.) For the labor movement, it was not enough to be free of government restraint; it wanted to use government power to pass legislation to gain limits on working hours, restrictions on immigration, better working conditions, minimum wages — in general, it wanted social planning. And social reform was in the air; it seemed scientific. As Edward Corwin was to put it in 1932, “We are no longer headed for Heaven in a perambulator labeled Evolution, _Laissez Faire_, or any other uncomprehended force. If we get there, it will be on our own power.” The reforms of Progressivism were enacted at first by state legislatures. But as fast as such legislation was passed, the Supreme Court (using a rather dubious interpretation of the words “due process” to justify its belief in social Darwinism — “the survival of the fittest,” i.e. business) declared it to be unconstitutional. States, said the Court, would have to justify any interference with business’s “liberty of contract.” The effect of such decisions was to uphold property rights, but the constitutional foundation of them was so shaky that they were seen as arbitrary interferences with the will of the people for reform. The Depression seemed to prove to the reformers that what restrictions they had succeeded in putting on economic power had been insufficient to ensure the protection of the working man and woman. During Herbert Hoover’s term in office, two national bills became law that furthered some of labor’s objectives: the Davis-Bacon Act of 1931 which required that labor on public works projects be paid “prevailing wages,” and the Norris-La Guardia Anti-Injunction Act of 1932, which placed new limitations on the use of the injunction in labor disputes, forbidding injunctions to sustain antiunion employment contracts, as well as those to prevent strikes, boycotts, or picketing. But it was under Franklin Delano Roosevelt’s leadership that an entire program of national regulation of the economy was not only planned, but passed by Congress. The Supreme Court, some of whose members were still under the influence of social Darwinism, struck back. In 1935, it declared the National Industrial Recovery Act (NIRA) to be unconstitutional for three reasons: because it delegated legislative power to the executive, because there was no constitutional authority for such legislation, and because it extended the commerce power to the federal regulation of all wages and hours, even of those of persons engaged in intrastate commerce. In 1936, it invalidated the Bituminous Coal Conservation Act, which protected unions from interference by coal mine operators, not on the ground that governments shouldn’t interfere with contract negotiations, which might be thought to follow from the concept of “liberty of contract,” but because they should be regulated by state law rather than federal law because “\[t\]he relation of employer and employee is a local relation. At common law, it is one of the domestic relations.” The Court also struck down the Agricultural Adjustment Act as being an unconstitutional extension of the power granted the federal government by the welfare clause, and a New York State minimum wage law for women, which it said interfered with liberty of contract. In 1935, after the NIRA had been declared invalid, Congress passed an even stronger bill, one that would give labor the government protection that it had long been seeking. The National Labor Relations Act (also referred to as the Wagner Act or the Wagner-Connery Act) was intended to diminish the causes of labor disputes, and their subsequent bad effects on interstate and foreign commerce, “by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” How did it intend to accomplish these things? By creating a National Labor Relations Board (NLRB) with the power to supervise union elections, to determine the appropriate collective bargaining units (unions), to then certify the chosen trade union, to determine that certain actions described as “unfair labor practices” had been taken and to hold hearings and take testimony about such practices, and to issue binding cease-and-desist orders on the basis of its findings, which were to be enforced by the courts. Unfair labor practices included not only any interference with attempts of employees to organize into unions, any discrimination against any employee because of union activity, and any refusal to bargain in good faith with the designated union, but also any interference in or attempt to influence union elections. The union could demand not only a “union shop” (in which any non-union employee must agree to join the union within a designated period of time) but a “closed shop” (where only union members may be considered for employment). In any case, once a majority of the workers in a business were union members, even if non-union workers could still be employed (an “open shop”), the employer was bound to deal exclusively with union representatives in setting all conditions of employment, and was further bound not to employ outside workers (scabs) in case of a strike. It was predicted that the Supreme Court might find this law an undue extension of the power to regulate commerce, as well as an interference with employers’ liberty of contract. But President Roosevelt had a trick up his sleeve that forced the Court into line. James F. Simon, in his 1980 biography of Justice William O. Douglas, _Independent Journey_, summarized what happened. The Court’s assault on the New Deal and similar attempts at social and economic reform at the state level naturally produced a fusillade of criticism. How could a handful of old men in black robes thwart the majoritarian will? It was a question asked throughout the country, but most importantly, at the White House. For Franklin D. Roosevelt, braced by the greatest landslide victory in modern political history, decided that he could challenge the Court’s work as they had his. The President’s Court-packing plan followed. FDR proposed that he appoint one new justice for every sitting justice over seventy; that would have given him six appointments and effective control of the Court. The justices looked on uncomfortably while the political debate over the Court’s fate raged. In the spring of 1937, one member of the Court majority, Justice Owen Roberts, changed his attitude and vote in several critical cases involving reform legislation. The Court was asked to rule on a state minimum wage law, not unlike the New York statute that it had knocked down only nine months earlier. This time, however, Justice Roberts voted with Justices Louis D. Brandeis, Benjamin N. Cardozo, Harlan F. Stone and Chief Justice Hughes to uphold the law. Two weeks later, an astonished nation learned that the same majority of five justices had upheld the constitutionality of the National Labor Relations Act. The modern Supreme Court, like its wiser predecessors, would have to announce its constitutional principles clearly but never without considerable respect for the political process. For the post-1937 Court, that meant that the justices would leave social and economic legislation — no matter how unwise they thought it to be — to the policymakers in the other branches of government. The primary constitutional mission after William O. Douglas took his place on the Court \[on April 17, 1939\] would be of a different sort — not to favor one economic or social philosophy over another, but rather to define the constitutional dimensions of civil rights and liberties. After years of suffering coercion, organized labor had achieved a place among the coercers. Henceforth it would be the businessman that would feel the full force of the law in any disagreement with the union. In the process of achieving this, it had been necessary to vastly expand the power of the federal government to regulate commerce, because, as Edward Corwin had observed, “planning means coercion for intransigent minorities — that at least — and if coercion is to be applied by the national government, it must usually be under the commerce clause.” This was the victory that was hailed by New Deal liberals as a triumph of what they saw to be the correct philosophy — one that might be opposed by “old men in black robes” or what Corwin called “intransigent minorities” (read businessmen), but not by any right-thinking people who had the interests of the working poor at heart. But was it? It was not widely publicized at the time, but there was another “intransigent minority” that opposed the National Labor Relations Act as it had opposed the regulation of wages and hours in the National Industrial Recovery Act before it — and not for conservative reasons. That minority was the black community. In a 1977 book, _Black Labor and the American Legal System (Vol.1: Race, Work, and the Law)_ Herbert Hill, for many years National Labor Director of the NAACP wrote: A significant aspect of the public controversy surrounding the passage of the National Labor Relations Act was the intense opposition of the NAACP, the National Urban League, and other Negro interest groups. The most important feature of the Act was taken from Section 7a of the National Industrial Recovery Act (which became Section 9 of the NLRA). This section established labor unions as exclusive collective bargaining agents through a process of governmental certification by the National Labor Relations Board. Because most of the unions affiliated with the American Federation of Labor either excluded Negro workers from membership (the United Mine Workers of America was the major exception), thus preventing their employment in union-controlled jobs, or engaged in other discriminatory practices, spokesmen for the black community vigorously opposed Section 7a. In fact, Mr. Hill reports, the union movement had a long history of trying to displace or exclude nonwhite workers. In 1890, the Brotherhood of Locomotive Trainmen demanded that the Houston and Texas Central Railroad replace all black workers by whites. In 1911, 10 black firemen were killed during a strike called to protest the hiring of blacks by the Cincinnati, New Orleans and Texas Pacific Railroad. Between 1882 and 1900 there were “at least fifty strikes by white workers against the hiring of blacks... the success of a number of them meant that blacks were effectively barred from almost all the higher paid skilled work in iron and steel manufacturing, in tobacco factories, and in other industries.” Samuel Gompers used his considerable influence to promote a doctrine of white supremacy, and also led anti-Oriental campaigns. Hill quotes Professor Frank E. Wolfe as saying that, during the late nineteenth and early twentieth century, “Negroes were seldom admitted into a union in any part of the country,” and also lists some of the unions that specifically listed being white as a qualification for membership — cigar makers, iron molders, carpenters, bricklayers and masons, machinists, typographers, locomotive firemen, and masters, mates, and pilots, among others. Those unions that did not exclude blacks often set up segregated black locals. “The existence of segregated locals and racial auxiliaries usually prohibited blacks from gaining knowledge of, and intervening in, the collective bargaining process,” writes Hill. Nor were such practices ended by the turn of the century. Hill recounts that Local 28 of the Sheet Metal Workers International Association removed a “Caucasian-only” clause from its constitution in 1948, under orders from the New York State Commission for Human Rights, but that 15 years later, not a single Negro had been admitted “to union membership and union-controlled employment.” And then the National Labor Relations Act was passed. Hill also quotes Raymond Wolters, writing in _Negroes and the Great Depression: The Problem of Economic Recovery_: > During the 1930’s several examples of trade unions using their power to force the dismissal of black workers came to the attention of Negro leaders, an experience which understandably served to confirm their original pessimistic suspicions. In Long Island City, New York, the Brotherhood of Electrical Workers, Local No. 3, organized several electrical supply shops, refused membership to the Negro workers already employed there, and used its newly won power to force the managements to discharge several dozen Negro employees. In Manhattan, some locals of the Building Service Employees’ Union demanded that employers discharge Negro workers and fill the vacancies with white unionists. As a result, several hotels, restaurants and office buildings were forced to discharge Negro elevator operators and restaurant workers and hire whites.... In St. Louis the depth of this anti-Negro sentiment was strikingly illustrated when all the AFL men working on the Homer Phillips Hospital (a $2 million hospital for blacks built in the middle of a Negro neighborhood) walked off the job and halted construction for two months in protest against the General Tile Company’s decision to employ a Negro as the setter. Examples such as this naturally made other contractors reluctant to hire black labor. These actions, it should be stressed, were effective precisely because the union’s power was enforced by the NLRB and, ultimately, the courts. As Herbert Hill sums it up, “Labor unions . . . derive their power to act as exclusive representatives of employees from federal law — that power is a consequence of government action.” As a result of this action, union members have become a privileged elite. According to Robert Crandall of the Brookings Institution, present salaries in the steel industry (one of the American industries that is in decline, partially due to its non-competitive costs in the international market) average $40,000 a year. Labor unions are formed to help their members, at least in part by excluding non-members. Their strong anti-immigrant and anti-Negro biases in the early days of their history were crude attempts to achieve this end—their later support of social legislation has been viewed by some as a more sophisticated program leading in the same direction. In a January 1981 interview in _Human Events_, for instance, Walter Williams, the black conservative economist, stated, “There is, unfortunately, an unholy alliance between blacks and labor unions, even though labor unions through a lot of their activities cause blacks to be unemployed. The unions support the Black Caucus and their handout programs, CETA, food stamps and the like, in return for black support of labor unions and even various of the labor programs that in effect exclude blacks.” It wasn’t the complaints of black leaders (who tried in vain to get the National Labor Relations Act amended to reflect _their_ interests before it passed), it was concerted action by the business community that secured the passage of the Taft-Hartley Act in 1947, which extended the coverage of the NLRB to include “union unfair labor practices” and limited unions in other ways, such as forbidding them to contribute to political campaigns and requiring them to disclose their finances to the public. But the best-known section of the Taft-Hartley Act is Section 14(b), which gives permission to the states to pass individual “right-to-work” laws—laws that outlaw closed and union shops. Despite attacks by union leaders, who called the Taft-Hartley Act a “slave-labor law,” and from friends of labor (such as Lyndon Johnson, who called for the repeal of right-to-work laws in 1965), there are now 20 states that have enacted such laws. Conservatives, and even some libertarians, support right-to-work laws as a counterbalance to the power given to the unions by the National Labor Relations Act. _Reason_ magazine, for instance, ran an article on the subject in May 1979: “Right to Work: What is it? Who has it?” by Thomas R. Haggard, which endorsed at least the tactics of supporting such laws because such support “necessarily involves exposing the underlying coerciveness of collective bargaining agreements and the federal laws that facilitate them,” although the article also recognized that many such laws impose criminal sanctions upon the parties, are applied indiscriminately to all union shop agreements, whether coerced or uncoerced (and to situations where an employer might want unilaterally to hire only union members), and “operate like any other so-called antidiscrimination statute.” Indeed, inherent in the very phrase right-to-work is the idea that the employer may not deny employment on some basis or other, whereas in a truly free society the employer offers employment, and should have a right both to refuse to hire a union member and to insist on hiring one. The worker offers his labor, and has a similar right to refuse to work for a specific employer—a right which may seem to be an empty one, until one considers that, without it, the worker is a slave. The employer has no “right” to labor, except by agreement. But the worker has no “right” to the job before agreement has been reached. Despite the “balancing” intent of Taft-Hartley, the NLRB has a long record of pro-labor decisions. In 1965, Stuart Rothman, former general counsel for the National Labor Relations Board, wrote an article for the May issue of _Nation’s Business_, entitled “Let’s Stop Labor Board’s Unfair Practices.” In it, he said, “Organized Labor’s leaders are having more and more to say about how you run your business as a result of National Labor Relations Board decisions. . . . They limit, for example, your right to:—Sell or close your business. . .” Sixteen years later, the situation seems unaltered. In April of 1981, the Supreme Court heard oral arguments in a case that sought to overturn the NLRB’s ruling that a company’s closing down of a losing part of its business was a subject about which it must bargain in advance with the union. The company protested that this involved “holding a plant hostage,” and claimed that, just as an employee has the right to quit, so “an employer has the right to quit as an employer.” But, sixteen years later, unions are also in obvious trouble. Union percentage of the total work force has been declining (from 28 percent just after World War II to 20 percent today), as has labor’s political influence. In one industry alone, the automobile industry, which has almost 200,000 unemployed members, it is anticipated (according to an article by Alexander Cockburn and James Ridgeway in the _Village Voice_ last April) that “\[o\]ver the next decade the autoworkers anticipate attrition of their work force by as much as 400,000 jobs, one third of the current union membership.” Runaway shops, which used to move to the South or the West where non-union workers could be found, are running overseas to countries whose standard of living is but a fraction of our own. More and more, unions in America are seen to be dinosaurs. The very government power that they have grown fat on has left them out of condition to deal with changing times, and they are exposed as being in large measure ineffective, and even corrupt. Union sympathizers are left with little to propose except stop-gap measures to hang onto power. In the December 6 issue of _The Nation_, for instance, Stanley Aronowitz suggested, after describing our many dying industries, “American unions and liberals should turn to the advocacy of a mixed economy. True, public ownership of dying industries merely socializes misery. But when public ownership is combined with public energy corporations that would provide adequate investment for solar and other renewable energy sources, as well as develop cheap domestic fuels, some of these plants could be saved for a long time.” So we are not getting to Heaven on our own power, as Corwin predicted—the path has led us to the point where we look forward to socializing misery. Perhaps the answer to the question with which I started this article—what is the difference between our unions and the Polish Solidarity?—is to be found in contemplating the effects of government power, and seeing that such power doesn’t only corrupt; it leads to stagnation. Who can feel inspired by the thought of socializing misery? The working man and woman of industrial America, without quite understanding what happened, have been moved from supporting self-reliance, the dignity of work, and opposition to government planning and enforcement of the status quo. Instead, they are expected to cleave to the most narrowly conceived and bureaucratically enforced self-interest, in the name of which they will try to get government power to preserve unviable and even obsolete factories for “a long time.” The only answer that bureaucrats know to the abuse of power is to counteract the abuse with more power, and that is the philosophy to which the labor movement in this country has delivered itself. Union. The very word is supposed to mean people together, agreeing and joining in supporting what they see as a common good. To all too many people, it now means make-work jobs, featherbedding, lowering of standards, special privileges for members who need do nothing at all to earn them, incompetence. Solidarity forever, certainly. But not propped up by government power—rather, standing against it. Joan Kennedy Taylor is senior editor of LR.