Labor Roundtable: Why Market Anarchy Favors Labor
It seems like this should put to rest any notion that the legal regime currently in place actually favors labor on net at all. I’m not sure it follows that only repeal actions and not new laws must be the best, or certainly the most effective or pragmatic ways to redress this, though such repeals certainly seem very well-indicated to me. but not all avenues are equally traversable, or likely to be followed to success. The ideas about re-embracing a broader palette of tactics seems essential. It should be said that tactics being used in Wisconsin are very clearly more varied and spontaneous than formally declared walk-off strikes.
Except for the bolded portion I agree entirely with this, and with the remainder of Michael’s comments. But with reference to the bolded quote, I want to point one thing out that Kevin hints at, and which I think should be especially important in this discussion.*
One of Kevin’s underlying points, it seems to me (and one which I hadn’t thought of before), is that most conceivable legal regimes will provide at best temporary benefits to labor and in the long run will be turned against labor. For instance, Kevin writes that:
[W]e should examine the extent to which even ostensibly pro-labor laws, like the Wagner Act**, have served in practice to weaken the bargaining power of labor. Before Wagner, what is today regarded as the conventional strike — an announced walkout associated with a formal ultimatum — was only one tactic among many used by unions.
Labor struggle involved, at least as much as the conventional strike, assorted forms of on-the-job direct action like slowdowns, “open-mouth sabotage,” work-to-rule, “good work” strikes, wildcat strikes, and unannounced one-day walkouts at random intervals.
The reason for this is simple – one of labor’s only real bargaining advantages, and probably its biggest potential bargaining advantage, lies in its ability to be unpredictable in the sorts of pressures it applies on management. The institution of legal regimes ultimately makes labor more predictable and thus gives management more power.
I suspect there’s a limit to how far this logic can be applied, but it’s worth pointing out that private sector union membership was twice its current percentage in 1935, when the only meaningful legislation protecting labor was the Clayton Act of 1914.
One thing that is really interesting, in fact, is how prior to 1914, the injunction authority given courts under the Sherman Antitrust Act of 1890 was used repeatedly as a sword against unionization, effectively guaranteeing that federal courts would be able to arbitrarily restrict and prohibit just about any meaningful union activity at their whim, with criminal penalties at their disposal for anyone choosing to violate their orders. This was by and large the only federal statute pertinent to unions at the time***, and it was used in an unconscionable way against unions. Despite this, unionization in 1914 was over 12%, or twice its current rate.
But here’s the thing: in 1914 the Clayton Act was passed, exempting unions from the Sherman Act. In other words, at this point, there was effectively an absence of a federal legal regime governing unions. From 1915 to 1920, unionization increased from 12% to 19% in the private sector, a rate only slightly below the rate of increase in the first five years after the passage of the Wagner Act (1935-1940, when unionization increased from 14%-24%).
Here’s where things start to get hairy, though: shortly after the end of WWI, the courts bizarrely ruled that the Clayton Act only prohibited the federal government from obtaining a Sherman Act injunction against a union, and did not prohibit private entities from using the Sherman Act to obtain an injunction against unions. The Clayton Act was effectively read out of existence – unions went from being largely unregulated (at the federal level) to again being heavily, and arbitrarily, regulated at that level via court injunction. Similar trends returned with respect to the use of anti-union injunctions under state laws. To give an idea, 1845 anti-union injunctions were issued in the fifty years between 1880 and 1930, and just about half of them (921) were issued between 1920 and 1930. To the surprise of no one, union membership quickly plummeted back to pre-WWI levels by 1925 and stayed at those levels until the Wagner Act was passed in 1935. Notably, the Wagner Act was passed at a time when courts in general were losing there authority for government-by-injunction.
I think what this shows is how legal regimes have largely hindered unions historically. Even as much as the Wagner Act was largely responsible for labor finally obtaining a measure of bargaining power, it does not appear to have done so in a manner much greater than the brief earlier period when unions were effectively operating in the absence of a federal legal regime, particularly when one considers that government-by-injunction on the state level was already less of an issue by the time of the Wagner Act than it was during the Clayton Act’s all-too-brief heyday.
What’s more, even to the extent that the Wagner Act was solely responsible for the growth of organized labor between 1935 and 1950 (and I acknowledge that it was one of, if not the, major driver of that growth), the very fact that it created a legal regime within which unions could operate safely meant that it created a legal regime that could be heavily amended and eventually restricted. Union membership more or less stopped growing with the passage of the Taft-Hartley Act, which was the means that first amended and restricted that regime, and began its precipitous decline more or less at the same time as the subsequent passage of the Landrum-Griffin Act (which banned secondary boycotts, and began the practice of heavy regulation of internal union affairs).
There are certainly other factors that have driven the precipitous decline in unionization over the last 50+ years, not least of which is globalization. But the point is that, all other things being equal, legislation that increases the involvement of the State in labor-management relations will inevitably, in the long-run, be no more (and quite likely less) beneficial to labor than pro-union legislation that decreases that involvement. This is true even where the State-enhancing legislation is at least nominally pro-labor.
*Readers may recall that I am an unapologetic advocate of the repeal of Taft-Hartley and Right to Work laws.
**Although he references the Wagner Act here, I think Kevin is relying on the Wagner Act as amended by Taft-Hartley, since most of the activities to which he refers were only made illegal by Taft-Hartley.
**There were many state laws used against unions as well, which were at least as potent at restraining unions as the Sherman Act.