Boards: The New Mechanism for Industrial Relations
by John A. Fitch
Director of Industrial Courses, New York School of Social Work
In the Houde case, decided August 30, 1934,
by the National Labor Relations Board (successor to the Wagner
Board) it was held that "the employer is obligated by the statute
to negotiate in good faith with his employes' representatives;
to match their proposals, if unacceptable, with counter proposals;
and to make every reasonable effort to reach an agreement." A
further statement to the same effect appeared in the report of
the Winant Committee dealing with the textile strike: "Section
7-a . . . imposes a duty on employers to recognize any individual
or organization chosen as the representative of their employes
and to make every reasonable effort to reach a collective agreement
with such representatives."
The National Labor Relations Board,
made up of non-partisan representatives of the public.
Left to right, Edwin S. Smith, Massachusetts labor commissioner;
Lloyd Garrison, chairman,University of Wisconsin; H. A.
Millis, University of Chicago
statements of the obligations of the employer will doubtless
have influence. A similar statement appeared in the Wagner industrial
disputes bill which was before Congress last winter. It must
necessarily remain a fact, however, that the specific steps
required of an employer in any particular collective-bargaining
conference have not as yet proved susceptible of effective definition.
The requirement in the law and the statements of boards as to
its meaning have
been valuable primarily for their moral effect and their contribution
to standards of conduct.
As a matter of fact the major
issues that come before the boards involve coercion. They have
to do mostly with attitudes and behavior preceding the collective-bargaining
conference rather than with the conference itself. More than
a fifth of all the cases handled by the Wagner Board involved
"discriminatory discharge," most of them for joining or promoting
a trade union. On the other hand, many involved compulsion with
respect to joining a company union, and altogether the great
majority of the cases raised the question of the freedom of
the worker to organize and choose his representatives. Issues
of this sort are relatively clear. However complicated a particular
case may be, there can be little difference of opinion that
the outstanding methods of employer-coercion with respect to
organizationdischarge, threat of discharge, yellow-dog
contractare definitely illegal under Section 7-a.
YET these cases, too, involve
many problems that are difficult of adjustment. Immediately
upon the passage of the Recovery Act, company unions began to
bloom amazingly in plants where before not even that agency
for employe representation had existed. The National Association
of Manufacturers, not widely celebrated for its advocacy of
collective bargaining, sent to all its members a model company-union
plan. Arthur Young, vice-president of the US Steel Corporation,
has testified that he himself devised a plan which has been
adopted in 165 mills of the Corporation and its subsidiaries
"as a legal vehicle of collective bargaining." A strange sort
of vehicle for the Steel Corporation to be steering!
involving company unions usually present the question of freedom
of choice. Did the employes freely vote to accept the plan?
Did they vote for representatives without the presence of the
slightest shadow of employer-influence? Was coercion, however
subtle, brought to bear? Some "elections" held to determine
whether the employes wish to accept a company union have been
held under company auspices and without opportunity for discussion.
In some, company officials have counted the votes, and in many
no alternative choice has been provided in the ballot, the worker
being required to vote either for or against the company union.
It would take some courage to write in on such a ballot the
name of a labor union, especially if the election is conducted
by company officials. In still other cases coming to the attention
of the boards, company unions were imposed without a vote of
the employes and in others representation was limited to workers
in the plant, thus offering something less than full freedom
of choice. In all cases coming before the boards such acts have
been held to be in violation of the law.
the most difficult requirement of the law, from the enforcement
angle, appears in the first sentence of Section 7-a, "employes
shall have the right to organize and bargain collectively .
. ." Who are the "employes" possessing this right? Does it mean
any group of employes, however small? Or does it mean all the
employes, and must the organization fail of its purpose if even
one employe remains outside? The latter was the contention of
an employer whose actions came under the scrutiny of the National
Labor Relations Board. In discussing at a meeting of his employes,
called by himself, the request of some of them for recognition
of their union he stated that "under the law he could not recognize
the union unless it represented 100 percent of the employes
in the plant, that he would be jailed if he did so."
spite of absurdities, the question how "employes" may establish
their right to bargain collectively through their chosen representatives,
is a real one. What proportion of the workers should belong
to an organization before it is entitled to recognition? If
it is 51 percent then what is the status of the 49 percent?
Do they have representation too? And if there should be further
sub-groups and finally individuals who persist in their ruggedness,
is the employer obliged to bargain separately with each, collectively
with the groups, individually with the individuals?
is a question that has worried the wise men in the Administration
from the President down ever since it emerged, early in the
career of the NRA. And it has been decided first one way and
then another and then back again. Some of the authorities have
remained consistently in one camp, some in another and there
are some who have decided the matter both ways.
first important recorded opinion on this subject appeared in
a joint statement by General Johnson and Donald Richberg issued
August 23, last year. They declared that "the right to organize
and bargain collectively" which is established in the law, "can
mean only one thing, which is that employes can choose anyone
they desire to represent them or they can choose to represent
themselves. Employers likewise can make collective bargains
with organized employes, or individual agreements with those
who choose to act individually." Accordingly, when in October
1933 the Administration worked out an agreement for ending the
strike in the "captive mines," it was stated that "representatives
chosen by a majority will be given an immediate conference,
and separate conferences will be held with any representatives
of a substantial minority. "