The Law and Labor

I

IN the early stages of the recovery, the problems that faced the employer and the worker were related to employee representation in collective bargaining.

The government and the American Federation of Labor supported the theory that collective bargaining could serve the worker only if the workers were organized independently — not merely independently of the plant in which they were employed, but altogether without any association with the employer. The ‘outside union,’ whether organized vertically or horizontally, was, in effect, recognized as suitable by those who composed the NIRA and the Wagner Act.

On the other hand, most employers of labor and many workers resented or objected to or distrusted the highly organized, expensive, strike-funded labor unions, and offered in their stead an employee representation plan or a company union or some device for collective bargaining on a plant basis in which the worker and the employer coöperated.

It must be accepted, in retrospect, that most of the thinking and planning and organizing of that period (1933 to 1936) represented a sincere and serious desire to find a road to a harmonious settlement of differences of opinion and desire between the employer and the worker. The essence of thought and action was that labor disputes should be settled within the law; that the law should be clearly defined; that none but legal means should be employed. This emphasis on the law reflected not only the theory of compulsion in such an act as the NIRA but also a spirit of voluntary sacrifice of position after the misfortunes of the depression.

The new labor laws substituted for the voluntarism of American tradeunionism the Fascistic principle of compulsion. Whereas, in the past, the Department of Labor had offered its conciliation services to be accepted or rejected, under the NIRA and the Wagner Act the dominant note was compulsory recognition of a government-favored labor organization. Neither the wnrker nor the employer would have been able to withstand this compulsion had it not been for the Schechter Decision, which voided compulsion and threw industrial relations back into voluntarism. However, the National Labor Relations Board again sought to restore compulsion, and that important question is now for the Supreme Court to decide.

This struggle between voluntarism and compulsion remained on a lofty level of peaceful difference of opinion within the law. The test of validity of government fiat was in the courts. Management, labor, and the government abided by their decision. The contest was not over the authority of Law, but over particular provisions of a particular law.

Then John Lewis stepped into the arena. He first contested the fundamental principle of trade-unionism, that dual unionism is impossible. When a large majority in the convention voted against his leadership, he organized a conflicting organization, the Committee for Industrial Organization, and challenged the authority of the A. F. of L. It is interesting to note the tone of this particular action, because we have here an unwillingness to trust to the majority, to submit to rules and regulations, to abide by the results of a vote.

Having split organized labor wide open, John Lewis proceeded to establish C. I. O. nuclei in the mass-production industries — in steel, automobiles, rubber, glass, electrical equipment, and their allied industries.

Only in electrical equipment — that is, in radio manufacturing and its various allies — did he succeed in establishing his authority prior to the General Motors strike. In the other mass-production industries he succeeded only in creating a sufficiently large support, in the general neighborhood of 20 per cent, so that he could tie up the industry even if he could not organize it. Of course he had the financial support of his own unit, the United Mine Workers, and of the three needle trade unions — all of them wealthy and effectively organized.

The first major enterprise of John Lewis in this new field was the General Motors Strike, and if that drama is to be understood in its broadest significance it is necessary to study it from the standpoint of its relationship to the law.

For whether General Motors or John Lewis won is a matter which only time can confirm, but that precedents have been set for lawless action, particularly on the part of public officials, cannot be left to time. Those lawless¹ acts of themselves may appear to lack significance as compared with the fact that mass bloodshed was averted; but the imprimatur of government on lawlessness must result not only in imitative lawlessness but also in new forms of lawlessness justified by the steps taken in the General Motors strike.

It is therefore upon the law and the administration of the law that this article is focused, and even at the risk of repeating what some may regard as a well-worn story it is necessary to recapitulate the principal facts of that strike and its settlement.

II

During the last quarter of 1936 a number of strikes occurred systematically in ‘feeder’ plants of the automobile industry — that is, in plate glass, electrical accessories, and so forth.

It must be noted at this point that mass-production industries differ from other forms of manufacturing and from the services in that in mass production the continuous flow of raw materials and partially fabricated goods must not be interrupted at any point, lest the entire productivity of the plant cease. A strike, then, in a feeder plant or in any one division of a producing unit is likely to have the effect of a complete cessation of work.

On November 18, the strikes in the feeder plants were followed by a sitdown in the Fisher Body plant in Atlanta. A similar sit-down took place on December 16 at the Fisher Body plant in Kansas City. On December 18, John Lewis announced that he would demand a national collective bargaining agreement with General Motors.

This announcement brought the Committee for Industrial Organization officially into the situation. The asserted authority of the C. I. O. could not be checked by any ordinary process of inquiry among the workers. The Wagner Act provides for an election among the workers, conducted by the National Labor Relations Board, but no labor union resorted to this device, which is, at present, the law of the land.

The last time automobile workers had indicated their own decision with regard to collective bargaining was in 1935. In that year sixty-three nominating elections and sixty-two final elections were held under the supervision of the Automobile Labor Board,² the chairman of which was Professor Leo Wolman of Columbia University. In this election 89 per cent of the automobile employees actually at work voted.

The election showed that 68.6 per cent preferred no affiliation; 8.6 per cent designated the American Federation of Labor as the collective bargaining agency. The C. I. O. was then not in existence.

The C. I. O. claims to be the successor to the American Federation of Labor in the automobile industry. But the A. F. of L. unions in the automobile industry contend that this is not a just claim. The C. I. O. has never stated the number of members in its Union of Automobile Workers.

It can only be assumed that the 8.6 per cent of the workers which the A. F. of L. could once prove that it had has been increased because of the intensive activity of the C. I. O. But increased how much? Who knows?

General Motors, then, had to form decisions either on the basis of its own assumptions as to the wishes of its workers, founded on the Wolman elections, or on the basis of John Lewis’s contentions as to the wishes of the workers.

Charles P. Howard, secretary of the C. I. O. and president of the Typographical Union, a man of probity and character, in a debate with me in the Town Hall in New York said: —

There is hardly an employee of the General Motors plant who cannot be coerced by foremen, by supervisors, or by some agent in the employ of General Motors Corporation. We could enroll 80 per cent of the employees of the General Motors Company. If announced that a vote will be taken in a week or ten days that 80 per cent can be reduced to less than 20 per cent through coercion.

That figure of 20 per cent is in line with a general assumption that the C. I. O. would get about 15 per cent in such an election. It is Mr. Howard’s fears and these general assumptions which undoubtedly account for the suspension of the Wagner Act — the law governing this particular problem.

General Motors assumed on this basis that the C. I. O. represented a minority of the workers and that, although that minority enjoyed rights, it did not enjoy the right to speak for all the workers. This attitude was reflected in a statement to General Motors Employees, signed by Alfred P. Sloan, Jr., president, and issued on January 5. Mr. Sloan said: —

1. General Motors will not recognize any union as the sole bargaining agency for its workers, to the exclusion of all others. General Motors will continue to recognize, for the purpose of collective bargaining, the representatives of its workers, whether union or non-union.

2. Work in General Motors plants will continue to depend on the ability and efficiency of the worker — not on the membership or non-membership in any labor organization whatsoever. This means that you do not have to pay tribute to anyone for the right to work.

III

Immediately after the Christmas holidays, strikes developed in many General Motors plants, with an intensification of the sit-down in Flint, Michigan.

The principle of the sit-down is not new. It is a development of sabotage which used to be advocated by the syndicalists, anarchists, I. W. W., and which has been practised in many countries. Chinese workers have for ages struck by folding their arms on the job; Chinese merchants effect great political changes by putting up the shutters of their shops. The recent election of Premier Blum of France was accompanied by a series of sit-down strikes in French factories.

The novelty of the current form of sabotage is that a small group of workers actually seizes the property of the employer. In the Goodyear, Goodrich, Bendix plants, and in many other enterprises, this form of sabotage has been practised.

The seizure of the property of the employer does not require the participation of a large number of workers. Consider the recent sit-down of seventeen men in the mixing room of the Goodrich plant in Akron. These seventeen men threw 10,000 out of work. Their action was not. approved by their fellow workers. It was not approved by the labor union. It was not even approved by all the workers in the mixing room. Yet seventeen men were able to close down a plant for several days.

Mass-production industries cannot defend themselves easily against this device except through the enforcement of the law protecting property rights. As it is impossible for a mass-production industry to operate a part of a line unless there is a continuous flow of raw or semi-fabricated goods, the employer is at the mercy of a sit-down group; and when that is a fractional minority the worker is also at its mercy. If the law does not function, there is no way of ending a sit-down except by compromise or the forcible expulsion of the sit-downers on some legal basis.

Under the law, the normal remedy in such a procedure is for the owner of the property to appear in a court of law to seek relief in accordance with the law. These measures General Motors proceeded to use on two occasions. The first injunction apparently fouled because it was found that the judge who issued it was a General Motors stockholder. But on the second occasion a restraining order was issued by the court in language and under circumstances which permit of no misunderstanding. Judge Paul V. Gadola in this injunction said in opening: —

This proceeding involves a simple legal question that would be of relatively little importance except to the litigants involved, other than that it is of great public interest because of the relationship existing between the parties litigant at the present time and as they affect the general public and welfare of all of our people. The question involved is solely as to the right of the defendants to occupy the premises involved in this litigation described in the amended bill of complaint of the plaintiff.

And the Judge closed with the following order:—

It therefore follows that the relief asked for by plaintiffs in this action must be granted. The injunction shall be issued out of this court commanding the defendants that have appeared, and all defendants, and all persons operating through, under or by virtue of any contact with these defendants, to evacuate the premises in question, and further that they shall be restrained from picketing the plants of the plaintiff.

This order further provides that the Sheriff of this county shall read the order of this court in the premises described to the parties therein, and that shall be sufficient notice of the order of the court to all parties involved. And further providing that the evacuation shall be done within twentyfour hours from this time.

The decision was later read to the strikers by the Sheriff. This order was disobeyed. It has, in effect, been suspended. According to the best information available, it was suspended by order of the Governor of the State of Michigan. A further court order involving the arrest of certain persons has also been suspended. The suspension of a court order by the executive is an unusual procedure, setting a precedent which may be applied to matters unrelated to labor problems. The Governor’s excuse is significant. He sought to avoid bloodshed. He believed that the operation of the law would lead to a riot and a massacre.

Accepting the Governor’s attitude as representing a decent regard for human life, we still face the question of due process of the law, the rights to possession of private property, the enforcement of law and order, the control of mob violence by the exercise of police power. These the Governor’s policy and practice utterly disregard.

For instance, Governor Hoffman of New Jersey has already declared that he would forbid sit-downs in his state, even if force had to be used. In effect, his statement is an order to the C. I. O. to stay out of New Jersey. Although this may give comfort to employers, it is part of the same process that was evident in Michigan — namely, that of an executive official acting outside of the due process of the law.

IV

The final settlement of the General Motors strike was divided into two chapters. One was an agreement between General Motors and the United Automobile Workers; the other was a letter from Mr. Knudsen of General Motors to Governor Murphy of Michigan.

The first part, the agreement, involves certain legal questions of interest. In the first place the company’s property is evacuated, not in accordance with the law, but by agreement. Secondly, although the C. I. O. is not recognized as the representative of all workers, it is recognized as the spokesman for its own members. No procedure is designated to determine what constitutes a member of a union, and, as anyone with experience in industrial relations knows, this will be a sore point later on.

Legal proceedings, according to the agreement, are to be discontinued after evacuation of the plants. But the legal proceedings in this case had reached a place where they should have been beyond the jurisdiction of either the company or the union. It is no longer important that General Motors was flouted; it is tremendously important that the court and the order of the court have been held in contempt. From the standpoint of the public interest, all that matters in the General Motors strike is that the law has been flouted and suspended and that the contempt has been formally continued in an agreement between the parties at action with the approval of the Governor of the state, who was the third party to the negotiation.

But the second chapter of the settlement goes even further. Here is a curious letter which forms no part of the agreement between the company and the union, but which is an agreement between the company and the Governor. The reason for the letter has not been disclosed. It altered several of the more important shades of agreement of the original bargain. But what interests me most at the moment is that this letter represents a further renunciation of lawful processes and the substitution of the fiat of an individual for the law.

In the first place the Wagner Act, which remains law until it is repealed or declared unconstitutional, provides against intimidation of and discrimination against workers in matters affecting labor-union affiliations. That is the law. Why is it necessary for the company to agree to refrain from doing what the law forbids it to do? What validity has such a declaration in the face of expressed law on the subject?

Then the company makes the following agreement in its letter to Governor Murphy: —

As evidence of our intention to do all we can to hasten the resumption of work in our plants, and to promote peace, we hereby agree with you that within a period of six months from the date of resumption of work, we will not bargain with or enter into agreements with any other union or representatives of employes of plants on strike in respect to matters of general Corporation policy without first submitting to you the facts of the situation and gaining from you the sanction for any such contemplated procedure as being justified by law, equity, or justice toward the group of employes so represented.

This is utter lawlessness. In the first place, by no stretch of practicality is General Motors empowered to substitute Governor Murphy for the National Labor Relations Board, which in effect this paragraph does. In the second place, Governor Murphy cannot possibly accept such authority, which makes him and not an election among the workers the measure of the will of the majority of the workers in the General Motors plant. No Federal, no state law authorizes the Governor of Michigan to assume such a responsibility.

It is important to note that the original agreement between the company and the union does not mention the appointment of a referee or a mediation board or a joint board of control. The original agreement does not appoint Governor Murphy to any position of this nature. It is only the company that agrees that he shall act in this capacity. No similar acceptance of Governor Murphy in such capacity by the union has been made public. Exactly what is the nature of his authority, then, and under what law is he to act? Suppose the Metal Workers Union of the A. F. of L. or the Brotherhood of Electricians or any other craft union wants to negotiate with General Motors during this six months’ period and Governor Murphy objects to it, what is General Motors’ position or the position of the workers concerned? Under the original agreement, they are protected. How are they protected under the terms of this letter?

But more serious than all of this is the suspension of the Wagner Act and the National Labor Relations Board by this unilateral letter from General Motors to the Governor.

Personally, I dislike the Wagner Act. But I recognize it as law until it ceases to be law. Governor Murphy, John Lewis, Alfred Sloan, and William Knudsen are not empowered to suspend this act. Its operations can only be enjoined by order of a properly constituted court, and the act itself can only be nullified by the Supreme Court.

But here is an instance in which the act is avoided by an agreement among the parties, and in its place an extralegal machinery is created to function in the very fields which the law reserves for the National Labor Relations Board. Furthermore, instead of the application of the method of election among the workers to determine majority will, the Governor is empowered by agreement to decide whether the company need treat with the majority at all. In fact General Motors agrees, for a six months’ period, not to attempt to discover where the majority stands in the plants under consideration, but to accept, instead, the Governor’s judgment in the matter. And his judgment is personal and not official, because no law authorizes him to act officially.

V

It is obvious that here is an utterly lawless situation. The law of the land, the Wagner Act, is suspended. An injunction is suspended. A court writ is suspended. Property is held by trespassers with the connivance of government. An admittedly minority labor group can throw 125,000 men out of work, while refusing to permit the workers themselves to decide who is to represent them. Unions within the American Federation of Labor are refused the right to representation. A public body of workers in Flint is denied a voice.

No law of the land, no law of the State of Michigan, is permitted to function. Hundreds of millions of dollars’ worth of property, wages, and income are imperiled. The remedy of the law is avoided, and the reason, the judgment, of one individual is substituted.

This even raises the question as to whether there is any law in labor disputes. It has been suggested that a Labor Court be created to provide a lawful but compulsory medium for the settlement of labor disputes. Such a court would have to be empowered to compel attendance and to compel the enforcement of its decisions. Organized labor dislikes this form of compulsion, and the employers would fear it because of its possible political complexion.

The weakness of the National Labor Relations Board lies in its partisan character and in its unwillingness to render a decision in cases involving conflicts in jurisdiction between A. F. of L. and C. I. O. unions. Were it not for this weakness, this Board might have developed juridical characteristics which would have supported the conception of a Labor Court.

Furthermore, the agitation over the revision of the United States Supreme Court, whatever its outcome, and the flouting of the courts in the General Motors Strike, leave the authority of the courts in a questionable position. A new court, such as the Labor Court, would have to create its own prestige at a moment when the country is divided in its opinion concerning the Courts and the Law.

VI

A labor law is needed, one that fits American conditions, that does not force the worker to sacrifice the weapon of the strike, but at the same time protects the employer from being compelled to accept one, and only one, labor union as representing all of his workers, with or without the consent of the workers.

The British Trade Disputes and Trade Unions Act of 1927, adapted to American conditions, affords the basis for such a law.

Before discussing this measure it needs to be pointed out that numerous laws exist which limit the functions of the employer and which place upon him onerous responsibilities. Childlabor laws, workmen’s compensation acts, safety acts, building regulations, the SEC, the income-tax law and the documents that must be filled out by individuals and corporations in connection therewith, the Wagner Act, the Walsh-Healy Act — a host of laws and regulations have been passed by both Federal and state governments to fix employer responsibility. Not a single law exists to fix labor-union responsibility.

This inequality of legislation makes for disorders in industrial relations. The trade unions have no legal responsibilities as organizations. They are above the law. I recall that a New York judge recently said that they are outside the law. It is inherently wrong in a democracy that any group of citizens should be above the law or outside the law or without any law. Democracy must stand on the foundation of equality before the law, as difficult as that always is to achieve.

The British have achieved that equality, placing upon trade unions fixed responsibilities, and the effect has been that the relations between employer and employee have improved, the status of the trade union has improved, and an increasingly large number of employers find it advantageous to recognize these responsible trade unions as representatives of the workers.

It should be recalled that by an act of Parliament, in 1906, registered trade unions in England were relieved of liability for acts of their agents done in furtherance of labor disputes. No court passed upon the conduct of labor unions from the passage of the Act of 1906 to the general strike in 1926. This strike involved 2,730,000 men, who lost about 167,000,000 man-days of work. The 1926 general strike was broken by an uprising of all classes of the English people and resulted in the Act of 1927.

This act is summarized as follows: —

1. A strike or lockout is illegal (and it is illegal to commence or support one) if

(а) the object is other than in furtherance of a trade dispute in the industry in which the strikers or employers locking-out are engaged;

(b) designed to coerce the Government directly or by inflicting hardship on the community.

(In other words, general or ‘sympathetic’ strikes are prohibited and penalties are provided for violation.)

2. Persons refusing to participate in an illegal strike or lockout shall not be denied the rights or advantages usually accruing to them in trade unions or societies by reason of such refusal.

3. This section declares picketing is illegal if done in such numbers or in such manner that it is likely to intimidate workers or to cause any disturbance. Penalties for violation are provided.

4. It is illegal to require any member of a trade union to make any contribution to a political fund of a trade union unless he has formally notified the union of his willingness to do so.

A separate accounting of political contributions and funds must be kept by the union and reported to the government.

5. With certain minor exceptions, civil servants (i.e., employees of the Crown) are prohibited from being members of any organization whose primary object is to influence wages or working conditions unless the organization is composed solely of Crown employees and has no affiliations with prohibited organizations.

6. It is illegal for any public authority (local or other) to make membership or lack of membership in a trade union a condition of employment or a basis for discrimination between employees.

Public authority, national or local, is prohibited from entering into any contract requiring that any person employed by any party to the contract shall or shall not be a member of the trade union. If such a condition is imposed, such condition may void the contract.

Penalties are provided for persons who break a service contract with a public authority with reason to believe that it will cause injury to the community.

7. The Attorney-General, as well as any person having sufficient interest in the relief sought, may obtain an injunction restraining the application of trade-union funds in support of an illegal strike.

I should like particularly to quote the Act with regard to contributions for political purposes: —

All contributions to the political fund of a trade union from members of the trade union who are liable to contribute to that fund shall be levied and made separately from any contributions to the other funds of the trade union and no assets of the trade union, other than the amount raised by such a separate levy as aforesaid, shall be carried to that fund, and no assets of a trade union other than those forming part of the political fund shall be directly or indirectly applied or charged in furtherance of any political object to which section three of the Trade Union Act, 1913, applies; and any charge in contravention of this subsection shall be void.

In a word, the Act calls for what in the United States would be the incorporation of labor unions; for the publication of financial accounts broken down as corporation returns must be broken down for income-tax and SEC purposes; for a definition and limitation of picketing, so that the rights of the individual in private property would be amply protected and the rights of the public fully protected. Under this act the sit-down would be altogether unlawful. Under this act the half-million-dollar campaign contribution of the United Mine Workers to Mr. Roosevelt’s reelection would be difficult.

The British found a basis for national harmonious cooperation in the solution of national problems. At a time when, in a score of European and Asiatic countries, the people were forced to go through fundamental economic and political revolutions in the course of which they were deprived of their liberties, British Democracy stood firm. Yet in 1926, before this act was passed, Great Britain was actually at the beginning of a revolution. The ôle of the Labor Disputes Act in England has never been underestimated in that country. If it is not adequately understood in America — that is our misfortune.

VII

It is simpler to handle the abuse of power on the part of labor unions in England than in the United States. In the first place, an Act of Parliament is a writ of the realm, and is not subject either to judicial interpretation or to constitutional limitations governing States’ rights.

Of course, in Great Britain a process tantamount to the recall is employed, which places restraints upon the government similar to those which arise with us out of Supreme Court decisions. This is the ‘vote of no confidence’ which forces a government to resign and which forces a general election out of turn. It is this final independence of Parliament which in England protects the individual from the expansion of administrative despotism. In the United States, such protection of the individual exists only in the Supreme Court, and that complicates our legal problem considerably.

In the United States, it is very doubtful whether the Federal Government is empowered to enact such legislation under the Constitution — or whether it is desirable that Congress should have such power. This is a moot question, with regard to which many sound arguments have been adduced on either side. Nevertheless it is clear from the General Motors strike that, whether it is Federal or state law, there must be law to protect the general community, the individual worker, the less aggressive labor unions, and the employers from the disastrous consequences of labor disputes.

In view of the decision of the Supreme Court in the Schechter case, it would appear that an act similar to the British law is the province of the state rather than of the Federal Government. This is unfortunate from many standpoints.

In the first place, all labor legislation should be national rather than local on general principles, to protect both the employer and the worker from the evil effects of regional legislation. For instance, the New England textile industry was harmed beyond repair by competition with mills in the Southern states where low standards of living and wages prevail. It is absurd and untrue to suggest that there is no child labor in Southern mills, and yet child labor (which is primarily a problem in wages rather than in human relations) has been driven from the New England mills.

Furthermore, varieties of state legislation lead to migrations of industries from one part of the country to another, causing disasters to communities, leading to obsolescence of building and plant, and producing no particular benefits.

I do not recommend that such migrations be prohibited by law, because that would be a cure worse than the disease, but I am convinced that the fundamental labor law of the country should be national in scope. And if it is unconstitutional for Congress to pass such a measure, then a Constitutional Amendment should be passed giving that right to Congress.

And responsible employers would be inept were they to oppose such a shift of authority from the states to the Federal Government, for it is necessary to clarify labor relations in the United States if we are not to become subject either to a labor dictatorship or to the ravages of chiseling employers. It is wishful thinking to believe that time will heal the present confusion. Nothing will heal it but a clarification of rights and responsibilities.

England and the United States are similar in that both countries are democracies and that the principle of compulsion has never been accepted by any preponderant element in either country. In Russia, Germany, and Italy, — that is, in the Fascist countries, — the principle of compulsion is accepted. In Great Britain and the United States, the principle of voluntarism is binding — that is, a man may join or may not join an organization and the law must protect him in his choice. This is fundamental in a democracy. This principle defines the basic social distinction between a democratic and a Fascist state.

John Lewis seeks to introduce the principle of compulsion in American industrial relations. His insistence upon sole representation without an election, upon the closed shop and the checkoff, and his use of the sit-down strike prove conclusively that he favors the employment of every weapon, including political arms of the government and intimidated employers, as agencies of coercion and compulsion.

At present, what remedy is available to the employer and to the general public against such a force? Obviously, the remedy must be found in the law if this is to be a law-abiding country.

Lawyers may argue that a remedy exists in the laws governing liability for wrongful damages. But responsibility for damages may be avoided by the costliness and difficulty of proving that damages were wrongfully committed. This becomes particularly true when an unincorporated group commits a damage and it becomes necessary to sue each individual of that group. In the case of the United Mine Workers of America v. Coronado Coal Company, Chief Justice Taft said that an unincorporated group was a partnership and that liability ‘had to be enforced against each member.’ Suppose General Motors had to sue a union of 20,000 members — and sue each individual ! And in extending the Sherman Antitrust Law to provide a remedy, Justice Taft called attention to the difficulties of suing 400,000 members of a union.

Now the Wagner Act recognizes the union as a body for the purposes of collective bargaining, but there is no act which places upon the union any responsibility or liability for its conduct. Under this act the employer can be held responsible for his conduct, but there is no reciprocal responsibility on the part of the union. An employer is liable under this law for the dismissal of a single workman, but the union is in no way made liable for wrecking an entire business.

The Sherman Antitrust Act opens a way to a remedy if there is a conspiracy in restraint of trade. In the Danbury Hatters Case, the employers won and there was a recovery, but it was a difficult and expensive remedy and one that is available only to large employers of labor. In the Coronado Coal decision, it was, however, held that a union could be sued under the Sherman Antitrust Law, and sued as a single entity — that is, as an association. This decision, although leading in the direction of liability, is not satisfactory. The courts have since held that, in order to be sued as an entity, every one of the members of the union must live in a state other than that of the plaintiff, or a Federal statute must be invoked. What is needed, then, is a clarifying law defining such liability.

Under the Wagner Act, a union may represent workers for the purposes of collective bargaining, but does that mean that the union may conduct a sit-down strike and seize the property of the employer? In New York State, peaceful picketing is permitted, but what are the limits to peaceful picketing? Is a mass demonstration peaceful picketing?

A system of mass picketing is now in vogue which virtually makes access to the premises impossible. A large number of pickets stand close to each other, each with a hand on the shoulder of the man in front of him, the whole line moving by half a pace. As long as the line moves, such picketing is legal, but access to the picketed property is blocked nevertheless.

There is no provision under any law governing the collection of funds by a labor union. The United Mine Workers can develop a fund of $3,000,000 or $30,000,000 to conduct strikes — or, for that matter, any amount. These funds are held secretly. They are subject to no public scrutiny. Their expenditure is secret. They might be used to win a presidential election. They might be used to send men to Congress. They might be used in any manner whatsoever. No one need ever account for the expenditure of these funds. No other group of men in the country are in this protected position.

The question naturally arises why any association of men should be in this extraordinary position. This question looms exceedingly large in the face of the evidences of racketeering now being brought to light in the Dewey investigations in New York.

VIII

There can be only one remedy for this, and in my opinion that remedy must be in Federal law, even if an amendment to the Constitution is necessary to effect it. That remedy is: —

1. Let every labor organization be required, like a corporation, to receive a state charter setting forth its rights, obligations, and responsibilities.

2. Let every labor organization be required to file annually with a public authority a statement of accounts, so broken down that the members of the union as well as the public may know how these funds are spent.

3. No labor union should be permitted to expend funds for political purposes without the personally confirmed consent of the membership, and all such expenditures should be made public,

4. The checkoff should be forbidden by law, and both employers and labor leaders should be made liable for its practice.

5. The workers’ representatives should be elected annually, with the right of recall, at a secret, democratic election held for each plant, on the basis of proportional representation. Strict regulations concerning these elections should be incorporated in the labor law. The rights of majorities, minorities, and individual workers should be made clear and should be fully protected.