Comment K U R T L. H A N S L O W E *

Cornell University I propose to make two levels of comments about Professor Kassalow's paper. First, I shall discuss some philosophical soft points in his reasoning. These are not major and may perhaps best be described as disagreements as to emphasis rather than content. Second, I shall build on Professor Kassalow's argument, using American labor law experience to develop a more systematic approach to the union security issue generally. In this way, it may be possible to construct a modest legal theory of the union security issue. On a philosophical level, there are three general comments to be made about Professor Kassalow's arguments. All are abbreviated because o f time and space limitations. First. Professor Kassalow begins by pointing out the difficulty confronted by economists in analyzing unions' impact on the economic system. While he is right to note this difficulty of competing economic and institutional schools of industrial and labor relations, it is not clear how the absence o f an adequate alternative to the Marshallian model is relevant to the free-rider question in Europe. Second. Professor Kassalow properly criticizes economists for often ignoring the " t r u e complexity o f the framework o f decision" on the issue of "workers' choice." It is unquestionably true that most ordinary workers do not have the choice of whether to join a union or non-union shop when they come to the labor market. To be useful, however, economic analysis need only deal with the marginal case. It need say nothing about the moral dilemma faced by a conscientious objector or about the discomfort imposed on the dissenting worker. The economist must simply use his assumption about the behavior o f the individuals at the margin of the labor movement to be able to predict the conduct of the labor market in the aggregate. It would appear on reflection that what Professor Kassalow unflatteringly describes as the "individualizing calculus" is something of a straw man. Third. The political culture factors which Professor Kassalow identifies as the explanation why the union and closed shops are less prevalent in Western Europe than in the United States are undoubtedly important. However, while the existence of dissonant ideology and strong class sentiment is important, it is not the whole story. At times it appears as though Professor Kassalow wants to

*Professor of Law and Professor of Industrial and Labor Relations, Cornell University. The author wishes to acknowledge the assistance of third-year Cornell law student Harold Levy, BS '74 (Cornell University, BA (MA, Oxon.) '78 (Oxford University), in the preparation of this comment. JOURNAL OF LABOR RESEARCH Volume I, Number 2 Fall, 1980

344

JOURNAL OF LABOR RESEARCH

explain all national differences on the union security issue in terms o f those nations' political and/or cultural differences. The political culture emphasis misses trying to explain why the political culture took the form it did in the first place. Similarly, some of Professor Kassalow's generalizations are a bit freewheeling, his use of the political culture tool too crude, not taking sufficiently into account either national peculiarities or recent developments. One example which demonstrates the need for a sophisticated use o f the political culture tool is Professor Kassalow's passing reference to the relatively large memberships of French unions. By merely comparing figures for a given year, he fails to alert the reader to the phenomenon that Frenchmen join political organizations (such as unions) in droves during periods o f political crisis. Union membership figures are a poor basis on which to stake arguments about union security clauses in Italy as well. Their complete absence of any notion of a "fully-paid-up union member" make simple membership figures suspect for under-counting, while their tradition of using dummy organization shells to advance political careers make membership figures suspect for over-counting. Similar kinds of criticisms can be made about Professor Kassalow's generalization concerning the widening functions of unions. For example, he notes that there is a tendency for unions to become involved in "social contract" schemes. This allegedly helps to diminish government's traditional opposition to compulsory union payments, as government relies on union cooperation to squelch inflation. The primary example in Europe of a "social contract" is Britain. However, in 1978 the TUC consistently refused to renew the current agreement despite repeated overtures by Chancellor Healy. Moreover, the last concession to labor for its cooperation with Government was the worker director proposal, which now seems headed either to complete defeat or to becoming a proposal which would undermine union security! The only other possible example of union cooperation with Government, Italy, hardly can be viewed as leading toward increased union stability. Because of the PCI's agreement to support the DC Government during this period of economic and institutional unrest, the CGIL is faced with being out-flanked on the left for the first time since the 1948 split. Union security is at an all time low and there appears to be little sentiment on the part of the Government to bolster what is still perceived as an essentially hostile element in society. In short, the analysis put forward by Professor Kassalow as explaining why Western Europe has fewer union shop and closed shop agreements than the United States lays a firm foundation but, without more, is not wholly convincing. I propose now to add a legal dimension to what so far has been said about the union security issue. The first point I wish to make is that a neutral legal policy of laissez faire, of the sort evidently espoused by Professor Reynolds, would indeed seem to me to require that, if employers are to be free to insist on the yellow-dog open shop, in the name of deregulation, employees and their unions must similarly be permitted to pursue the exclusive union or closed shop. Such neutrality has in fact seldom been achieved by our labor law, although an echo or two of it can be heard in some early opinions. Perhaps its most forth-

KURT L. HANSLOWE

345

right statement is to be found in the dissenting opinion o f Mr. Justice Brandeis in the Hitchman case, when he wrote: ~ " I f it is coercion to threaten to strike unless plaintiff [employer] consents to a closed union shop, it is coercion also to threaten not to give employment unless the applicant will consent to a closed non-union shop. The employer may sign the union agreement for fear that labor may not be otherwise obtainable; the workman may sign the individual agreement for fear that e m p l o y m e n t may not be otherwise obtainable. But such fear does not imply coercion in a legal sense. " I n other words an employer, in order to effectuate the closing of his shop to union labor, may exact an agreement to that effect from his employees... [T]he employer may withhold from the men an economic need - - employment - - until they assent to make it. Likewise...the union may withhold from an employer an economic need - - labor - - until he assents to [an agreement closing a shop to non-union labor]. The law, o f course, for a long time viewed the closed shop as an unlawful union aim, while upholding the validity of yellow-dog contracts. What the modern labor law appears in fact to have done is to turn this situation almost entirely around. Modern labor legislation protects employees from yellow-dog contracts by prohibiting employers from discriminating to discourage or encourage union membership. But modern American labor legislation deviates from the principle of neutrality by permitting, in non-right-to-work jurisdictions, the compulsory contribution of union fees. Such permission must be viewed as an exception to the general non-discrimination policy set forth in our basic labor laws. Indeed, it is explicitly so treated in both the N L R A and the Railway Labor Act. What is interesting in this respect in the context of Professor Kassalow's paper is that the converse aspect of the freedom o f association, namely the right of non-association (das negative Koalitionsrecht, as it is called in German law) has never in the Anglo-American setting achieved the same degree o f recognition that it has on the Continent. Contemporary G e r m a n and Austrian jurisprudence, for instance, perceives the right of non-association as a logically integral part of the freedom o f association. This has never been quite as clearly recognized in the United States, at least in the labor relations setting. One need only recall that, as the Supreme Court's recent A b o o d 2 decision demonstrates, a constitutional right on non-association is accorded only very limited recognition even in the public employment context. Compelled political or ideological contributions as a condition of public employment are, to be sure, proscribed, but compelled payment of bargaining or representation fees are not. The so-called "fair-share agreement" is permitted; this, I suppose, represents a tacit accep'Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 271 (1917). 2Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977).

346

JOURNAL OF LABOR RESEARCH

tance of the free rider argument as part o f constitutional orthodoxy. (Lest this be considered an overstatement, it should be added that, as a matter of current doctrine, a legislative open shop policy is likewise viewed as constitutionaP). The posture of our present policy then is one that rests on the authority of exclusive representation, the accompanying duty o f fair representation, and an exception to the policy o f non-discrimination to the extent o f permitting the compulsory payment of a so-called fair share to prevent free riding. If the number of persons thus compelled amounts to a million or more, I am not sure that it is quite accurate to say that one is speaking of a problem of diminutive proportions, at least when viewed from a civil libertarian vantage. Indeed, if the problem is diminutive in proportion, one is led to wonder why both the employer and the labor community are so exercised about it. For if very few employees are in fact coerced, then the compulsions involved neither help unions very much nor do they significantly hurt employers. What, one wonders, is the shouting all about? Perhaps some enlightenment can be found by tracking down the sources o f the posture our law has presently reached. The evolution has, I think, been something like this: The traditional " p u r e t h e o r y " o f American trade unionism has entailed the mutually exclusive jurisdiction o f sovereign national unions and the closed shop, as a way to protect the union scale and to take labor out of competition. The Clayton Act' exemption o f labor and its unions from the Antitrust Laws, the Norris-LaGuardia Act's 5 declaration o f yellow-dog contracts as against public policy, but most importantly the Wagner Act's' adoption o f the concept of exclusivity all were legal means for shoring up these traditional union goals. In a manner of speaking, however, the concept of the exclusive bargaining representative, coupled with the proscription o f discrimination to encourage or discourage union membership, rendered the closed shop and lesser forms o f union security unnecessary as devices for protecting the union scale. Members and non-members must be treated alike. Hence arose the duty o f fair representation and hence followed the free rider argument. It is, in any event, undoubtedly true that the union or agency shop, if nothing else, protects and stabilizes the union's income derived from dues and fees. They probably also play some role in preventing erosion of a union's majority. This argument, however, cuts two ways, since this preventive effect operates only to the extent that recalcitrant employees are in fact compelled to make fair-share contributions they would not otherwise make. In other words, union security agreements are o f use to unions precisely to the extent they do in fact compel union support which would not be otherwise forthcoming. It is in any case fair to say that in non-right-to-work jurisdictions the present legal posture is one of legislative ratification (with additions and refinements) of the union's traditional theory and practice of exclusive jurisdic3Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949). '15 U.S.C. § 17, 38 Stat. 731 (1914). '29 U.S.C. § 101-150,47 Stat. 70 (1932). '29 U.S.C. § 151, et seq., 49 Stat. 449 (1935).

KURT L. HANSLOWE

347

tion and protection of the union scale. That, we must presume, explains why the problem continues to be the object o f employer grumbling, and why unions are so adamant about defending the legal status quo. One would suppose that one reason why compulsory unionism is less prevalent on the Continent is, as Professor Kassalow suggests, the more political and ideological nature of the European labor movements. Compulsion becomes less compatible with notions o f democracy, as one moves f r o m the economic to the political or religious spheres. (These are, in fact, the very points at which our law is also tending to draw the lines.) Indeed, the very " c o e r c i o n s " which Mr. Justice Brandeis found acceptable in a legal sense in the H i t c h m a n case, were acceptable to him for the reason that in his view they entailed nothing more than competing economic interests. Despite the essentially economic character of the union security issue, it may be helpful to view it not only from a legal vantage but also as a political phenomenon. For what unions in effect are asserting, when they make the free rider argument, is that, in the setting of an industrial or commercial establishment, they are acting in a governmental capacity. And our labor law gives them support for this view. In the famous Steele d e c i s i o n / w h e r e the fair representation duty was first identified, Chief Justice Stone wrote the following suggestive passage: " W e think the Railway Labor Act imposes upon the statutory representative of a craft at least as exacting a duty to protect equally the interests o f the members of the draft as the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates. Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents .... but it has also imposed on the representative a corresponding d u t y . " This political analogy makes something like a union power to tax go down more smoothly, regardless of whether this makes sense in terms of an economic public goods analysis. The long and the short o f it is that we have tended to treat our labor unions as private governments, have subjected their internal affairs to pervasive regulation, have in effect "constitutionalized" them by protecting their members by means of a bill of rights, and have accordingly clothed them with quasi-governmental powers akin to an authority to levy a tax. I confess that I do not find this situation very troublesome in the private sector. It may not make much economic sense there, and perhaps the issue is only symbolic. But so long as we stick with a policy of exclusivity (and I d o n ' t see contemporary personnel and labor relations management taking on that fight), the free rider will remain an irritant whom unions will want to remove from the scene by at least turning him into a tax-payer, if not coverting him to full-fledged unionism. Nor, as Professor Kassalow shows, is the American union alone in

'Steele v. Louisville& Nashville Railroad, 323 U.S. 192, 202 (1944).

348

JOURNAL OF LABOR RESEARCH

this attitude. The Austrian case is especially interesting, for there union membership is both high and voluntary, but there exist legislatively created chambers of labor which perform important policy making and representational tasks and are supported by compulsory contributions from all workers. The Austrians characterize the union movement as the worker's fist, with the chambers o f labor being their brain-trust. And this rather unusual situation is reconciled with the worker's legal right of n o n - a s s o c i a t i o n by characterizing unions as private, voluntary membership bodies, whereas the Chamber o f Labor is a statutory public authority. It is, I suppose, this kind o f reasoning which gives lawyers a bad name in certain circles. In any event, I do not find our present legal posture very troubling, with one important exception: I a m uncomfortable over making involuntary support of a labor organization a condition o f p u b l i c employment. It would be unconstitutional to make such support o f a Church or political party a condition o f public employment. 8 Thus, I will close by endorsing the concern expressed by Mr. Justice Powell in the A b o o d case: 9 " T h e agency shop is said to be a necessary adjunct to the principle of exclusive union representation; it is said to reduce the risk that nonunion employees will become 'free riders' by fairly distributing the costs of exclusive representation; and it is said to promote the cause o f labor peace in the public sector...While these interests may well justify encouraging agency-shop arrangements in the private sector, there is far less reason to believe they justify the intrusion upon First Amendment rights that results from compelled support for a union as a condition of government e m p l o y m e n t . "

aElrod v. Burns, 427 U.S. 347 (1976). 9 Abood, op. cit. at 260.