The labor policy of the free society

352 Pages·1957·16.936 MB·English

by  Petro, Sylvester

THE LABOR POLICY
OF
THE FREE SOCIETY
by
SYLVESTER PETRO
PROFESSOR OF LAW
NEW YORK UNIVERSITY SCHOOL OF LAW
THE RONALD PRESS COMPANY • NEW YORK
Copyright, (c), 1957, by
THE RONALD PRESS COMPANY
All Rights Reserved
The text of this publication or any part
thereof may not be reproduced in. any
manner whatsoever without permission in
writing from the publisher.
5c
Library of Congress Catalog Card Number: 57-6822
PRINTED IN THE UNITED STATES OF AMERICA
To
LUDWIG VON MISES
and
WILLIAM WINSLOW CROSSKEY
Since that moment when man first looked upon himself and
saw the image of God, he has struggled against all the powers
of nature and the supernatural, and against all the tyrannies
of his fellow man, to fulfill the promise in that image. He
has lived to the full, in pleasure and pain, the gregarious life
to which half of his instincts and appetites committed him.
And in response to the other half, he has striven in every
element on earth, in the skies above the earth and in the
waters under the earth, to express himself as an individual.
—Whitney Griswold
PREFACE
I have two objectives in offering this book to the public. I
wish to define the essential features of the free society, and to
advance certain proposals in the field of labor relations. These
two objectives have, as it seems to me, many things in common,
not the least of which is their common relevance to those promi-
nent current problems which set our era apart in history. While
we speak frequently of the free society, there is reason to believe
that its essential nature is not clearly perceived by all its pro-
ponents. Yet we ought to know what it is that we proclaim and
espouse when we oppose communism, fascism, and totalitarian-
ism. I have, therefore, attempted here to restate and to reaffirm
in the modern context the structural elements of the free society.
As it happens, such a restatement also serves well as a standard
with which to measure the labor policy of the United States.
For I assume that our labor policy, like all our policies, should be
the policy appropriate to a free society.
No part of the world of action or ideas lies closer to the central
issues of our times than do the problems and conflicts in labor
relations. It does not matter how one describes the great current
issues. One may say that the heart of the matter lies in the con-
flict between individual freedom and the increasing activity of
the state; or in the autarchic tendencies of so many nations; or in
the struggle between limited government and totalitarianism; or
in the subordination of the rule of law to executive authority.
Others may think that the foremost problem of our age is posed
by the poorer citizens and peoples who wish to share the wealth
of the richer citizens and peoples through forcible means when
others fail. There are those who insist that the most pressing
problem of the times is that of creating an effective and endur-
ing international order, the great society of nations.
Regardless of the manner of statement, labor relations affect
VI PREFACE
or are a more or less intimate part of the great world problems.
I have tried here to provide a means of understanding the rela-
tionship between some of the key problems in labor relations and
the forces in the world which have brought about the present
state of affairs. For labor relations are the world of today in small.
Studying this field, we shall see all the distortions of truth and
history so characteristic of the modern world. Thus the common
version of our labor law history casts the labor union in the role
of the victim of enterprisers and their alleged servitors, the
federal and state judiciaries. We hear repeatedly that for most of
American history the working man committed a crime in joining
a union; that the law discriminated against labor unions; that,
until very recently, scarcely a strike could be called without
having a court issue an injunction against it; that without unions
the individual working man is a mere pawn and always treated
as such by employers; that the courage of union officials is the
only force which stands between workers and exploitation.
Some of these allegations of the current orthodoxy cannot be
dealt with by resort to historical fact. That workers are absolutely
dependent upon union representation; that only union leaders
stand between workers and exploitation—these are theoretical,
hypothetical arguments which cannot be either proved or dis-
proved solely on the basis of fact or history. Since they are theo-
retical assertions, they can be dealt with only in terms of logic
and theory. And so the first part of this book attempts to estab-
lish a set of standards against which arguments on the question
may be judged in a more satisfactory way.
A straightforward account of the facts of our labor law history
will suffice to dispel the factual inaccuracies in the remainder of
these allegations. As we shall see in the following pages, there
is little or no authority for the proposition that it was at any time
illegal for workers to form and join unions. On the contrary, the
best and most reliable authority has recognized the legal right to
form unions for more than a hundred years. We shall see that,
far from discriminating against unions, the law has struggled in-
effectively—up to the very present—merely in the attempt to
bring trade unions within the juridical structure, so that the
same rules could be applied to them which apply to all other
persons and entities in society. We shall see that the peaceful
PREFACE Vll
strike for higher wages or better working conditions has always
been privileged in the United States; and that here, too, the
legal situation has been exactly the opposite of what our history
says it was. Unions have always had a specially privileged
status. Finally, we shall see that, not unions, but nonunion men
and employers have been denied adequate legal protection
against coercion and violence. Correction of the historical record
is one of the main objectives of the second part of this book,
where an attempt is made to present as briefly as possible the
major features of current labor law and policy in the United
States in an accurate historical perspective.
The author shares the convictions that a free-market, private-
enterprise, private-property civilization is the best guarantor of
the well-being of every man, including workingmen; that well-
run unions can help the operation of a free-market economy and
in this way can add to the well-being of workers; that badly
operated unions, while they cannot by themselves destroy the
free market, may make it function poorly enough, or by ill-
advised propaganda bring it into such disrepute as to provoke its
gradual and unconscious abandonment, piece by piece.
Holding these convictions, the author urges the correction of
the antisocial practices of trade unions. Fortunately this is a
thing which can be done—it is a job for legal institutions already
in being and for laws which are well understood.' No great new
administrative agencies, no complicated new codes, are necessary.
It is necessary only to apply to unions, with adaptations made
necessary by certain of their special characteristics, the same laws
and legal institutions which apply to everyone else in a well-
run, free society. Today, the progress of civilization requires
that unions, with their capacity for good, be brought fully within
the family of constructive, law-abiding citizens. The third part
of this book offers proposals for a code of labor laws consistent
with the goals and methods of a free and productive society.
X- * *
This book is dedicated to the two most remarkable contem-
porary thinkers of my acquaintance, William Winslow Crosskey,
Professor of Law at the University of Chicago, and Ludwig von
Mises, Professor of Economics at New York University. The
Vlll PREFACE
greatest product of the tradition which Crosskey symbolizes is
the Constitution of the United States. The product of the tra-
dition Mises represents is the market economy. From these two
men and their antecedents, from the Constitution of the United
States, and from the market economy have come the ideas which
I have attempted to put together in elaborating the theory of the
free society and in making the labor policy proposals which are
to be found in Part III of this book. To these sources I must add
those countless judges in England and America, living and dead,
who, in writing reasoned opinions in the cases they have decided
over the centuries, have been developing the most extraordinary
instrument of reason that the world has ever known—the com-
mon law.
Sylvester Petro
New York
January, 1957
CONTENTS
Part I
The Free Society
CHAPTER PAGE
1 SOCIETY AND THE GOALS OF MAN 3
2 FREEDOM, WELL-BEING, AND SECURITY 10
3 THE BASIC INSTITUTION OF THE FREE SOCIETY:
PERSONAL FREEDOM 24
4 OPERATING PRINCIPLES: PRIVATE PROPERTY AND
FREEDOM OF CONTRACT 37
5 PROPERTY RIGHTS, HUMAN RIGHTS, AND THE STATE . . 53
6 VOLUNTARY ASSOCIATIONS AND THE STATE 71
7 TRADE UNIONS IN THE FREE SOCIETY 97
Part II
Evolution of Labor Law and
Policy in the United States
8 EVOLUTION OF LABOR POLICY: THE PRINCIPLE OF
FREE EMPLOYEE CHOICE 125
9 FREE EMPLOYEE CHOICE AND EMPLOYER COERCION . . 138
10 UNION ORGANIZATIONAL METHODS AND THE FREE
CHOICE OF EMPLOYEES 149
11 THE LAW GOVERNING UNION ORGANIZATIONAL METHODS 160
ix