Tuesday, August 20, 2013

Inviolate Rights—For One Side

Federal Judge Walter J. La Buy has decided that the Lea Act, or “anti-Petrillo law,” is unconstitutional. The Lea Act makes it unlawful to use “force, violence, intimidation, or duress” to “coerce, compel, or constrain” a broadcasting company to employ any “person or persons in excess of the number of employees needed...to perform actual services.” Judge La Buy proceeds to argue that “the number of employees needed” cannot be objectively established, and that the law would therefore make the guilt or innocence of the union wholly dependent upon the judgment or “whim” of the employer.

Such a conclusion ignores the fact that it is not the number of employees that matters, or even the objective necessity for their services. It is the use of “force, violence, and intimidation” to impose upon employers more workers than they want. Has it become “unconstitutional” to forbid unions to use force, violence, and intimidation” for this purpose—or any other?

Candor must concede that the Lea Act is inherently foolish. Judge La Buy correctly argues that under the Lea Act “broadcasting station employees are singled out and held to a more rigid rule than any other employees.” The Lea Act implies that it is all right for telephone unions, or railway unions, or barber shop unions, to force employers to hire more men than they need. It implies, in fact, that it is all right for a union to force any employer whatever to do anything else it can think of.

At least one ground on which Judge La Buy holds the Lea Act to be unconstitutional that it makes acts unlawful “when applied to these [broadcasting] employees and no others”—could have been avoided if the Lea Act had simply made it unlawful for unions to try to secure any end at all by “force, violence, intimidation, or duress.” But such a law, stating a rule that the common law has always been supposed to apply to everyone anyway, ought not to be needed at all.

Judge La Buy’s decision is a fresh reminder of how one-sided the application of so-called constitutional guarantees has become. One ground on which he sets aside the Lea Act is this: “A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Yet under the Wagner Act it is an unfair labor practice for an employer “to refuse to bargain collectively.” And nobody has yet succeeded in defining precisely what this means.

In 1940, a House committee sought to reduce the vagueness of this requirement by proposing that it should not be construed as “compelling or coercing either party to reach an agreement or to submit counterproposals.” The American Federation of Labor succeeded in having this proposed definition withdrawn.

Judge La Buy, again, argues that “peaceful picketing” is “a form of speech and discussion that cannot under the First or Fourteenth Amendments be curtailed by any legislative enactment.” Let an employer denounce a union, however, in the unbridled terms in which the union denounces him, or let him advise his employees not to join that union, and he will soon find that his own freedom of speech is not beyond dispute.

“Under the Thirteenth Amendment,” continues Judge La Buy, defending strikes, “the right of any worker to leave his employment at will, or for no reason at all, is protected and that right is inviolate.” But let an employer try to discontinue employing somebody at will, or for no reason at all, and he will soon find that his right to do this is anything but inviolate.

It is not because the coal unions enjoy the unrestricted right to strike that John L. Lewis did and can at any time bring the nation’s coal industry to a halt. It is because the coal operators, under the Wagner Act, have lost the right to negotiate with anyone else but Mr. Lewis. It is because they have lost the right to drop strikers and hire other permanent workers to take their place. The Lewis union, because of ill-advised strikes beginning in 1927, had fallen almost completely apart in 1932. It was Section 7a of the NRA in 1933, supplanted by the Wagner Act in 1935, that put the union together again, and at last put it in undisputed control of the entire coal industry.

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