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ARTICLE: THE FRAMEWORK OF DEMOCRACY IN UNION GOVERNMENT. *



* Copyright 1982 by Roger C. Hartley. I want to thank my friend and colleague, Dean Florian Bartosic, for his insights regarding the need to develop a framework for democracy in union government and for his many helpful suggestions regarding the format of this article. I also appreciate the research assistance of Ms. Laura Goodman, Mr. John Mooney and Ms. Mindi Weisenbloom, and the editorial assistance of Ms. Aline Henderson.



Roger C. Hartley **



** Associate Professor, Columbus School of Law, Catholic University of America B.S. 1965, Cornell University; J.D. 1970, University of Pittsburgh; LL.M. 1972, George Washington University.

SUMMARY:
  ... It then suggests possible causes of the doctrinal fragmentation observed in the law regulating union government, and shows how uncertainty regarding the definition of union democracy, its possibility and desirability, and the necessity of public intervention to attain it can contribute to doctrinal fragmentation. ... Composed of elected delegates from each local union who cast a number of votes in some proportion to the local's membership, the convention is now the national union's ultimate governing body, having final authority over union policy and government. ... Yet, except where inconsistent with the normal operation of these market forces or a union's bargaining effectiveness, an appropriate model of local union democracy might properly include the following structural relationships between local unions and higher governing units: 1) decentralized local negotiation of bargaining issues vitally aggectying local concerns; 2) active bargaining participation by intermediate governing units regarding other important issues, to allow these bodies to function as important power centers in relation to the national union; 3) an important local union role in contract administration and enforcement; 4) local control over fincance , rather than hight union governing units colleting dues and remitting a portion back to local unions; 5) local control over increases in dues rates; 6) decentralized control over strike funds; 7) decentralized contract ratification votes; and 8) limitations to guard against the coercive use of trusteeship, compulsory merge ...  

TEXT:
     [*15]  I. INTRODUCTION

Whether the authoritative decision-maker knows it or not, his every decision makes community policy. When the values affected by decision are left unarticulated or confused, the chances of irrational decision are in comparable measure enhanced. ¹

From time to time American labor law seems endangered by doctrinal fragmentation. Decisions seldom coalesce into coherent patterns. Rather, as Derek Bok observed over a decade ago, "an early articulation of simple  [*16]  standards is typically followed by constant embellishment of exceptions, qualifications, complex reformulations, and ad hoc decisionmaking." ² This pattern is likely to continue, Bok argued, as long as those evaluating labor policy remain unwilling "to study the actual impact of the laws upon workers, unions, and employers in ways that will identify rules that fail to achieve their intended result or rest upon fallible suppositions of human behavior." ³ Although Bok's conclusions did not relate primarily to that slice of national labor policy regulating union government, his observations likewise apply to this body of labor law. Whether one looks to the law of fair representation, union security, union fines, fiduciary duty of union officers, internal union elections, or most other related topics, incoherence has largely displaced an understandable pattern. ⁴

Bok argued that this condition is caused by the "cumulative and circular quality" of our labor laws: that they condition and are conditioned by our unique industrial relations system. ⁵ One suspects, however, that this formulation  [*17]  is somewhat underinclusive. ⁶ The industrial relations system is but one social process. Yet, as McDougal observed some years ago, all legal doctrine develops in a larger context composed of many social and power processes that together "constitute . . . a 'seamless web,' with each process both affecting and being affected by all the other processes." ⁷ Legal decisions, therefore, are policy decisions resulting from the combined efforts of individuals and groups, using a variety of strategies, to effect a demanded accommodation of competing interests involving power, wealth, status, and other important human values. ⁸ Accordingly, attaining doctrinal unity and coherence requires clarification of the larger contextual framework of legal decisionmaking and the competing but legitimate interests at stake.

This article ventures into, and attempts to clarify, the context that affects and is affected by the law regulating union government. Drawing extensively from disciplines other than law, it posits a unified role for this body of law by focusing on unions' assigned societal functions and the realities of their structure and government. Part II traces the context in which the law regulating union government develops. It first describes the dual governments unions administer, and the competing interests within each that law must accommodate. It then suggests possible causes of the doctrinal fragmentation observed in the law regulating union government, and shows how uncertainty regarding the definition of union democracy, its possibility and desirability, and the necessity of public intervention to attain it can contribute to doctrinal fragmentation. Seeking to resolve these uncertainties, the article, in parts III and Iv, analyzes unions' assigned societal functions and their governing structures, because in part V union function and structure are shown to condition significantly the preferred definition of union democracy, its possibility and desirability, and the necessity of public regulation to attain it. The article concludes by advancing a preferred model of union democracy -- one that is possible and would not  [*18]  frustrate unions' fulfilling assigned societal functions -- and by suggesting a unified role for law and legal institutions attempting to preserve and promote such democracy.

In short, this article describes the framework of democracy in union government from a policy-oriented perspective. It offers the contesting parties, decisionmakers, and other interested persons a tool for analysis rather than a calculus for exact answers. The descriptive, predictive, and prescriptive functions of legal analysis can then proceed in a more orderly manner.

II. BROAD CONTOURS OF THE FRAMEWORK

A. The Dual Union Governments

An important component of the context shaping union democracy and the role of law is union government itself. American unions participate in two distinct but inexorably related private governments. ⁹ First, they participate in a bilateral industrial government jointly administered with the employer and formalized through the collective bargaining agreement. Here a union asserts collective authority over, and on behalf of, all employees in an appropriate bargaining unit by virtue of its status as the exclusive bargaining representative. ¹⁰ Within this bilateral workplace government, law and legal institutions attempt to promote democracy by adjusting conflict between individual employee rights and union collective authority. Law addresses, for example, issues such as individual employee rights in the collective bargaining process, ¹¹ the right to fair representation, ¹² and employee rights not to support the incumbent union versus the competing claims of union security. ¹³

Unions also administer their own internal governments, asserting institutional  [*19]  authority to govern themselves and their members through internal rules, customs, and procedures. Conflicts here, arising between individual member rights and union institutional authority, require accommodation of the always present, often eruptive, and sometimes intractable competing interests of the union leadership, membership majority, and membership minority. Law attempts to promote internal union democracy by resolving conflicts such as those related to the right to union membership, ¹⁴ the conduct of union elections, ¹⁵ financial management of unions, ¹⁶ union discipline, ¹⁷ parent and union-affiliate relations, ¹⁸ and the protection of rights and enforcement of duties in union constitutions ¹⁹

 [*20]  B. Causes of Doctrinal Fragmentation

The dual union governments, the disparate union democracy issues, the competing legitimate interests, and the various legal doctrines adopted to promote union democracy at the workplace and within unions represent intersecting lines defining the board contextual contours that condition the law regulating union government. Complexity alone no doubt contributes to doctrinal fragmentation, but hardly seems sufficient to explain it. Deeper causes also operate.

First, at some critical points, national labor policy has a built-in disunity contributing to incoherence. It has developed over many years with each strand having its unique history and primary policy goals. ²⁰ Many of these goals often compete and sometimes even conflict. For example, national labor policy seeks to promote industrial peace, in part, by encouraging "responsible" unions that help control and discipline the work force. ²¹ Yet,  [*21]  the concurrent goal of promoting union democracy checks a union's ability to discipline members: ["u]nion officers must on the one hand control membership and on the other be elected by it." ²² Likewise, member control over leaders' decisions may threaten the stability of the labor-management relationship if, for example, high rates of union officer turnover or membership rejection of collective bargaining decisions result. ²³ One of the more evident examples of disunity is the policy commitment to permit union majority control over the individual ²⁴ while concurrently protecting individual rights enforceable against the majority will. ²⁵ Moreover, labor policy harps the value of independent unions, autonomous from the state, ²⁶ while concurrently imposing public regulation over many integral internal union activities. ²⁷ The tensions noted above do not exhaust the list, nor is their incorporation in labor policy necessarily ill-advised. ²⁸ Rather, tensions exist, and their clarilfication is an important step toward coherence.

In addition to built-in policy disunity, the overlapping enforcement strategies used to preserve and promote union democracy also contribute to incoherence. Labor policy blends state, federal, judicial, and administrative adjudicatory processes, but provides scant guidance regarding the  [*22]  desired relationship among them. ²⁹ When, for example, the NLRB adjudicates workplace democracy disputes concerning union security, it must accommodate union collective authority and individual employee rights when filling the interstices of the LMRA. ³⁰ These disputes can include individual dissenters refusing to tender periodic dues because of an overriding religious conviction, ³¹ or refusing to tender a portion of the periodic dues, claiming a union has expended funds collected pursuant to a collective bargaining agreement's union security clause for purposes insufficiently related to collective bargaining. ³² Yet, both state and federal courts must also accommodate these same interests when adjudicating constitutional or non-LMRA statutory claims of either religious or political dissenters. ³³ Union fine cases present an additional example of overlapping  [*23]  enforcement strategies. The NLRB determines whether a union fine violates the LMRA by evaluating whether it frustrates an overriding labor policy, but may assess neither the reasonableness of the fine nor the adequacy of the union's disciplinary procedures. These related disciplinary issues remain with either federal or state courts. ³⁴ Similarly, union refusal to arbitrate a bargaining unit employee's grievance is a quintessential workplace democracy conflict, often raising fair representation issues adjudicated by either the NLRB or the courts. ³⁵ The same controversy, however, can easily become an internal union democracy issue raising rights under the LMRDA when, for example, the decision not to seek arbitration is alleged to be discipline within the meaning of that statute. ³⁶ Conversely, the paradigmatic internal union democracy conflict may well be the contested union election. Here, law assigns the Department of Labor and the courts primary responsibility to promote internal union democracy by adjusting the competing interests. ³⁷ Yet, the NLRB necessarily affects the internal union election contest when it decides whether an employer commits an unfair labor practice by disciplining workers distributing campaign literature at work in violation of a company rule or when it determines whether a union commits an unfair labor practice by disciplining a member for engaging in internal union political activity. ³⁸ In short, national  [*24]  labor policy assigns enforcement authority to many disparate adjudicatory tribunals; much of their work inevitably overlaps. Some of the observed doctrinal fragmentation may well be explained, therefore, simply by the lack of synchronization among these enforcement institutions.

One might fairly hypothesize that the complex web of rules, procedures, enforcement strategies, adjudicatory institutions, and competing goals that comprise national labor policy sufficiently explain the doctrinal fragmentation that has plagued the law regulating union government. Because "[m]anipulation of one strand of the web of national labor policy creates a myriad of seen and unseen stresses upon other strands," ³⁹ perhaps the indigenous strains are simply so great that doctrinal unity cannot be achieved.Proving this hypothesis is of course quite impossible, for it entails proving a negative. One need only accept McDougal's thesis, however, that the process of social causation is multilinear, to conclude that other causes might additionally contribute to the observed disunity in the law regulating union government. Here the lawyer can benefit from disciplines other than law.

During industrial relations' "Golden Age" (1945-1960), interdisciplinary research of unions' internal life and government flourished. The behavioral sciences united with political philosophy, history, economics, and industrial relations seeking answers to a variety of questions relating to union democracy in general and to the existence of democracy or oligarchy in unions in particular. ⁴⁰ During this period, several pioneering scholars began to chart a role for law and legal institutions to preserve and promote democracy in union government. ⁴¹ Lipset, more than any other, attempted to bring the learning of the social sciences to bear on the question. ⁴² Quite abruptly, however, this wave of interest in union government greatly diminished during the years following enactment of the LMRDA, resulting in an erosion of "the rich linkage that once existed across the  [*25]  research, policymaking, and practitioner communities . . . ." ⁴³

A resurgence, led by the sociologists' interest in unions as complex organizations, has now begun to produce an abundant harvest of theoretical and empirical insights into the characteristics and organizational behavior of contemporary unions. Implicitly or explicitly, much of this work addresses threshold contextual questions that relate significantly to the appropriate role for law in preserving and promoting democracy in union government: how shall union democracy be defined; to what extent is it desirable or even possible; and what, if any, public regulation to achieve it is necessary? ⁴⁴ Should these value-laden issues remain unclarified, the law regulating union government can hardly develop coherence. Yet these issues have become the parameters of a circular debate because the possibility and desirability of democracy in union government, as well as the necessity of public regulation, depend on how one defines democracy. Yet, responsible policymakers would surely not seek to implement a model of democracy derived from abstract thought: its attainment must be possible, given traditional forms of union structure and government; its scope must be desirable, calculated to secure union compliance with standards of conduct consistent with unions' societal role as representative of employee group interests without frustrating unions' fulfilling that role; and the public regulation considered necessary to achieve it must be consonant with union independence within the larger democratic society. ⁴⁵

This apparent impasse can be resolved by identifying the societal role assigned to unions, by examining their structure and government, and then by demonstrating how union role and structure affect the possibility and desirability of union democracy and the necessity of external regulation. This allows the construction of a democratic model for union democracy that is feasible, and will not frustrate unions' fulfilling assigned societal functions. This model also provides a basis for defining a unified role for  [*26]  public regulation that is sensitive to, and balances, the competing legitimate interests at stake.

III. UNIONS' ASSIGNED SOCIETAL FUNCTIONS

Many in and out of unions share an ambivalence regarding the nature of American unions and their role in society. ⁴⁶ To understand the roots of this ambivalence is to understand the backdrop against which unions' present societal role is defined.

A. The Roots of Ambivalence

1. English and Colonial American Historical and Legal Precedent

It would be more than a slight exaggeration to say that for want of a flea and a rat, contemporary attitudes toward unions' societal role would be different. Yet, the bubonic plague that came to Europe in the stomach of a flea and the bloodstream of a rat, the flea's host, had a marked impact on English social attitudes toward combinations of workers. This influence later crossed the Atlantic through the English legal traditions brought to America by the colonists.

The plague that ravished Europe in the fourteenth century killed an estimated twenty million persons. ⁴⁷ Barbara Tuchman reports:

When death slowed production, goods became scarce and prices soared . . . . [T]he shortage of labor brought the plague's greatest social disruption -- a concerted demand for higher wages. Peasants as well as artisans, craftsmen, clerks, and priests discovered the lever of their own scarcity . . . . In an age when social conditions were regarded as fixed, such action was revolutionary. ⁴⁸

Lanlords soon sought relief. In 1349, therefore, Edward III issued a proclamation fixing wages and prices, compelling most persons to enter the labor market, and prohibiting workers from leaving places of employment to secure higher wages. ⁴⁹ A subsequent act of Parliament, the Statute of Labourers, ⁵⁰ was required to strengthen and enforce this unpopular proclamation. ⁵¹ The King and English Parliament thus "established a precedent of labor ordinances that was to set the pattern for labor legislation  [*27]  over the ensuing centuries," ⁵² and was to serve "as the basis for 'conspiracy laws' against labor in the long struggle to prevent unionization." ⁵³ Perhaps the most significant precedent was the use of labor law to maintain the social structure of the time. ⁵⁴ Specifically, public indignation over unions' adverse effect on employer success largely influenced public opinion that political action against worker groups was needed. ⁵⁵

Most American colonies either placed in force English law relating to economic controls or enacted equivalents. Yet, by the time of the American revolution, enforcement of these codes and restrictions on skilled labor was disintegrating, owing in large measure to the need for skilled labor. ⁵⁶ Accordingly, notwithstanding that the law throughout many of the colonies made strikes and concerted action by workers illegal activities, "[a]side from one instance, masters and journeymen, except in the licensed trades, were virtually unmolested if they sought to combine . . . ." ⁵⁷

Beneath this apparent calm, sets of conflicting values were staged for a confrontation that exploded in the early common law criminal conspiracy cases. ⁵⁸ In its most rigid form, the criminal conspiracy doctrine held that  [*28]  unions were themselves criminal organizations. "A combination of workers to raise their wages may be considered in a two-fold point of view: One is to benefit themselves . . . the other is to injure those who do not join the society. The rule of law condemns both." ⁵⁹ Even as later moderated, the rule made criminal any combination of employees to achieve either an unlawful object or to achieve a lawful object by means considered unlawful. ⁶⁰

2. Competing Values Raised in the Conspiracy Trials

Though not applied in this country since 1887, the common law criminal conspiracy doctrine was, until then, the foundation of American labor law. ⁶¹ Born from the perceived threat early trade societies posed to the master, it mirrored throughout its reign an ambivalence concerning the larger question of unions' societal role. This ambivalence is documented in the political and economic claims made by union proponents and in the rhetoric of the judicial reaction.

During the criminal conspiracy trials, the case for privileging worker combinations' assertion of group interests centered on four related claims. First, was the societal interest in fractionalization of power -- that unions are necessary to advance the collective interests of workers and to resist the demands of individuals, other groups, and society as a whole. ⁶² The political  [*29]  system, it was argued, encourages and relies upon pluralism, and in view of the multitude of organizations existing in other walks of life, it is tyrannical to deny workers the right to combine, especially since they were merely "combining against starvation." ⁶³ Second, was the societal interest in industrial democracy. Worker participation in the government of the workplace helps free the worker from the emasculating and dehumanizing effects of work, and is as important to freedom as is political democracy. ⁶⁴ The third claim supporting the public interest in worker combinations focused on the permanent want resulting from the impotence of workers' bargaining power as individuals. It is a "mockery," proponents argued, to suggest that "a solitary poor workman shall resist a wealthy and powerful combination of masters . . . ." Only combination can assure "a contestation where one side endeavours to get as much wages for lawful labour as it can; the other, to get as much labour for as little money as it can." ⁶⁵ Finally, worker combinations claimed a stabilizing role. Adequate representation and compensation would attract skilled artisans to a community thereby increasing the "stock of industry, population, and revenue"; conversely, repressive prosecutions deprive the law of "dignity and efficacy . . . and tend to make the law feared, but not respected . . . ." ⁶⁶

With some notable exceptions, the demands of workers for the privilege to act as a group within the economic and social system was found inconsistent  [*30]  with both individual and societal interests. ⁶⁷ In contrast to the values advanced by union proponents, the nineteenth century courts perceived four competing sets of values implicated by employee collective activity: First, the employer's property right to manage and control his business; second, the individual employee's right to sell his labor as he chooses and to associate or not associate as he chooses; third, the need to control private groups (factions) that create a threat to political stability by gaining control through the power to withhold labor; and fourth, the need to preserve the economic well-being of the nation by protecting commerce from the uncompetitive impediments of high wages and industrial instability in portions of the country, and by protecting the community from union monopoly power over wages and prices contrary to the natural forces of a free market. ⁶⁸

Chamberlain suggests that the criminal conspiracy cases introduced two recurring themes that permeate American labor law: the relationship of the union to the individual -- particularly the use of collective power to deprive individuals of certain liberties -- and the relationship of the union to society at large -- particularly the use of collective power to benefit a few at the expense of society. ⁶⁹ In large measure, ambivalence concerning the proper accommodation of the competing interests embraced by these themes explains society's persistent uncertainty regarding unions. As Chamberlain notes, even among those who might have agreed with the public interest claims justifying worker collective action, two questions remained:

What should the power of the group be as it affected the individual? What should be the role of the group as it affected society at large? The courts, understandably enough, felt that there must be some means of controlling the actions of groups of individuals who could so vitally affect the welfare of the community. ⁷⁰

B. Subsequent Forces Conditioning the Right to Assert Group Interest.

The transition from the nineteenth century view that worker combinations are criminal to eventual, though ambivalent, recognition that worker groups are legitimate and privileged to assert group interests was slow but  [*31]  inexorable. ⁷¹ A complete catalog of the forces conditioning this transition would include the social, political, economic, and intellectual history of the country. Yet, three confluent streams, converging in the 1930's, significantly influenced the change and have shaped attitudes toward unions and their presently assigned societal role: the spontaneous and irrepressible development of informal worker control of group conduct at the workplace; the emergence of "business unionism"; and recognition of the need for unions as a countervailing force in a highly organized industrial economy.

1. Informal Worker Control of Group Conduct

Even without unions, "[i]nformal organizations of workers develop spontaneously and unconsciously to control and regulate group conduct." ⁷² The literature studying shop society reveals that every workplace develops "a 'social structure': a network of reciprocal rights and obligations, supported by sentiment and formal rule." ⁷³ This social structure takes many forms, including employees at work binding themselves to informal codes and standards of proper social conduct with fellow employees. Usually contrary to management rules, and largely beyond management control, these informal codes often restrain production, require employees to assist one another in performing tasks, and set other norms of work-related behavior. ⁷⁴ It has been suggested that "the most powerful controls over the individual lie in the hands of the group itself and are expressed through the informal structure." ⁷⁵ Group control over the individual at the workplace is, thus, pervasive and "deeply rooted . . . in the folkways of working people . . . ." ⁷⁶ To argue this should not be, approaches irrelevance: it amounts to saying workers are unwise to have the traditions of social control they have. These traditions, moreover, become the union's traditions when workers organize formally. They help define unions' distinctive character and societal role.

 [*32] 

2. The Development of Business Unionism

Unions have also been conditioned by the history of their institutional development. The union movement was but one of three lines of the labor movement during the nineteenth century.Worker political movements and cooperative movements also sought to advance the group interests of workers. Formerly considered substitutes for one another, they united in "business unionism," which became the residual legatee of their traditions. ⁷⁷

a. Worker Political Movements

The labor movement prior to 1840 was characterized substantially, though not exclusively, by political action through workingmen's parties. "For a brief time they were highly important, and sometimes held an actual balance of power between the major parties in local elections." ⁷⁸ Using the newly obtained political power resulting from the removal of property qualifications for voting, "workers tried to secure participation in government by members of their own class," but with little success. ⁷⁹ They did attack successfully, however, many instances of special privilege until factionalism led to gradual disintegration and worker political movements merged with the larger forces of Jacksonian democracy. ⁸⁰ These early political movements left a legacy of conflicting attitudes toward union political action: workers' inability to elect their own candidates caused disillusionment but the workingmen's parties' success "in pushing forward measures . . . in the line of progress toward real democracy" ⁸¹ provoked confidence in political action.

b. Cooperative Movements

The cooperative movements of the nineteenth century, led by social reformers, also contributed to the heritage of modern unions. Seeking panaceas to avoid the wage system itself, Thomas Skidmore sought a redistribution of property; George Henry Evans sought distribution of public lands to the unpropertied; Robert Dale Owen sought to eliminate reliance on the wage system by an elaborate educational and training system and called for state guardianship of children and public boarding schools; Albert Brisbane advanced Associationalism, an experiment in  [*33]  communal living; and William Sylvis advocated worker ownership of the means of production. ⁸²

None of these attempts to supersede the wage system succeeded; nor did efforts by Edward Bellamy and other socialists to increase worker control by subjecting industrial ownership to the political process prevail. ⁸³ These movements did, however, generate a rich heritage of idealism and reform.

c. The Ascendancy of the Union Movement

The above approaches were ultimately discarded in favor of what has become known as "business unionism." ⁸⁴ Collective bargaining by the union movement had coexisted with political action and the cooperative movements during the first three-quarters of the nineteenth century. Yet, by the end of the century "skilled craftsmen, finding they could improve their own conditions by trade union action, separated themselves from the unskilled whose bargaining power was weak and who consequently looked to politics and social reform for amelioration." ⁸⁵ Many national unions soon developed and by the end of the century 120 were in existence. ⁸⁶ The new union movement, "centering in the American Federation of Labor, was based upon the conviction that it was preferable to eschew long-range reforms and concentrate upon immediate gains.It thus committed itself to an acceptance of the wage system . . . and sought only to improve the lot of its members within that system." ⁸⁷

With "business unionism" came the predominance of collective bargaining as the preferred strategy. The labor agreement "led the way from an industrial system which alternatively was either despotism or anarchy to a constitutional form of government in industry. ⁸⁸ The traditions of the previous political and cooperative movements nevertheless continued to manifest themselves from the earliest days of the national unions. While distrustful of government regulation, the national unions undertook political action when their freedom of economic action was threatened. Thus, by the beginning of this century the American Federation of Labor (AFL)  [*34]  and its state federations routinely introduced legislation protecting the legal status of unions, and in 1906 the AFL began seeking to influence federal elections. Political action had, thus, become an essential part of unionism. ⁸⁹ Moreover, the new "business unionism" never fully abandoned its reforming, cooperative tradition, sponsoring educational programs, social services, and consumer cooperatives. ⁹⁰

Thus, by the beginning of the twentieth century the unions had begun to mature. "Workers were to achieve a voice by forming strong independent trade unions, the economic strength of which would compel employers to listen." ⁹¹ Yet, unions' societal role as representatives of workers' collective voice could not mature fully until the unions' social value was more fully understood. This had not yet happened.

3. Recognition of the Need for Unions as a Countervailing Force

a. Emergence of Corporate Power

By the end of the nineteenth century, "[t]he corporation became the accepted form of business organization . . . and a complacent government and complacent courts, wedded to the economic doctrine of laissez faire, gave free rein to policies that rapidly created a concentration of economic wealth and power that the country had never before known." ⁹² During this period, the labor-management relationship became increasingly impersonal and work became increasingly dehumanizing. Moore has drawn the following portrait of the factory system:

[E]stablishment of factories, with direct and insistent supervision of the laborer, made the relatively disadvantageous position of the employee apparent. He worked on the premises of another, often at great distance from his home. He started work at a specified hour and stopped work when the plant closed for the day. The quality of his work was subject to constant scrutiny, as were his speed and general efficiency. If he lagged in one or the other he was reprimanded by his employer or one of his employer's representatives. The controls . . . [were] formal and impersonal . . . . [W]ith the factory system [the] illusion of liberty could no longer be maintained. ⁹³
In short, rule-making and administration were considered the prerogative  [*35]  of management while "[i]nsistence by workers for a voice in management decisions was a violation of property rights and the moral order." ⁹⁴ Labor law reinforced this moral order and maintained the social structure through new doctrines barring the assertion of both individual and collective employee rights.

b. Emergence of New Legal Barriers

(1) The Employment at Will Doctrine

The English common law rule, and arguably the American rule, during the early nineteenth century was that law presumed the employment period was for a year, and absent agreement, custom, or trade usage, employees could not be discharged summarily during this presumptive employment period. ⁹⁵ The rule changed in this country by the end of the nineteenth century. Cooley first noted in 1872 that employment for an indefinite period enjoys no presumption of hiring for a year. Five years later Wood, in a treatise on master-servant relations, stated that in the American common law, the presumption had been reversed. "[A] general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof." ⁹⁶ It is quite doubtful that the precedent cited by Wood supports his assertion, ⁹⁷ but American courts soon accepted the rule. "[By] the beginning of the 20th century Wood's rule was the accepted majority rule." ⁹⁸ While the doctrine has been significantly eroded in many jurisdictions, it is today, the common law rule in most states. ⁹⁹

The implications of the employment at will doctrine to individual rights at the workplace are substantial. As an often-quoted Tennessee decision states, absent agreement to the contrary, an employer may discharge an employee "for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of a legal wrong." ¹⁰⁰ Accordingly, employers  [*36]  are free to discharge a worker without notice or cause irrespective of years of satisfactory performance, or the employee's forgoing alternative employment opportunities. ¹⁰¹

Many hypotheses have been advanced to explain the employment at will doctrine. Most commentators agree it reflected laissez-faire economic values that each party, employer and employee, possessed complete social freedom and was bound, therefore, only to express manifestations of assent. ¹⁰² If the employee was free to leave employment without notice or cause, the employer, similarly, was free to discharge the employee. ¹⁰³ A somewhat less legalistic explanation suggests that a benign and supportive judiciary, seeking to foster economic growth, protected employers confronted by economic uncertainty and entrepreneurial risk. ¹⁰⁴

However explained, the effect of the doctrine is plain. It created a legal  [*37]  barrier to individual employee rights at the workplace and deprived workers of even a limited measure of job security. Ironically, while the court-created rule relied on the individual liberty to quit employment, it high-lighted the impotency of individual employee bargaining power and the need for collective action as a countervailing force to corporate power. Abandoned, as individuals, by law, employees increasingly relied on collective action to advance group interests. Here also, however, the courts reinforced the "moral order" that decisionmaking was the prerogative of management.

(2) Barriers Against Assertion of Group Interests

From the lapse of the criminal conspiracy doctrine until the Great Depression, law erected an array of interrelated barriers thwarting worker assertion of group interests. The civil conspiracy doctrine ¹⁰⁵ produced ad hoc tort decisions reflecting judges' economic and social policy predilections with respect to a broad range of union objectives and methods of collective action deemed harmful to either the individual or society. ¹⁰⁶ Departing from the English rule, the American courts also granted employer requests to have employee concerted activity enjoined if either the means or the object was found not "justified." ¹⁰⁷ Developed in railroad receivership proceedings during the 1880's, ¹⁰⁸ the labor injunction spread quickly to other industries. ¹⁰⁹ The Sherman Antitrust Act ¹¹⁰ was applied by the Supreme Court in 1908 to regulate worker collective activity. ¹¹¹ The court in 1921 found that a secondary boycott was an enjoinable restraint of trade in Duplex Printing Co. v. Deering, ¹¹² even though Congress, seemingly, had exempted unions from the antitrust laws in section 6 of the  [*38]  Clayton Act ¹¹³ and forbidden such injunctions in section 20. ¹¹⁴ Four years later, the Supreme Court held that a strike intended to prevent the movement of products in interstate commerce creates an actionable restraint of trade. ¹¹⁵ Finally, the United States Constitution was used by the Supreme Court in Adair v. United States, ¹¹⁶ to rebuff legislative efforts to protect employee concerted activity. As a legal barrier to worker collective rights, the decision is historically significant. Its reasoning, however, is particularly instructive. Unwilling to recognize the impotency of individual bargaining power, Mr. Justice Harlan, writing for the court, reasoned that "the employer and employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land." ¹¹⁷ Nor was the court willing to view the employee group as anything but a collection of individuals: "[i]t is the employee as a man and not as a member of a labor organization who labors in the service of an interstate carrier." ¹¹⁸ Similar state protective legislation was found violative of the fourteenth amendment in Coppage v. Kansas. ¹¹⁹ Here the Court reasoned that state police power did not extend to strengthening labor organizations because "[t]hey are not public institutions, charged by law with public or governmental duties, such as would render the maintenance of their membership a matter of direct concern to the general welfare. If they were, a different question would be presented." ¹²⁰ Nor may the state exercise its police power to redress the inequality of bargaining power between employers and employees, because "those inequalities are but normal and inevitable result" of a political system committed to the right of private property and the right of free contract. ¹²¹ Blumrosen, synthesizing the reasoning of these cases, has suggested they reflect the "'constitutional blindness' of the Court toward the group interests of employees." ¹²²

By the beginning of the 1930's, therefore, an imposing structure of legislative  [*39]  and judicial controls had been erected. Gallons of ink have been spilled over whether these controls excessively prevented the exercise of worker rights. Yet, two conclusions are inescapable. First, these barriers existed and reflected the twin concerns of the criminal conspiracy courts: the relation of the group to the individual and the relation of the group to the larger society. Second, these barriers were largely dismantled during the 1930's. The forces responsible for this dismantling explain a great deal concerning the societal role assigned to unions today.

c. Societal Recognition of Unions

The 1930's saw a startling shift in the attitudes toward unions. The Norris-LaGuardia Act, ¹²³ enacted in 1932, remedied the major abuses of the labor injunction in federal courts. Relying on this law, the Supreme Court undid the effect of Duplex Printing in United States v. Hutcheson. ¹²⁴ The National Labor Relations Act ¹²⁵ was passed in 1935. Moreover, the Supreme Court in Thornhill v. Alabama ¹²⁶ recognized picketing as a form of speech protected by the first amendment applicable to the states through the fourteenth amendment. Finally, the Supreme Court held that, subject to certain exceptions, unions are substantially exempted from the antitrust laws when they engage in self-help activities. ¹²⁷

While the reasons for this legal revolution are numerous, complex, and interrelated, two stand out: recognition of the loss of workers' individual liberty in large business organizations, and the economic dislocations resulting from the Great Depression of the 1930's. As to the former, Chamberlain states:

People began to see more clearly the function and the purpose of a labor union which did not deny liberty to the individual but acted as the servant of the individual as his representative . . . .

. . . Here was a changing approach to the question of the relationship between the individual and the group with increasing acceptance of the group as the agent representative of the individual, not depriving him of liberty but guaranteeing him liberty, making his liberty real. ¹²⁸
Additionally, Chamberlain argues that the Great Depression of the 1930's  [*40]  and its concomitant economic dislocations demonstrated that only "through the organized efforts of employees to secure a fairer distribution of income [could] purchasing power . . . be sustained and the economy kept on an even keel. . . . [T]he labor union had a role to play in society . . . protective in a sense of the community welfare, of its economic prosperity." ¹²⁹ In sum, this theory, now increasingly accepted, suggests that unions obtained recognition as a necessary countervailing force to perform both democratic and economic functions. ¹³⁰ The historical record strongly supports this position and helps to clarify it more fully.

The idea that unions serve an industrial democracy function began to develop actively in this country by the late 1890's. The Industrial Commission of 1898-1902, created by Congress, envisioned collective bargaining as more than a business device to secure increased economic benefits. The Commission stated: "By organization of labor, and by no other means, it is possible to introduce an element of democracy into the government of industry. By this means only the workers can effectively take part in determining the conditions under which they work." ¹³¹

During the next decade, another governmental commission, the Commission on Industrial Relations of 1913-1915, echoed this view, stressing that "the only hope for the solution of the tremendous problems created by industrial relationship lies in the effective use of our democratic institutions and in the rapid extension of the principles of democracy to industry." ¹³² The Commission relied heavily on the testimony of Louis B. Brandeis who had urged that physical and material improvement of the individual is a necessary, though not adequate, condition for a democracy. ¹³³ For in addition,

[i]t is the development of manhood to which any industrial and social system must be directed. . . . [T]here must be a division not only of the profits, but a division of responsibilities; and the men must have the opportunity of deciding, in part, what shall be their condition and how the business shall be run. ¹³⁴  [*41]  The Commission summarized this idea of industrial democracy: "The struggle of labor for organization is not merely an attempt to secure an increased measure of the material comforts of life, but is a part of the agelong struggle for liberty. . . . even if men were well fed they would still struggle to be free." ¹³⁵

During the 1920's, however, society continued to manifest a "fundamental uncertainty over the place of labor in the business system," according to Bernstein.

Employers did not know whether to clutch workers to their breasts as partners in a great cooperative adventure in production or to keep them at arm's length as potential, if not present, enemies. . . . This ambivalence manifested itself most dramatically in the extraordinary shift in the labor policy of employers that occurred during the decade. ¹³⁶
Many business leaders, endorsing the "American Plan," launched a direct and hostile attack on the union movement. Others, seeking an alternative to independent, "outside" unions, opted for various forms of "welfare capitalism": company unions, industrial relations departments, and various types of nonunion employee representation plans. ¹³⁷

Though premised on cooperation and mutuality of interest, while motivated to avoid "outside" unions, and though essentially paternalistic, these plans can be seen now as a rudimentary movement in the direction of industrial democracy. More fundamentally, they reflected an enduring shift in social attitude. The individual in a complex industrial society is helpless and the group interest must, accordingly, be recognized. The extensive publicity regarding these plans served to reinforce this view among workers, employers, and society-at-large. ¹³⁸ Labor unions had not yet become heir to this changing social attitude, but, in Bernstein's words, "[e]mployers who might later seek to turn the clock back would meet resistance not just from the labor movement but also from an enlightened public opinion." ¹³⁹

 [*42]  The "welfare capitalism" movement died with the Great Depression. As previously established job standards began to erode, the basic flaw of "welfare capitalism" became more evident: It did not create a shop government giving workers the means to protect their group interest at a time of serious social and economic dislocation.

The short-lived National Industrial Recovery Act ¹⁴⁰ was the government's initial response. While its section 7(a) gave employees the right to organize and bargain collectively, employers interpreted this as permitting bargaining with either a labor union or an internal employee representation unit. As a result, company unionism grew extensively. ¹⁴¹ The Roosevelt administration, endorsing this view, seemingly endorsed bargaining with dominated company unions. Moreover, it accepted proportional, rather than exclusive, representation, thereby threatening the bargaining power of independent "outside" unions. ¹⁴² Although still ambivalent, the American political community was struggling for a vision of the social order and the appropriate role for unions within it.

By the spring of 1934, it had become clear that additional legislation was needed, since company unions and other nonunion forms of representation had failed to provide workers an effective voice. ¹⁴³ The Wagner Act was introduced ad a great debate over it occurred in the spring of 1935 before the Senate Labor Committee. A review of proponents' arguments, the statement of purpose in the Act itself, and subsequent judicial statements concerning the purpose of the Act shows that four arguments prevailed in moving social policy. ¹⁴⁴ These four arguments were not novel. They were the twentieth century acceptance of the nineteenth century arguments advanced by union proponents during the criminal conspiracy trials. ¹⁴⁵

Fractionalization of power -- Proponents argued that the Depression had been caused, in part, by an unbalanced economy and that economic stability required a more equitable income distribution. Private ordering through collective bargaining was chosen as the preferred equalizing mechanism. Proponents maintained that it produced a better national wage policy than did centralized wage determination by government, it  [*43]  shortened the reach of government, and was needed as a balance in the economy against the "integration of wealth and power". ¹⁴⁶

Industrial Democracy -- Senator Wagner believed that workers' dignity is secured only when they can express their group interest through freely chosen representatives. In 1932 he echoed Brandeis's 1915 testimony before the Commission on Industrial Relations by stating:

We can raise a race of men who are commercially as well as politically free. . . . to me the organization of labor holds forth far greater possibilities than shorter hours and better wages. Organization plants in the heart of every worker a sense of power and individuality, a feeling of freedom and security, which are the characteristics of the kind of men Divine Providence intended us to be. ¹⁴⁷
Subsequently, urging the adoption of the Wagner Act, he stated, ["D]emocracy in industry must be based on the same principles as democracy in government. Majority rule, with all its imperfections is the best guarantee of workers' rights, just as it is the surest guarantee of political liberty that mankind has yet discovered." ¹⁴⁸ Wagner and others, seeing the increase of company unions as a threat to genuine industrial democracy, argued that only through majority rule, exclusive representation, and government supervised elections could the promise of industrial democracy be fulfilled. ¹⁴⁹

Impotence of Individual Bargaining Power -- By the 1930's, the impotence of individual bargaining power had begun to be recognized more fully. ¹⁵⁰ Testimony before the Senate Labor Committee in 1935 noted that this impotence was exacerbated by the rule in this country that a worker's "'contract' might be changed without notice at the will of the employer." ¹⁵¹ Accordingly, in its Statement of Findings and Policies, the Wagner Act  [*44]  explicitly recognized the "inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate and other forms of ownership association. . . " ¹⁵² As the Supreme Court subsequently made plain, the Wagner Act was intended "to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group." ¹⁵³

Stabilizing Function of Unions -- Societal acceptance of collective bargaining and labor unionism was, finally, seen as promoting both industrial and political stability. The Wagner Act's Statement of Findings and Policies stated that the denial of the right of employees to organize and the refusal by employers to accept the practice and procedure of collective bargaining were leading causes of strikes and other forms of industrial strife or unrest. ¹⁵⁴ Accepting this view, the Supreme Court inNLRB v. Jones and Laughlin Steel Corp. took judicial notice that the refusal to negotiate "has been one of the most prolific causes of strife" and, therefore, the right to self-organization is an "essential condition of industrial peace." ¹⁵⁵ Moreover, testimony before the Senate Labor Committee advanced the view that unions promote political stability because "organized labor in this country [is] our chief bulwark against Communism and other revolutionary movements." ¹⁵⁶ When workers can express and redress their grievances, they have no inducement to overthrow the social order.

C. Contempory Societal Functions of Unions

The burden of the argument so far is that (1) American unions operate in a society that has been ambivalent concerning their assigned social  [*45]  functions; (2) two sets of competing values reflect that ambivalence; (3) informal group control over the individual is a value deeply rooted in the social structure of the workplace, demanding legitimacy; (4) while business unionism and collective bargaining emerged as the primary, formal means for workers to assert their group interest against individuals, other groups, and society, political action and reform within the existing order remain essential attributes of labor unionism; and finally (5) societal acceptance during the 1930's that worker groups are legitimate and privileged to assert group interests evolved from a gradual recognition that in a complex and highly integrated industrial society unions are a necessary countervailing force performing for workers and society both an economic and democratic function.

These variables define unions' presently assigned social role. This understanding can be broadened and deepened by tracing subsequent developments refining national labor policy and by canvassing contemporary attitudes of unions' societal role.

1. Subsequent Developments Refining National Labor Policy

Encouraged by the legal right to self-organization and the government's support and encouragement of collective bargaining, labor unionism prospered following the Wagner Act. Labor union membership (exclusive of Canadian membership) tripled between 1933 and 1941. ¹⁵⁷ Company unions and nonunion employee representation plans faded in the face of statutory prohibitions and a revitalized labor union movement. ¹⁵⁸ By 1940, the sectors of the economy having the heaviest concentration of blue-collar workers -- mining, construction, transportation, and manufacturing -- became highly unionized as both the AFL and the Congress of Industrial Organization (CIO) organized industrial workers. ¹⁵⁹ "Business unionism" continued as the dominant model, but political action and reform efforts by labor intensified "to brirng about those conditions in our economic and social life that would enable the system of free enterprise to operate successfully with the largest possible degree of social justice. ¹⁶⁰

Strong resistace also continued. The 1937 report of the La Follette  [*46]  Civil Liberties Committee documented an undeniable pattern of employer financed "labor espionage," violence, and campaigns to organize community opposition to unions. ¹⁶¹ The American Liberty League organized an extraordinary campaign to marshall legal opinion that the Wagner Act was unconstitutional, and many employers justified noncompliance by reliance on its asserted unconstitutionality. ¹⁶² After the Supreme Court's 1937 decision holding the Wagner Act constitutional, ¹⁶³ employer groups continued a strategy of opposition. Discrimination against employees for engaging in union activities was rampant; ¹⁶⁴ the NLRB was denounced as "public enemy number one"; pressure was mounted to restrict the Board's jurisdiction; and a litigation strategy seeking to contain both unions and the scope of protections afforded by the Wagner Act was initiated. Moreover, proposals to amend the Wagner Act were soon introduced. ¹⁶⁵ In particular, arguments were mounted that legislation was required to regulate certain aspects of union government. Phillip Taft reports:

It was charged that labor organizations were guilty of improper handling of their finances, that their dues and initation fees were excessive. . . . that many workers belonging to labor unions were held captive by union security agreements [and that] unions through closed shop provisions in their contracts with employers were excluding workers from particular labor markets. . . . Complaints were made of serious Communist influences within some unions and fears [sic] that others might use their financial resources for political purposes. ¹⁶⁶
Labor unrest following World War 11 galvanized political opposition to union power. ¹⁶⁷ Accordingly, in 1947, Congress overrode a presidential veto to enact the Taft-Hartley Act.

Taft-Hartley is significant both for what it did and did not do. On the one hand, it can be seen as a reaffirmation of the national commitment to  [*47]  the practice and procedure of collective bargaining. There was no turning back from the view that the individual had a right to a voice at the workplace, and the best hope to secure that voice remained with the organized group. Yet the emphasis changed from protecting the group, to placing controls on it in the interest of dissenting individuals, other groups, and society-at-large.

Accordingly, the federal government, for the first time through legislation, assumed responsibility for protecting individuals and small groups of workers from the larger group by regulating union government at the workplace and within unions. The right to refrain from participating in concerted activities was declared a statutory right and unions were prohibited from restraining or coercing individuals choosing to exercise this new right. ¹⁶⁸ The legislation supported the appropriateness of small bargaining units to protect groups of workers who believe their interests conflict with the interests of those in a larger bargaining unit. ¹⁶⁹ Agreements requiring union membership as a condition of hiring (the closed shop) were made unlawful. Agreements requiring union "membership" as a condition of continued employment (the union shop) were permitted but subjected to complex restriction. Among these were the right of states to prohibit such agreements, ¹⁷⁰ the requirement that none could be initated without majority vote of the affected employees, and the right of employees to revoke such agreements by majority vote. ¹⁷¹ Provisions permitting employees to rescind a union's bargaining authority through an NLRB conducted election were added. ¹⁷² Excessive or discriminatory union initiation fees were prohibited under certain circumstances. ¹⁷³ Provisions for filing union financial and other reports with the Secretary of Labor were added in an attempt to foster greater democratic procedures within unions. ¹⁷⁴ Union political contributions and expenditures were regulated. ¹⁷⁵ Contracts between  [*48]  labor organizations were made enforceable in federal court. ¹⁷⁶ Finally, a union desiring access to the NLRB's processes was required to have its officers file non-Communist affidavits. ¹⁷⁷ Other provisions seeking to regulate union government more extensively were urged but rejected by Congress due to the fear of creating "complete and unlimited control by the Federal Government of the internal affairs of labor organizations." ¹⁷⁸

Whether these restrictions were appropriate or effective is an independent and important issue. Their enactment is, perhaps, most significant as an expression of unions' assigned societal role. The society granting worker groups the legal right to assert group interests through self-organization and collective bargaining held worker groups to concomitant duty of restraint.Moreover, protecting the assertion of group interests through legislation also entailed a commitment to mediate, through legislation, certain social conflicts thereby created. Few in 1947 saw Taft-Hartley as the first installment of the prediction advanced thirty years earlier by the dissenters on the Commission of Industrial Relations of 1916 that "if the State recognized any particular union by requiring the employer to recognize it, the State must necessarily guarantee the union to the extent that it must strip it of any abuses that it may practice." ¹⁷⁹ The federal law regulating union government had now been launched, but without serious consideration of the complexities of the meditation task or the dangers to union independence.

Organized labor soon began a mostly unsuccessful effort to repeal or amend Taft-Hartley, but by 1954 concentrated on preventing enactment of bills greatly expanding the Taft-Hartley controls. ¹⁸⁰ In 1957, the Senate created a special committee, the McClellan committee, to study improper practices among unions and employer groups. The McClellan committee hearings, Wellington states, "revealed extensive corruption in a small number of unions, but the hearings also resulted in a renewal of interest in unions and their appropriate role in society." ¹⁸¹

Following these hearings, Congress enacted the Labor Management Reporting and Disclosure Act (Landrum-Griffin Act) in 1959. While the McClellan  [*49]  committee testimony and initial legislative proposals focused on certain corrupt practices of union officers, mostly involving financial abuse, the central thrust of the statute, as enacted, is protection of democratic procedures in union government. The arguments successfully advanced to the Congress urging enactment of these protections demonstrate that, as in 1935, unions were understood to serve the dual economic and democratic functions that had been articulated over one-hundred and fifty years earlier during the criminal conspiracy trials. As Senator McClellan stated to the Senate, strong unions served a vital economic fundtion, for "the individual worker in an industrial economy has little or no power, when he stands alone, to deal effectively with his corporate employer." ¹⁸² Moreover, unions add self-government to industry because only through the group and collective bargaining does the worker have an effective voice. The Report of the Senate Committee on Labor and Public Welfare also recognized that national labor policy had assigned unions a "vast responsibility" for the economic welfare of the workers they represent. This function fractionalizes power by countering other private and public power. Accordingly, the report cautioned against excessive governmental interference that would "undermine union self-government . . . weaken unions in their role as collective bargaining agents [or] cross over into the area of trade union licensing and destroy union independence." ¹⁸³

Still, in 1959, the ambivalence continued concerning worker groups' assigned role with regard to their relationship to individuals and to the larger society. The McClellan committee investigation had raised the issue, and the Landrum-Griffin Act sought to address it. Like Taft-Hartley, Landrum-Griffin was a statement that unions' role includes a duty to exercise restraint as it acts to advance group interests: specifically to abstain from depriving the individual a voice within the group or permitting group control to reside with a few.

This duty was seen to attach for two reasons. One view, expressed by the Senate committee, reasoned that by urging the adoption and enjoying the benefits of an affirmatively favourable national labor policy, worker groups had accepted, as part of their role, the responsibility to "permit the individual to share in the formulation of union policy." ¹⁸⁴

Senator McClellan advanced this view but also urged a second. He understood that national labor policy justifies protecting the assertion of group interests, because the group serves not only an economic but also a  [*50]  democratic function. Without the group, the individual would have no effective voice at the workplace, and would be subject to the tyranny of superiors. Accordingly, he argued, unless the group's assigned societal role includes permitting individuals to share in the formation of union policy, the "other provisions of law may be of little benefit and meaningless." ¹⁸⁵ For if a union member were to become as voiceless within the group as he is an individual at the workplace, national labor policy will then have failed. Substituting the tyranny of the group, or a few within it, for the tyranny of an employer effects no net gain for the individual.

National labor policy had taken a giant step in a remarkably short time. The Wagner Act recognized and protected the right of the group to assert its interests because the economic and democratic function claims of union proponents had gradually been accepted. Taft-Hartley and Landrum-Griffin had reaffirmed the commitment. The unions' role was seen also, however, to include an obligation to exercise restraint with regard to individual interests both at the workplace and within the union. Perhaps most significantly, the federal government had assumed a substantial statutory obligation to "guarantee" unions to the extent of accommodating individual rights and union authority. Finally, the risk that paternalistic regulation could destroy union independence was now openly discussed.

Although still ambivalent, Congress had finally settled on a somewhat abstract view of unions' assigned societal functions. Not suprisingly, this did not end the debate. Canvassing the functions unions presently perform, and how others -- the general public, union members, union and business leaders, and the academic community -- view union's societal role will sharpen the contours of the continuing controversy and expose the accommodation tasks law has assumed.

2.Contemporary Attitudes

a. Economic Function

Today, it is widely accepted that collective bargaining is a union's primary function. ¹⁸⁶ Yet its scope is so vague as to obscure many issues confronting national labor policy and the law regulating union government.

Certainly, collective bargaining includes attempting to advance the economic welfare of bargaining unit members.The perception of the general  [*51]  public and most workers is that unions are necessary to improve wages and benefits, and that workers' economic gains have been due primarily to labor unions. ¹⁸⁷ Kochan's 1978 study of data obtained from a nationally representative sample of 1500 workers found that over 85% agreed unions improve wages, and in response to open-ended questions, "[t]he most common positive thing mentioned was that unions improve the wages and benefits of their members." ¹⁸⁸

Others question these conclusions. Many in the business community assert that unions' contribution to economic advancement is illusory since real income increases only as productivity increases. Indeed, many argue unions have restrained the growth of real income by restricting productivity gains. ¹⁸⁹ Lipset, for instance, reports "economists are tending to agree that unions have little enduring or major effect on the distribution of industrial income, or on the real wages of workers." ¹⁹⁰ Some economists add that unions adversely affect the equality of income distribution among workers. ¹⁹¹ Others, however, disagree. ¹⁹² The only consensus is that under certain conditions unions have been able to raise wages for their members and, again under certain conditions, this can be done without raising prices or adversely affecting other workers. ¹⁹³

Bok and Dunlop, confronting this evidence, raise the obvious question: What, if any, clear economic purpose does collective bargaining serve? They conclude: "If unions have not greatly influenced the amount of compensation, they certainly have altered the form in which it has been given" by increasingly channeling the total wage bill into such fringe benefits as  [*52]  pensions, health, and welfare benefits. ¹⁹⁴

As the demand for these and other benefits increases, collective bargaining will become increasingly complex, taxing not only the technical skills of union leaders but also their ability to share decisionmaking with the membership group. Moreover, workers' disparate interests due to differences in age, skill, gender, race, occupational group, and education may increasingly raise conflicts regarding the allocation of the wage bill to specific groups and for specific types of fringe benefits. Thus, the law regulating union government can be expected to become increasingly involved.

The union collective bargaining function also includes efforts to enhance job security. Barbash concludes that the "dominant theme of union collective bargaining demands in recent years has been defense against job insecurity," and that many union leaders believe job security is even more important to workers than wage increases. ¹⁹⁵ Job security issues are fundamentally issues of job allocation: obtaining employment and maintaining it. Job allocation strategies are premised on the concept that a present job is a property interest that ought to be protected. Reder argues that respect for this interest "is rooted in what . . . may be term[ed] the 'ethics of the queue' . . . . [N]ewcomers shall not usurp the 'places' of those already having them [and] scarce and desired things shall be rationed 'first come, first served.'" ¹⁹⁶ Anyone who has waited in a line knows the "ethics of the queue" are not universally recognized.In labor relations the closed shop, for instance, is certainly controversial. In addition, how are two waiting lines, or seniority rosters, to be merged? These and many other job security conflicts will arise as unions perform their collective bargaining function.

Employee economic security also includes protection against capriciousness, error, or arbitrariness in the application of personnel policy. Accordingly, collective bargaining entails negotiation of contract provisions defining rights and duties, and participation in the administration of these provisions through the grievance-arbitration procedures now in most contracts. ¹⁹⁷  [*53]  Thereby, unions, as one observer has noted, "aid in extending the rule of law to industrial establishments." ¹⁹⁸ Here again, individual rights and group authority can collide, raising questions such as the scope of an employee's right to participate, as an individual, in the negotiation and administration of these industrial rules of law as well as the nature of the group's duty to represent the individual.

Finally, the collective bargaining function has begun to include efforts to modify the work environment to make work psychologically more healthy. As higher educational levels have increased expectations, and as "a hierarchical, nonparticipatory and stifling workplace environment" has increased frustrations, collective bargaining agreements have begun to include job satisfaction reforms: worker participation in modifying job design, internal distribution of tasks, and production methods. ¹⁹⁹ Yet, paradoxically, both business and union leaders tend to oppose such plans, fearing they will be successful. Many agreement officials fear a loss of authority and indispensability. Many union leaders suspect labor-management participation initiatives are intended to weaken the union or will have that effect as the traditional adversarial relationship with management is replaced by cooperation. ²⁰⁰ Job enrichment and satisfaction issues, thus, raise a potential conflict between individuals performing daily tasks at the workplace and union leaders responsible to the group for the long-run vitality of the union.

The above modest catalog hardly exhausts the scope of contemporary unions' economic function. ²⁰¹ Instead, it shows the limited utility of the  [*54]  general agreement that unions are assigned such a function. For behind the general agreement lay many conflicts that may demand accommodation through the law regulating union government.

b. Democratic Function

(1) Industrial Self-Government

Unions purport to strive for "industrial democracy." ²⁰² One union leader's perception of this concept is to provide workers a means to participate in "the creation of industrial constitutions." ²⁰³ A union publication has stated the concept connotes the means for employees to realize aspirations for "intellectual equality" at the workplace. ²⁰⁴ Phillip Murray, in 1940, succinctly summarized this aspiration as bringing "into play the heads as well as the hands of the workers." ²⁰⁵ It also has been summarized as "'the re-creation of the individual as a person who is respected for what he does, who feels that he is being consulted in the determination of policy, and who is kept constantly informed of what is in fact policy.'" ²⁰⁶ However specifically described, the rationalizing principle is widely accepted: Unions should be a means for workers to achieve through participation the psychological benefits of increased status and dignity. ²⁰⁷

There is a dissenting view. Bok and Dunlop report that "[i]n contrast to many labor spokesmen and social scientists, employers do not normally regard the union as a valuable means for providing greater 'democracy in the workplace' or for achieving the psychological benefits of a more active participation by workers in decisions affecting their jobs and their welfare." ²⁰⁸ Nor has this dissenting view remained outside the labor movement. As Bok and Dunlop also report, according "[t]o Dave Beck, former president of the Teamsters, members . . . 'join our union for only one purpose; to sell their labor for the highest price they can get. . . . [The union]  [*55]  is the machinery of our people to sell that labor.'" ²⁰⁹

Some members of the academic community share these views. Allen asserts: "[T]he end of trade union activity is to protect and improve the general living standards of its members and not to provide workers with an exercise in self-government." ²¹⁰ Hays has similarly suggested that "[w]hat the employee looks to his union for is essentially job security, higher wages, [and] better working conditions!" Moreover, he continues, viewing "the bargaining agreement [as] a kind of legislative enactment which provides the laws under which the employees work . . . exaggerate[s] the importance of the decisions which are made in the course of collective bargaining, [for after the first agreement,] [a]ll that is really left . . . are the details." ²¹¹ Finally, Magrath states that "the measure of success for . . . all unions has been the extent to which they obtain tangible economic benefits for their members." He posits that "most union members regard their union as a service organization . . . which aids them in attaining economic benefits, [and] [l]ike the passive corporation stockholder, the passive union member think [s] . . . [that] so long as [the union] delivers the goods with reasonable competence he remains uninterested in its affairs." ²¹²

Somewhat surprisingly, these basic questions regarding the motives behind union membership have not, until recently, been subjected to empirical analysis. Moreover, much of the early work had been fragmentary. ²¹³ Kochan's extensive 1978 empirical study offers several valuable insights. Using data contained in the 1977 Quality of Employment Survey, Kochan analyzed 800 responses to questins concerning union member expectations of their union and evaluation of union performance.The data shows that union members expect their union to give highest priority to increasing the responsiveness of the union's internal administration: handling member grievances, increasing feedback to members, and providing members with increased influence in the internal government of the union.The second highest priority is increasing tangible benefits -- wages, fringe benefits, job security, and working conditions. The third priority concerns job quality -- providing more interesting jobs, and increasing the amount of  [*56]  worker say at the workplace. ²¹⁴ These results reveal the danger in overestimating the relative importance of industrial democracy to workers, for the traditional issues of wages, benefits, and job security have a greater priority. Yet, workers do not view themselves merely as corporate shareholders, as has been suggested. Nor do they view the union, as has also been suggested, as a public utility that merely provides a tangible commodity. ²¹⁵ For the data make plain that workers' highest priority is the quality of the union's grievance representation and internal governance. Moreover, Kochan found, "between 60 and 75 percent of all respondents want their unions to exert some or a lot of effort in improving the quality of the work aspects of their job." ²¹⁶ A regression analysis of the data showed age was the only statistically significant demographic characteristic explaining responses to the quality of work questins: "Younger workers were significantly more interested in having their unions pursue the quality of work issues than their older counterparts." ²¹⁷ Precise conclusions must await cross-sectional studies, such as industry and occupational surveys, and longitudinal studies, testing results over time. Present evidence, however, supports the conclusion that workers expect their union to perform both an economic function and a democratic function of providing them a meaninful voice both within their unions and at the workplace. Moreover, if the greater priority now given to quality of work by younger workers continues as they become older, the importance of the democratic function at the workplace may well increase both absolutely and relatively.

(2) Fractionalization of Power Within the Society

Beyond the workplace, unions' democratic function is to fractionalize power within the society. This dimension of a union's societal role has two components. Unions participate in setting wage policy, and thereby, help avoid the necessity of centralized governmental regulation. Additionally, acting as a power center, unions assert group interests against other groups and the government.

(a) Decentralization of Economic Decisions

Unions' contribution, through collective bargaining, to decentralized, private ordering of economic decisions continues to be valued. The  [*57]  Supreme Court's 1970 decision in H.K. Porter Co. v. NLRB ²¹⁸ is instructive. The NLRB asserted that its statutory power included ordering an employer to adopt a substantive contract term as a remedy for its refusal to bargain in good faith. No section of the LMRA speaks specifically to the question, yet the Court had little difficulty rejecting the Board's position. Relying on the legislative history of both the Wagner and Taft-Hartley Acts the Court stated:

The object of [the LMRA] was not to allow governmental regulation of the terms and conditions of employment, but rather to ensure that employers and their employees could work together to establish mutually satisfactory conditions . . . [I]t was never intended that the Government would . . . step in, become a party to the negotiations and impose its own views of a desirable settlement. ²¹⁹

The political theory underlying this commitment to private decisionmaking through collective bargaining has been well-documented elsewhere. ²²⁰ Summers explains that "[a]llocation of power and control to the union . . . creates centres of power and instruments of control apart from the State, which then does not become unmanageable or dangerously large. Collective bargaining shortens the reach of central legal control by establishing a separate structure of industrial government as an alternative to suffocating statism." ²²¹ Relying on what might be termed political pragmatism, Bok and Dunlop also see a value in unions' maintaining a viable separation between the government and units of economic power. They reason that

[e]ven if unions do not have a strong, direct impact upon the real income of their members, their presence helps to gain general acceptance for the rates of pay and . . . help[s] to persuade the worker that the conditions under which he labors are tolerably fair. [Otherwise,] workers might easily demand government regulation as the only practical alternative to protect their interests. ²²²
 [*58]  Others have viewed this decentralization of economic decisions as an "axiom" around which our political system is based ²²³ and an "essential of democracy." ²²⁴ It undeniably is widely regarded today as an essential union function.

(b) Fractionalization of Political Power

Contemporary unions are also generally understood to serve what may broadly be termed a political representation function by seeking to stabilize workers' political power. Unions operate as a counter-lobby to that of business and as a countervailing force to protect workers from the "tremendous state power inherent in a collectivist society." ²²⁵

The strategies are varied, including participation in community and local governmental affairs. Leiserson reports that unions get "nominees seated in the governments' inner councils and administrative agencies. When representatives of labor are needed to serve on public boards or on government advisory agencies, organized labor designates them.Organized labor thus regulates group conduct of working people outside the ranks of union organizations as well as those within." ²²⁶ Unions also directly and indirectly influence the election of state and local political candidates and lobby to influence legislation. ²²⁷

A profound change has taken place during the last forty years in unions' interest in national politics. ²²⁸ Today, unions routinely endorse candidates and contribute large amounts of time and money to influence national elections. ²²⁹ They operate as a pressure group within a political party seeking to influence the party's policies, and through extensive lobbying, unions act as a pressure group for a broad range of legislation. ²³⁰ An important reason for this political activity is increased awareness among union leaders that collective bargaining cannot end at the plant gate; its arena must extend into both domestic and international public policy, for  [*59]  union and management leaders alone cannot solve the economic problems affecting workers. ²³¹ Steady employment, for example, is a function of the state of the economy, and economy-wide legislation can affect vitally the ability to maintain high levels of employment. In addition, only through public policies encouraging high levels of production and employment can the economy absorb workers displaced by automation. Tax policy, interest rate levels, and international trade policy are but a few additional examples of national concerns vitally affecting workers' economic lives. Barbash has explained the new awareness in economic terms. "[C]ollective bargaining efforts can have only a micro effect. The vexing problems of insecurity can be dealt with only through 'macro' techniques." ²³² Mr. Justice Rutledge's classic conclusion seems increasingly to be appreciated. To say unions have no legitimate role in politics, he stated, is to "ignore the obvious facts of political and economic life and of their increasing interrelationship in a modern society." ²³³

Unions' political representation function is more complex and controversial when the focus shifts to the question of whose interests unions should represent. The poles on the spectrum of possibilities are easily identified. Clearly a union asserts the interests of those it represents as the exclusive statutory bargaining agent. These interests often conflict in a variety of ways, as noted above, but the unions' function is clearly to accommodate and represent them. Conversely, since at least the beginning of this century, the mainstream of union leaders, and most members of the society, have understood tha