CERTAIN passages in the report of the Executive Council to the American Federation of Labor at its annual convention in Portland, Oregon, last October, were hailed by many persons as formal notice of intention to make American unionism an instrument of service for the whole community rather than an implement for the enforcement upon the community of the demands of a single class.
Henceforth the movement for the organization of the workers into trades-unions has a deeper meaning than the mere organization of groups for the advancement of group interests, however vital that function may yet remain. Henceforth the organization of the workers into tradesunions must mean the conscious organization of one of the most vital functional elements for enlightened participation in the democracy of industry, whose purpose must be the extension of freedom, the enfranchisement of the producer as such, the rescue of industry from chaos, profiteering, and purely individual whim, including individual incapacity, and the rescue of industry also from the domination of incompetent political bodies.
These statements in that ‘pronouncement of the aims of Labor’ are vague. They may mean much, or nothing. They are to be interpreted by the document as a whole. The Council denounces the Sherman AntiTrust Act as ‘a legislative monstrosity.’ The Transportation Act, the Kansas Court of Industrial Relations, and the Colorado Industrial Commission are ‘ignorant encroachments . . . blundering gestures . . . examples of what all industry has to fear.’ The ‘elimination of the Railroad Labor Board should mark the end of legislative efforts toward political invasion of the field of wage-fixing.’ The authority of the Supreme Court must be limited. The open shop is ‘un-American.’ In general: ‘While Labor now participates more fully in the decisions that shape human life than ever before, and more fully in America than in any other nation on earth,’ yet ‘our participation must gradually be brought to completion.’
This mystifying report deserves study, not so much for its indefinite references to the organization of industry for service, as for its implications that the powerful Federation feels the force of public opinion. The Executive Council fears that popular reaction against union arrogance, extortion, and tyranny may find expression in restrictive legislation to compel the reforms which Labor of its own accord does not effect. The report reads: ‘The threat of State invasion of industrial life is real.’ True: the thing here called an ‘invasion’ is ‘real.’ The industrial history of the last decade justifies the ‘threat.’
This Portland report does not seem to me to contain any positive pledges of reform. The more’s the pity, for legislation, however desirable and effective, never accomplishes all that idealists expect, and many abuses lie beyond the reach of law. Labor, for its own sake and of its own will, ought to institute certain reforms, and the greatest of these should be a change of attitude toward the open shop.
I endorse the open shop, as opposed to ‘the shop in which only members of the union claiming jurisdiction are allowed to retain employment.’ The one is consistent with the traditions of Americanism, the other is not. As I conceive the open shop, it violates no man’s rights, and it secures to all men equal opportunity to work. It does not deny the right to organize and to bargain collectively. The workers, through shop committees, may retain every advantage which the closed shop gives them as to the adjustment of hours and working conditions. The closed shop denies men the right to market their own labor except upon terms prescribed by private organizations, which maintain a monopoly of labor and refuse to tolerate any measure of public control.
For the enforcement of the closed shop the unions for many years have resorted to practices that outrage the common American instinct for fair play. Within a few months, in a county in New Jersey, by means of what the courts called an indirect secondary boycott, nine closed shops have tried to compel two open shops, doing the same type of mill work, to unionize. In the famous Danbury Hatters case the American Federation of Labor undertook to destroy the business of a manufacturer who conducted almost the only open shop in a city solidly unionized. More than half his men were members of the union, but he refused to make his a closed shop, affirming his intention to defend the rights of the men who for many years had worked for him. The unions thereupon caused spies to trail his shipments all over the United States and to prevent the sale of the products of his factory.
In the recent case of the Duplex Printing Company essentially the same secondary boycott, called by the unions a sympathetic strike, was exposed in the courts. A manufacturer of printing-presses in Michigan is to be compelled to unionize his factory. Certain organizations of machinists with headquarters in New York City, and the national body with which they are affiliated, combine to interfere with his interstate trade by boycotting his presses, especially in Greater New York. Customers are warned. The trucking company usually employed must not haul these presses. The repair shops must not repair them. The employees of buyers must strike to prevent their installation. An exposition company must not display them.
Again, in New York City, a few steamfitters, having tried for sixteen months to obtain admission to the union which naturally they would join, finally sought to work without affiliation, and the building-trades unions made common cause against them and combined to call strikes on all buildings on which they were employed. In one year a boiler-makers’ union disciplined seventy members by suspension for life, and many times that number for terms ranging up to ten years; which means that, under a universal closed-shop system, these men are automatically prevented from earning their living at their trade. Practices equally merciless exist in the United Mine Workers.
Mr. Samuel Gompers fulminates frequently upon the limitation of the right to strike as ‘slavery.’ But he refuses to pass any judgment upon the right to work—a question which he eluded several times in his debate with Governor Allen of Kansas. The United States Supreme Court has declared that ‘there is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more than the sacred right to labor.’ The unionist may insist that the value of collective bargaining depends upon its universal application, and that the progressive welfare of the working classes therefore is bound up with the closed shop; but certainly it is not wise to allow private and irresponsible combinations of craftsmen and laborers to consummate the compulsory organization of all industry. The infirmities of human character apply here as elsewhere.
On principle the open shop is easy of defense. A militant unionism maintaining a nation-wide closed shop made up of closed unions must become an economic, and probably a political, menace. The unions are private societies. They deny admission to many qualified candidates. They object to legal supervision and refuse to acknowledge any responsibility to outsiders. Yet they claim the sovereign right to decide who shall and who shall not be employed in industry. A journeyman denied membership in a union on one coast may not ply his trade on the other, or anywhere between the two coasts, although there may be thousands of locals scattered over the country. Several unions, the Big Four, or Railway Brotherhoods, among them, adopt a different policy. But fully one hundred unions insist upon that national closed shop, supported by strikes and boycotts, which seems to me incompatible with the spirit of American democracy. If limitations are to be applied at all as to the manner in which men may dispose of their labor, the general welfare requires that these restrictions shall be imposed by the Government, that the public shall not be exposed to the selfishness, indifference, or special needs of a class organization.
But how shall the open shop be established? There’s the rub! Public opinion should demand it. The nonunion men should make their influence felt in this direction, and by organization if need be. The ideal would be for the unions themselves to accept the open shop. They would gain thereby far more than they would lose. The same public opinion that obtained the elimination of the twelve-hour day in steel, and stopped at least one railway strike, can be depended upon to prevent the exploitation of Labor by any dictatorship of Capital.
Labor is not a weakling to-day. Unionized Labor without the closed shop would not need to call for help in maintaining its rights. As a practical matter, the unionists would be immensely benefited by a public demonstration of willingness to meet all their fellow laborers in free and open competition. When the union label shall stand for ability, integrity, fidelity, efficiency, skill, superior craftsmanship, the unions will have nothing to fear from competition. What they need far more than the closed shop is an enthusiasm for production that shall survive such a period of national stress and special inducement as that of the World War.
Contrary to the common impression, there is in existence to-day an abundance of law, tested and interpreted in the courts, by which labor unions, whether incorporated or not, may be held liable for damages caused by unlawful acts of their officers and members. The unions have earned much credit for securing a large body of humane legislation, but they have exposed themselves to cross-currents of bitter criticism and outbursts of popular indignation for their determined struggle to conquer by their own militant power the privilege of doing what the State alone must retain the right to do. Persistently they have sought to evade legal responsibility, while demanding the limitation of the injunctive process, the legalization of picketing, exemption from anti-trust laws, compulsory use of the union label, and other immunities and favors designed to enable them to enforce their will upon nonunion employees and employers. An imperium in imperio seems to be their ideal, and that doctrine may be read into the Portland ‘ pronouncement.’
The courts have stood in the way. They have vindicated for individuals the right to work and for employers the liberty to select their employees, refusing to endow the unions with what well has been called ‘an occupational license.’ The Debs and other decisions prevent combinations of employees from dictating how and where a public utility shall render service. The Danbury Hatters and the Bucks Stove & Range cases guarantee business and the public against the boycott. Labor obtained its ‘industrial Magna Charta’ by the inclusion in the Clayton Act of the declaration that ‘the labor of a human being is not a commodity or an article of commerce.’ The decisions in the Duplex and the Coronado cases reviewed that act in detail, and left the unions only a frail reed on which to depend for attaining their objects. In picketing cases the Supreme Court has tried sincerely to define the shadowy frontier where free speech and free intercourse merge into intimidation and obstruction. And in February 1922, the Federal Government proceeded by injunction against the uneconomic practices of the Bricklayers’ Union, charging limitation of output, rejection of open-shop materials, discrimination between employers, and collusion with contractors — a remarkable and significant action.
Thus, after a quarter-century, the situation is to-day. Labor has tried to find a way by law to compel unionization and to enforce the closed shop, and the courts have blocked these efforts. The long campaign has produced many protective advantages for Labor against greed; but the courts have stood faithfully by the inherent rights of the individual and for freedom of contract.
Now the argument for incorporation of the unions proceeds thus: The security of industrial rights and the safeguarding of the public welfare require that ways shall be established to assess responsibility upon any and all parties who interfere unlawfully with the common functions of industry. Power and accountability are correlative terms; collective management always should be yoked with collective responsibility. Such responsibility the unions systematically elude and disavow. No other human relationship is thus separated from the ordinary resort to civil process by which men seek to vindicate their rights and recover their losses. Commonly it is assumed that voluntary associations cannot sue or be sued, and that they therefore have only to refuse to incorporate in order to stay beyond the reach of the courts. For years the tendency has been manifest in this country to reduce the dimensions of this immunity and to hold the unions responsible in spite of their refusal to incorporate. The Hatters case held individual unionists liable in person and property. But far more significant is the unanimous decision of the United States Supreme Court in June 1922, in the case of the Coronado Coal Company against the United Mine Workers. In that suit, growing out of the violent opposition to the open-shop operation of some coal mines in Arkansas, the chief question debated was the suability of the union. The company argued for collective responsibility, and placed stress upon the language of the AntiTrust law, in which it was explicitly stated that the word ‘person’ included ‘association.’ The court ruled that under the law ‘such organizations are suable in the Federal courts . . . and funds accumulated to be expended in conducting strikes are subject to execution.’ Trades-unions were held to be legal entities, even if unincorporated. This case is again in the Federal courts, but no decision as yet contravenes the Supreme Court dictum that the actual existence of a union automatically imposes certain corporate attributes.
With these facts in view, the question of compulsory incorporation of labor unions may be considered. The present Supreme Court Justice Brandeis, whose liberal views are widely known, years ago was well within the facts when he said there was plenty of law in existence for holding unions accountable. Yet in his debate with Mr. Gompers he endorsed the incorporation theory, and advanced one argument hardly mentioned by other students of the problem. Labor action often is hasty, the expression of emotion rather than reason. ‘ I can conceive,’ he said, ‘of no expenditure of money by a union which could bring so large a return as the payment of compensation for some wrong committed by it. Any such payment would go far in curbing the officers and members from future transgression of the law, and it would above all establish the position of the union as a responsible agent in the community, ready to abide by the law.’
That last suggestion makes a strong appeal. Definite placing of responsibility is needed. A Labor covenant is notoriously liable to dishonor. Labor holds the right to strike to be superior to all other rights of all other men, and denounces the injunction as ‘a preposterous weapon of oppression,’ whereas Labor’s own inhumanity to other workers — nonunionists, technically ‘scabs’ — almost passes belief. Some injunctions go to ‘preposterous’ extremes, as that obtained by Attorney-General Daugherty against the railway shopmen. But that ‘government by injunction’ to which Labor so strenuously objects is due chiefly to the practical immunity which the unions have enjoyed as irresponsible bodies. While in great strikes much lawlessness often occurs of which no doubt the unions are guiltless, it would be vastly to their advantage if in open court they should establish the fact that habitual hoodlums had seized the opportunity to break the laws.
I concede that I am in doubt as to the advisability of compelling incorporation. The judgment of the highest Federal Court in the Coronado case will be likely to have much weight with the state courts. More than a dozen states now have statutes making voluntary associations liable for damages. Massachusetts missed ratifying such a law by a few hundred ballots in a referendum vote. Let it be remembered that men often accept incorporation as a privilege by which to secure limitation of liability in associations which they join but are not able closely to supervise. The state that issues the franchise exercises supervisory powers in the public interest. These two facts — the tendency to hold the unions liable and the protective value of incorporation — may coöperate to induce the unions voluntarily to seek incorporation.
Another device, favored by some whose opinions are entitled to respect, is illustrated in the bill proposed by Mr. Samuel Untermyer, the counsel for the Lockwood Committee, and included in its final report. The Committee recommended the creation of a State Trade Commission, and Mr. Untermyer proposed to place all tradesunions, whether incorporated or not, under its control. The plan recognizes all the fundamental rights possessed by organized Labor. It aims definitely to correct the iniquities exposed in the committee hearings. The unions were to be subject to official regulation as to their constitutions, by-laws, and rules. They must have a license from this Trade Commission, and the Commission would revoke the license whenever upon hearings it should be established that the union was practising the oppressive methods exposed in the Lockwood investigation, as restriction of membership, limitation of apprentices, assessment of prohibitory fines, obstruction of the right of free contract, and many more.
It may be that this proposal involves an excess of supervision. The ideal should be no more regulation than the public welfare requires; but the necessity of some regulation cannot be denied. The Lockwood Committee did not go along with its counsel on this proposal, but expressed the hope that the unions themselves would put through the necessary reforms. Events have not justified this hope.
Some method of supervision and fixing of responsibility needs to be devised, which shall operate generally, and almost automatically, so as not to make an employer or other citizen who stands by his legal rights a conspicuous object of public attention. In the building trades, in which labor conditions in most of our great cities are as bad as they well can be, a contractor will submit to enormous injustice rather than have ‘trouble’ with the unions. He does not wish to become a marked man. Being human, he takes the easy way. He submits rather than fight, knowing that, even if he wins, the unions will find ways to hamper, boycott, and ostracize him. He might put on a braver front if he had to pay the costs entailed by submission; but of course the owner, and ultimately the owner’s tenants, must foot the bills. From this point of view a good deal may be said in favor of some form of state licensing and regulation.
Granting that strikes at times have paid big dividends in social and economic welfare, and that under the present industrial system the right to strike is essential for the protection of Labor, it still will be granted that the strike should not be the first but the last means employed to obtain what Labor desires. Something should come before the strike. In my judgment that thing should be compulsory investigation, not compulsory arbitration. The latter requires both parties to submit to arbitration and compels both to accept the award. The former does not require of the employer the abandonment of the right to lockout, or of the employee of the right to strike, nor does it compel acquiescence by either in any award.
Few of us realize even now the magnitude of the strike evil. In the twenty months of America’s actual participation in the war, the total number of labor strikers in this country was 2,386,285; the number of men sent to France was only 2,053,347. An incomplete computation shows for the year 1919 strike losses in wages of $723,478,300 and additional industrial losses of $1,266,357,450 — an average of $100 for each American family. From 1881 to 1905 the United States had 38,303 strikes and lockouts, an average of 1532 a year. The total for 1916 to 1918 was 11,430, or 3810 a year. There has been some reduction since, but the average is still high.
Several countries have undertaken to deal with the strike by compulsory arbitration.1 New Zealand was prematurely hailed as ‘the country without strikes.’ The law, passed in 1894, requires the registration of unions and employers’ associations, thus in effect making them corporate bodies and subject to the jurisdiction of the conciliation boards and the Arbitration Court. In 1905 strikes and lockouts were made statutory offenses. The plan has operated to multiply greatly the number of unions. So long as it functioned as an implement for increasing wages, Labor warmly supported it. When, however, wage-increases ceased, Labor became impatient and rebellious. The law offers the unions an easy way to avoid the consequences of regulation by cancellation of their registration.
Recent changes in this much-amended Act have tended to stress its conciliatory and voluntary features. The awards usually contain a ‘preference clause,’ which tends practically to compel the workers to unionize. The Conciliation Councils, however, with all parties around the same table, and each party at times in private conference with the Commissioners, for informal discussion, without legal machinery of any kind, are peculiarly attractive. If a deadlock results, then the issue goes automatically to the Arbitration Tribunal; as a rule the parties prefer to settle their own differences.
Nor has Australia found a panacea in compulsory arbitration. Unionism is very strong there and acts through the official Labor Party, which has four times controlled the Commonwealth Government and often the State governments. Severe as the law is, numerous strikes occur; and the tendency to substitute special tribunals for dealing with specific disputes caused the President of the Arbitration Court to resign, in 1921, at the end of his second term of seven years, when he affirmed these tribunals to be ‘a convenient method of yielding to a strike without admitting it.’ Three years ago the Commissioner from Australia to the United States declared that ‘Compulsory arbitration has proved futile in preventing strikes’ in his country; and a few months ago an Australian authority asserted that the system had caused ‘almost intolerable confusion.’ The two machines overlap and duplicate. Australia has ‘the most elaborate and complicated system of industrial legislation’ of all countries but it has not produced industrial efficiency.
The plan is neither expedient nor desirable. Many things may readily be tried in countries with no written constitution which may be difficult, if not impossible, in the United States. One may deprecate the autocratic injustices practised by the unions, and yet object to compelling Labor to work against its will in private industry, and to making it obligatory upon an employer to retain a worker whom he does not wish to employ, only in order that agreements for stipulated periods should be enforced. When workers may not strike, they sometimes substitute sabotage for suspension. Probably it is not generally remembered, however, that the Supreme Court has once affirmed the authority of Congress under certain conditions to compel arbitration. This case, Wilson vs. New, was designed to test the validity of the Adamson eight-hour law. The Court, by a five-to-four decision, declared Congress ‘undoubtedly’ to possess ‘the power to provide by appropriate legislation for compulsory arbitration, a power which inevitably resulted from its authority to protect interstate commerce in dealing with a situation which was before it’ — in reference, of course, to the imminent railway strike.
The most attractive method of dealing with strikes is now in use in Canada. The Industrial Disputes Investigation Act was passed in 1907, after a long and bitter coal-strike, as a compromise between conciliation and compulsory arbitration. Mr. Mackenzie King, at the time Deputy Minister of Labor, stated the underlying principle thus: ‘In any civilized community private rights should cease when they become public wrongs.’ The smallest possible amount of compulsion is brought into play in the working of this law. It forbids under penalty the declaration of a lockout or strike pending investigation; but either becomes legal once the investigators have rendered their report. The theory is that the public has a right to know the issues and the facts in an industrial dispute, and that this information should be given out before the actual clash occurs. The boards which function under this law contemplate primarily investigation with publicity as their immediate weapon, and amicable adjustment as their ultimate aim. The parties may strike if they choose after the Board has performed its duty; they may reject any award; but at any rate an opportunity will have been provided for calm reflection, intimate discussion, and the mobilization of informed public opinion. The Act describes the affected industries thus: ‘Any mining-property, agency of transportation or communication, or public-service utility, including, except as hereinbefore provided, railways, whether operated by steam, electricity, or other motive power, steamships, telegraph and telephone lines, gas, electric light, water, and power works.’
The Act does not otherwise define that difficult term ‘public utility.’ The machinery of the law starts moving only when one of the parties to a dispute applies for the appointment of a board; but if both parties in an industry not named in the law ask for an investigation, a board may be named in such cases as well. A separate board serves in each case. Applications go to the Minister of Labor. If he finds that the law should be applied, a board of three is constituted, one each on nomination of the employer and the employees, and the third on selection by the two, or appointment by the Minister. When constituted, the board must do its work without unnecessary delay. But the whole theory is that sufficient time will elapse to prevent precipitate action and to permit the full force of public opinion to be exercised. Heat cools. Facts unknown to one party or both are brought to light. The Act has operated best in cases involving unionized Labor, A United States Commissioner of Labor has said: ‘It is difficult to see how its provisions could be carried out with any degree of satisfaction except in cases where organized employees are dealt with.’ Severe penalties are imposed for suspensions during investigations, but the penal provisions have rarely been invoked, even in case of an illegal strike.
How has the method worked? Between April 1907, and April 1922, applications for a board numbered 558, and the number of strikes not averted or ended was 34. For the year ending with March, 1922, the applications were 54, boards were established in 33 instances, and only one strike was not averted. But these figures of course bear only upon cases of voluntary request for a board, and the purpose of the law is to prevent strikes. The strike statistics of the Dominion disclose that mining labor, notoriously hard to control, has not been stabilized by this law. There have been many and serious disputes in this field. Other industries show much more encouraging results, and the loss of time by strikes has been greatly reduced. The Minister of Labor said in 1920 that in fourteen years there had been but one serious dislocation of train service, almost complete absence of streetrailway strikes, and no interruption of telegraph and telephone service, and that in general the Act had been of ‘great public benefit.’
This plan, somewhat modified, may well be tried in the United States. President Wilson asked Congress for the necessary legislation in August 1916, and again in the following December he ‘very earnestly renewed’ the recommendation, conceding that the right to strike must be retained inviolate, but pleading the predominant right of the public to be protected ‘against the challenge of any class,’ and suggesting that all arbitral awards be made ‘judgments of record of a court of law, in order that their interpretation and enforcement may lie, not with one of the parties to the arbitration, but with an impartial and authoritative tribunal.'
The President, no doubt, was well acquainted with the efforts Congress has made for voluntary arbitration — the law of 1888, the Erdman Act of 1898, the Newlands Act of 1913. The first applied to interstate transportation, and contained no provision for enforcing awards; no arbitration board ever was constituted under its provisions. The second applied to train service, providing for mediation on request of one party to a dispute and for arbitration on request of both parties, and for awards that should be ‘valid and binding.’ The third amended the second, and contained no mandatory features. Under the Erdman Act an award was made in an important case; but neither side was satisfied, and only public opinion checked a serious strike. After a few months the Board was reconvened to interpret its decision. The Newlands Act did not prevent the crisis which Congress eluded by enacting the Adamson Act.
Senator Cummins had these facts in mind when he included in the Transportation Act as it passed the Senate a provision for compulsory arbitration of railway labor disputes. The House refused to concur, and the Act now provides for local adjustment boards, and a National Labor Board as an ultimate arbitrator, with only an appeal to public opinion as the enforcement power. Labor has been vehement in denunciation of this agency. The Federationist talked about ‘a blind, tottering wreck of an idiotic experiment.’ Mr. Gompers advised the unions to refuse to appoint representatives to the Board.
The State of Colorado has an Industrial Commission created by the Industrial Relations Act of 1915, and Kansas has its much-discussed Industrial Court. The Colorado law may have been inspired by the experience of Canada. Notice of changes in hours and working-conditions in industries affected by a public interest must be made by employers and employees to the Commission thirty days in advance of their actual coming into being, and the Commission employs the interval for investigation. Suspensions are not legal until this period has expired, although individuals may quit their employment. Awards and findings, to become binding, must be accepted by both parties. It is the thirty-day hiatus that saves the state from many serious disturbances. The policy of the Commission has been to try by informal conferences to adjust difficulty.
As the direct consequence of a coal strike the Kansas Court of Industrial Relations came into being. Governor Allen objects to the idea that the court means compulsory arbitration; it ‘adjudicates’ difficulties in such industries as transportation, fuel, and public utilities. This well-intentioned experiment is entitled to a fair trial, and the trial should extend over a period of years. It goes to lengths hitherto unheard-of in this country; it includes as affected with a public interest such industries as food and clothing, which ought not to have been included. An experiment in a state predominantly agricultural may not furnish a criterion of value for an industrial state. Labor emphatically rejects the experiment. ‘The state of the parading and rampaging farmer proposes to put chains on the workingmen of factories and mines.'2
Against this background, consider the idea of a modified compulsory-investigation plan for the United States. The temporary boards of the Canadian system should be replaced by a board or boards of a more permanent character, qualified by experience and exact information to deal with such highly technical questions as must emerge in altercations pertaining to wages. Mr. Samuel O. Dunn once offered this definite illustration of the way such a board might be constituted for adjusting railway disputes: a permanent chairman, preferably an army officer, who would become expert by long tenure; and, to be designated for the occasion, a member of the Interstate Commerce Commission, a member of the Federal Trade Commission, a representative of the employers, and a representative of the employees, presumably equipped respectively with a ‘broad knowledge’ of the railway situation, business conditions, the point of view of both Labor and the railroad.
The success of any such enterprise would seem to depend upon the ability and fairness of the inquiry board, the tact with which it performed its duties, and its skill in obtaining the confidence and influencing the attitude of the parties to the dispute. Thus the law might be ideal; its success would depend upon such human elements as these. No strike should be called and no strike vote taken until after the board should have reported; and any strike vote then taken should be by ballot, when each voter should be furnished, with the ballot, with a short statement of the findings of the board, prepared by the board itself.
But what of industries not ‘affected with a public interest,’ the great building industry, for example? The Government has widened its field of supervision enormously in the last fifty years, but Government supervision ought not to swallow up and destroy private enterprise and personal initiative. When an industry disturbs the public peace or hinders public welfare, does the public interest acquire a claim which the State must recognize? When a business invokes the protection of the State, does the community at large obtain a right to regulate in any degree the manner in which the business shall be conducted? No student of the Lockwood investigation can doubt that conditions in New York City justify fairly the contention that building does at times become affected with a public interest within the meaning of the phrase as commonly used. Arbitrary interference with construction to an extent detrimental to the health and morals of the people was shown. The State passed rent laws which restrained the right of contract as between landlord and tenant. The housing shortage produced the conditions that the State sought to relieve, as well as the opportunity for scandalous profiteering.
Something surely can be said for the view that an industry designed to alleviate such a situation has a public interest. But is it sufficiently thus affected to come within the purview of compulsory investigation? A nice point. If not, what can be done to reform this industry? Two resources suggest themselves — the open shop and legislation against the sympathetic strike. Why, on account of some difficulty affecting a single union, all the men of a score of other unions should be ‘ pulled off’ a building passes comprehension. And what justification can there be for calling out all the unions on a job in order to enforce the closed shop in a single union?
A chief cause of the evils in the building trades is the arbitrary and exaggerated allocation of work among scores of affiliated unions and the enforcement of these allotments by jurisdictional strikes. The industry above all things needs all-round craftsmen who shall be available in large operations for many phases of work. Why should not any member of any recognized union do any sort of work on any building, provided he is paid the rate prescribed in the scale for that operation?
In conclusion, let me make these observations. A long chapter might be written upon the participation of employees, through their representatives, in management problems which affect the toiler, under such plans as those now working satisfactorily in the Bethlehem Steel Corporation and the Dennison Manufacturing Company. And — the rank and file of Labor have been shamefully exploited by many of their leaders; men who make ‘trouble’ to justify their own existence; who look upon industrial clashes as a means of personal exploitation; and who object, for selfish reasons, to regulatory measures. The unionists tolerate an autocracy of officials who know that industrial peace is a menace to their own tenure of power, and many of them take graft from ‘Big Business,’‘splitting the loot.’ May the day not be far distant when reformers shall appear inside the unions!
Much water has passed under the bridge since Horace Mann, Wendell Phillips, and Robert Rantoul took the side of the journeymen when the merchants of Boston tried to check an ‘unlawful combination of workmen’ to obtain better wages and a ten-hour day. To-day Labor does not need, and would resent the intrusion of, such men in aid of its cause. The time has come for Labor to talk less about its rights and more about its duties. Significantly, the one hundred unions which drew up a bill of rights in 1921 elaborated a long list of specifications as to what the community owes to Labor, and said nothing whatsoever as to what Labor owes the community.
Lastly: the great solvent, the effective force, is public opinion. Upon occasion the public can and does vindicate its mastery. The railway men stayed at their posts in November 1921, not from any spirit of unselfish consideration of the general welfare, but simply because their leaders saw that to allow the strike to go forward would outrage the moral sense of the nation. The necessary machinery will arrive when the public really decides that it must arrive. And so we get back to the basic difficulty of all public reforms — the difficulty of rousing a great multitude to anger, and keeping it angry, until something really worth while has been accomplished.
- Legislation limiting the right to strike exists in twenty-two countries.↩
- The author of the law, a former justice in this tribunal, says that the recent decision of the Supreme Court in the case of the Wolff Packing Company does not ‘declare the Act, or any vital section of it, unconstitutional.’ The decision in effect means that legislation cannot interfere with the right to strike except where public emergency exists or when an industry affected with a public interest is involved. — THE AUTHOR.↩