question is purely academic, for what is overlooked is: (1) the fact that the union must ask for the union shop; and (2) the fact that the employer must agree to it.

On the first point, the objection is that the individual worker has little voice in formulating proposals for negotiations, and that the union shop is steamrolled through by the national leaders. But if subscribers to this view could experience the difficulty of getting a quorum of 1 percent at a union meeting (as this writer has), they would perhaps reconsider; furthermore, recent developments in the steel and electrical union elections, as well as the trend toward rejection of the tentative agreement by the rank and file, such as in the last auto negotiations, should serve notice that workers are not as docile as one is often led to believe. Some recent NLRB decisions on internal affairs are also relevant in this respect.* In addition, most people are aware that a union, like a corporation or any other type of large organization, must operate on a consensus, rather than on a townmeeting basis.

On the second point, one might say that the employer is coerced into accepting the union, once it is legal. But the story about the union negotiator who says that he doesn't know what he would do if he ever got the union shop (since he has been proposing it, then "trading" if off, for many years) is well known. The point is, the union shop, like wages and other items, is simply another horse-trading process; the company that grants the union shop merely includes it as part of the package, and the skillful negotiator will receive (or save) something in return. The firm that is genuinely opposed to the union shop, such as Lockheed and some other aerospace firms, will resist.

In this writer's opinion, the question of whether the union shop should be left to State control must be answered with a clear and resounding no. Why should General Motors, say, operating in Michigan and in Georgia, producing the same product, procuring parts and materials from the same sources, serving the same market, dealing with the same union and under the same contract (except for points which are uniquely local in nature), be allowed to grant the union shop in Michigan but not in Georgia. The union shop is not local in nature, any more than is the closed shop, or the entire body of labor law, for that matter. Surely, one would not contend that the rights of workers in Michigan are less important than of workers in Georgia. As Feinsinger has so rightly observed: '

"These right-to-work laws are found mainly in agricultural States or in States seeking to attract industry by the assurance against 'labor troubles' implicit in such laws. This is not to say that many legislators may not have supported such laws because of an inner conviction that they are needed to protect the liberties of the individual worker. But it is difficult to assume that the inner convictions on that score of a majority of legislators in some States can differ so markedly from the inner convictions of a majority of legislators in other States. The contrast can be accounted for only by a difference in the various States in the degree of acceptance of unions as an integral part of the economic structure."

Although the outcome of the current debates on repeal of 14(b) will probably not be decided on merit, it would seem appropriate to briefly touch on some of the arguments that will be paraded before Congress.

The major rallying point is the notion that "constitutional rights" are violated by the union shop, or by prohibiting the union shop. Since for the most part these "rights" arguments are so absurd they defy serious analysis, it will be necessary to fight cliche with cliche.

The unionists claim that the "right" to work is a hollow one, in the face of high unemployment. That approach is apparently attributable to Clarence Darrow, in testimony before a Senate committee, in 1915: *

"If a man has any constitutional right to work he ought to have some legal way of getting work. If the Constitution is going to guarantee the right to work, it ought to guarantee some place to work, and there is no such thing. A man

See, e.g.. NLRB R-979, dated Sept. 2, 1964, where the Board ruled that unions could not fine members for filing unfair labor practice charges against unions, and International Association of Machinists v. Street, 367 U.S. 840. 758 (1961), restricting the use of dues money for political purposes; see also, "Union Election Challenges Under LMRDA," Monthly Labor Review, January 1965, pp. 1-7, on the volume of charges filed against unions with the Office of Labor-Management and Welfare-Pension Reports.

William E. Simkin, "Approaches the Labor Peace," Industrial Relations, October 1964, pp. 37-44. 7 Loc. cit., p. 9.

8 Reference cited in: Leon Litwack, "The American Labor Movement" (Englewood Cliffs : Prentice-Hall, 1962), p. 62.

can only work if there is a job; he can only work for a man who wants some man to work for him."

It is true that some attempts have been made to grant everyone the “right” to a job. The Murray bill, in 1945, which was the forerunner to the Employment Act of 1946, declared that "all Americans able to work and seeking work have the right to useful, remunerative, regular, and full-time employment." But such right has not been bestowed.

The analogy is improper anyway, because, in fairness, it should be pointed out that proponents mean one's right to go to a job if he has one (no matter how inappropriate the argument may be). To contend that the right to work is meaningless if one cannot find a job is to say that freedom of the press is meaningless if one cannot afford the price of a newspaper.

Freedom of association is another battlecry used by both sides, with RTWL opponents saying that a worker has a right to associate with, i.e., to work with, union members only, and proponents saying that he has a right to associate with nonmembers if he wishes. As for the opponents' argument, one could say that a prison guard has a right to associate only with free men, and thus should demand that the inmates be released. As for the proponents' view, Barry Goldwater, in a campaign speech in Atlanta last fall (referring to the Civil Rights Act), stated that a man had a right to some voice in who his neighbors would be. But if a man only wants to live among Baptists, he can hardly demand that his neighbors join the Baptist church. As long as he, himself, is free to move out, there is no encroachment upon his rights. By the same token, no worker has a right to demand that the union membership status of a coworker conform to his own.

10

And speaking of churches, during Senate hearings on Taft-Hartley revisions, in 1953, then Senator Goldwater attempted to relate the union shop to compulsory support for the church, or for the chamber of commerce, on the grounds that such organizations serve the entire community. Walter Reuther replied that the union was the "sole bargaining agent under the law." As is usual with spokesmen on the issue, Reuther overshot the target; that is, one of the provisions of the Wagner Act most sought-after by the unions was that of exclusive representation, since fractional bargaining was one of the big weaknesses of the NIRA codes. Thus, the union is the "sole bargaining agent by law" because it asked to be.

By far the favorite slogan of unions in support of the union shop is that of the free rider, along with its ally, the majority rule. Unlike the pure constitutional rights shibboleths, these are not without precedent.

Many cities, for instance, have ordinances whereby a majority of the property owners on an unpaved street can force the minority to pay their pro rata share for paving it. As far back as 1740, during the enclosure movement, a petition signed by the owners of four-fifths of the land in a given area would oblige the passage of an act to enclose the land."

The most rigorous application of the majority rule concept is in the featherbedding practices. The medieval gilds (which included employers) influenced the government to pass legislation prohibiting nonmembers from practicing the trade." (Such arrangement, incidentally, is really the only genuine form of the closed shop; in this country, where there has not been any legislation prohibiting nonunion workers from following a trade on an independent basis; we do, however, have the true closed shop in some of the professions, such as the bar; that is, lawyers set the rules for admission, and through their large influence in the legislature they see that nonmembers are not permitted to practice, and members may be expelled for such sins as deviating from the fee schedules; judges, i.e., lawyers, pass on the validity of such legislation. And yet these same bodies pass such legislation as right-to-work laws.

The farm referendum is another example of giving legal sanction to acts of private groups.

Nonetheless, unions are unique organizations, due in part, according to one court ruling, to the heterogeneous membership. Also, the relationship between the member and his union is constant, active, and continuing one. Even though, as noted, the majority rule has not always been limited to public governments, there is still serious question as to whether it should be given unlimited application to unions.

Effects of RTWL's.—Although it was noted earlier that the effects of RTWL's

"Toward Full Employment: Proposals for a Comprehensive Employment and Manpower Policy in the United States" (Washington: Government Printing Office, 1964), p. 8.

10 Taft-Hartley Act Revisions: Hearings before the Committee on Labor and Public Welfare. U.S. Senate. 83d Cong., 2d sess., pt. 1, Mar. 24-31, 1953.

T. S. Ashton, The Industrial Revolution (London: Oxford University Press, 1949` p. 59. Florence Peterson, American Labor Unions (New York: Harper & Row, 1963), p.

is not a direct issue, the effects of such laws are being used by both sides in the current campaign. As on other counts, the matter has been grossly exaggerated, with unsubstantiated and often irrelevant assertions.

Andrew Biemiller, legislative director for the AFL-CIO, in a recent issue of the AFL-CIO News, referred to RTWL's as the "greatest deterrent" to organizing and maintaining a strong labor movement. (A letter from the author, dated January 12, asking Mr. Biemiller to substantiate his statement, remains unacknowledged.) The evidence strongly suggests that RTWL's have had little effects on initial organizing efforts (as Meyers found in Texas). It is true that the absence of a union shop does require a union to divert considerable resources to the recruiting of members in a plant already organized. Thomas E. McNett, president of International Association of Machinists Lodge 727, which represents the Lockheed workers in Burbank, Calif., wrote that "* ** we must maintain a constant organizing drive, signing up an average of 175 new members per month in order to stay even, with the turnover from layoffs, voluntary quits. retirements, deaths, and transfers to salaried positions." 13 But-and here again is an excellent illustration of the treating of the RTWL issue as synonomous with the union shop issue the recruiting efforts have nothing to do with the RTWL question (California, of course, is not a RTWL State).

As for Biemiller's statement, informal and unsystematic discussion by the author with union organizers in the South strongly indicates that RTWL's have virtually no effect on organizing. One did say that employers have told the workers that the RTWL protects the worker, so that a union is not needed. would seem that only the most uninformed worker would be impressed by such a statement.)

(It

The International Ladies Garment Workers Union has purportedly "proven" that RTWL's have been a factor in preventing union membership from increasing as much in the United States as it has in Canada since 1947." Unions also point out that RTWL States have lower incomes, fewer and less effective protective labor laws, and the like.15 At first blush, one might counter that RTWL States also have warmer temperatures, since RTWL States are mostly Southern States. And yet, the analogy may not be quite complete; that is, RTWL's do no doubt serve as a symbol of a generally antilabor attitude. Thus, it may well be that the type of industry to which this so-called "favorable labor climate" appeals is more likely to be the low-wage, "run-away" class of industry, seeking to exploit short-run advantages. Furthermore (and this is more likely), it may well be that the high-wage, original-fabrication industries (which the South needs desperately), which are not so cost-conscious, tend to view RTWL's as another mark of sectionalism and as a reflection of lack of a progessive atmosphere.

Another possible effect of RTWL's that would seem to contain even more logic is Marshall's observation that unions feel stronger politically if they can assert enough power to get a RTWL repealed, or prevent one's being passed; he noted that union officials in Louisiana reported that judges and other public officials assumed a more favorable attitude toward unions after seeing the union display of influence in getting the RTWL there repealed.16

The last two points mentioned above raise the question of the effects of repealing 14(b). The effects would be rather different from the effects of repealing RTWL's by individual States; that is, in the first instances with regard to the "Favorable Labor Climate," the effect of repealing 14(b) would probably not be noticed, since Federal action would not reflect any relaxation of the antiunion attitude at the State and local level. But regarding political strength of unions, State and local officials would likely view repeal as a reminder of political strength of unions at the national level, and of a Congress (and of an administration) sympathetic to unions.

The writer would offer this prediction: if 14 (b) is repealed, there will be no deluge of union shop contracts negotiated in the South, except possibly in situations where membership approaches 100 percent already, such as national firms who already have such clauses in other States, the crafts, transportation, and the like.

13 Letter dated Dec. 11, 1964.

14 Cited in: Herbert R. Northrup, "Management's New Look in Labor Relations," Industrial Relations, October 1961, p. 14.

15 The Anti-Labor Link to Poverty," The American Federationist, Apr. 15, 1965, pp. 14-17, is one of the several such reports.

16 Ray Marshall, "Some Factors Influencing the Growth of Unions in the South," Proceedings of the Industrial Relations Research Association, 13th Annual Meeting, pp. 166

182.

What are the real motives behind the union shop? This would seem to be the crucial question in considering amendments to 14(b). Those who have studied the issue objectively seem to unanimously agree that the "right" of the worker is not the motive, but rather is used as a facade to avoid admitting a basically antiunion position. Feinsinger was quoted earlier. Marshall noted that RTWL'S "*** are probably designed mainly to advertise the States' hostility to unions and not to guarantee the right to work." " Evans has made perhaps the most comprehensive and most appropriate statement:

17

18

"The National Right To Work Committee and those who support such legislation insist that theirs is a fight for principle, that no man should have to pay to work. The fact that so many are unable to see the same principle when the applicant is black rather than nonunion, as well as other evidence, suggests that their position may well be less one of principle and more one of antiunionism. This is not to deny antiunionism as a legitimate position, but only to argue that it would not be hidden."

Expounding on Evans' statement, one might ask where are these crusading groups when churches are bombed, or when voting and other real "rights" are denied. And isn't it inconsistent that Georgia, an RTWL State, leads the Nation in lynchings (364 on record) while the legislature has taken no action to tighten laws against lynching and has traditionally fought such Federal legislation?

The true motives behind RTWL's are so obvious that even their supporters at times, perhaps unwittingly, admit them. For example, Business Week has quoted the National Association of Manufacturers as saying, with regard to the current campaign to repeal section 14 (b), that the "possibility that an RTWL can be enacted now serves as some check on extreme union behavior ***. Once States are foreclosed from taking this step, they will have lost much of their present power to discipline unions." 19 Ralph E. Flanders, in a pamphlet called "Seven Great Americans and the Right To Work," wrote: "Going back one or two generations it is possible to conceive of a unique social mission for organized labor. That mission no longer exists. In fact, organized labor has become a threat to the prosperity of the country and of its own membership." " After warning of the oncoming disaster from inflation, Flanders concluded that, "No workman should be compelled to contribute to that disaster by being forced to become a member of an organization [organized labor] which is helping to make that disaster inevitable."

20

The above is not to suggest by any means that opposition to the union shop is indefensible, or necessarily that some restrictions should not be imposed on union security. But, again, this is a quite different issue.

Since, then, the real motives behind RTWL's are fairly clear, what action should be taken? First of all, section 14 (b) was a political freak, and should be changed. But, the matter should not end there; some proviso should be attached making sure that the underlying issues are studied in detail, with a view toward a national policy on union security. And if such a proviso is not procedurally feasible, then the question of repeal should be held in abbeyance pending some objective study (since getting the door open on labor law is so difficult, which no doubt accounts for the fact that both sides want to take the "whole turkey" once the door is open).

As this writer views the issue, it can be condensed into a fairly simply proposition: The question of whether the union shop would improve a collective bargaining relationship must be balanced against any harm that may be visited upon the worker as a result of being forced to join the union. In order to point up some of the questions that should be examined, it is necessary to offer some observations on the above proposition.

21

Sultan suggests that the nonmember may be more likely to cross a picket line, which means that a union containing nonmembers would enjoy less strike power.2 That is a topic that would bear testing, for it may be that the "Captive" member is no more loyal than the nonmember, i.e., that union strength is a function of the unionized rather than of the organized.

17 Ibid.

18 Robert B. Evans, Jr., Public Policy Toward Labor (New York: Harper & Row, 1965), p. 168.

19 "Labor Briefs," Dec. 5, 1964, p. 72.

20 Chamber of Commerce of the United States, April 1964, pp. 21–22. 21 Loc. cit., p. 114.

It is contended that members would abandon unions in wholesale lots, except for union shop clauses. The National Small Businessmen's Association comments that:

22

"In the face of the sharp decline in interest among rank and file members, gradual disintegration of many unions would have been inevitable if the union professional had not had the foresight to demand and obtain compulsory membership provisions in their collective bargaining contracts."

An educator asserts that the union shop is in the interest of the "* * * professional labor leaders whose power, position, and influence would be threatened by a mass desertion of union members." 23

Even though these bold statements overlook the fact that a mass group of dissenters can obtain a decertification, it would still be appropriate to determine the extent of involuntary membership under union shop conditions. Also, it would be very worth while to collect some data on the turnover among membership in an open shop situation, as well as on the extent to which members exercise the "escape" clause under a maintenance-of-membership arrangement.

With regard to involuntary membership, Kuhn estimated that the union shop brought in one member for every six voluntary members, and that passage of an RTWL could result in a loss of membership of from 6 percent to as high as 15 percent." Dempsey, in his study of the RTWL in Louisiana, concluded that it had not significantly altered the balance of power between the parties in collective bargaining."5

While studies as these and others are helpful, it would seem more appropriate, for purposes of writing legislation on union security, to direct the conclusions toward the effects on the relationships: (1) between the union and the employer; and (2) between the worker and the union.

If the resources consumed by both sides in support of passage or repeal of RTWL's had been devoted to serious and deliberate study of the substantive issues, it might be that some accommodation would have been reached. It might even be that labor and management could get together on some compromise that could work to their mutual advantage. Lockheed (of California) and the Machinists Union have a maintenance-of-membership agreement, and in the last negotiations the parties compromised on the union shop issue, whereby the company delivers a letter to each new employee, "suggesting" that he "give consideration" to joining the union. But probably of more significance, the agreement includes an inplant stewards training program (which this writer had avocated for years). The president of the union local wrote that "*** this mutual relations agreement has improved our relations and has been particularly successful in respect to inplant steward training * (He did go on to say, however, that "* ** it has not met our real need concerning the elimination of waste of time and moneys toward maintaining our bargaining rights. William E. Simkin, FMCS director, noted that: "7

"One of the interesting developments of the cooperation program is that voluntary union membership has increased substantially at Lockheed and that the unions have not made comparable membership gains elsewhere, except under the agency shop at Douglas. Nor is the company abashed or dismayed at this development. The moral of this story is that soundly conceived and administered labor-management committee procedure and other features of the cooperation program have converted what could well have been a deteriorating relationship to one of the best in the industry."

Another example of compromise is the clause negotiated at Boeing, also with the Machinists, whereby new employees are given 10 days to request nonmembership, while old employees may remain nonmembers permanently.

28

But in spite of such isolated instances, labor and management in general have reflected no mood to compromise. To quote Sultan once more: "Unable to conceive, then, of the conflict of good against good, a kind of Gresham's law has

Small Business Bulletin, dated May 1959; quoted in: "Freedom To Choose" (National Association of Manufacturers, Industrial Relations Department), undated.

23 Nicholas Nyardi. Bradley University, in “Quotable Quotes on Right To Work" (Chamber of Commerce of the United States), undated.

24 James W. Kuhn, "Right To Work Laws: Symbols or Substance," Industrial and Labor Relations Review, July 1961, pp. 587-594.

25 J. R. Dempsey, "The Operation of Right To Work Laws" (Milwaukee: Marquette University Press, 1961), p. 127.

26 Loc. cit., letter from McNett.

27 Loc. cit., "Approaches to Labor Peace." p. 41.

28 Compromise Ends Tension at Boeing," Business Week, Apr. 20, 1963, p. 166.