Central to any improvement in labor relations is revision of the Wagner Act. Any discussion which ignores the need for this must be set aside as unrealistic. The Wagner Act overshadows all labor relations and all wage negotiations, even where there is no direct appeal to it. It would not be difficult to suggest a dozen major amendments to the act, all of which would improve it. But would they improve it enough to make it do what it ironically professes to do—“diminish the causes of labor disputes”? The real question is not so much what amendments should be added to the Wagner Act as what part of it, if any, it would be wise to retain.
Let us take in illustration Senator Ball’s proposal to strip from the Wagner Act its legalization of the closed shop, and to write into the law, instead, a provision that membership in a labor union must not be a condition of employment. Such a change would remove an obvious self-contradiction in the act. Its supposed central principle makes it an unfair labor practice for an employer “by discrimination in regard to hire or tenure...or condition of employment to encourage or discourage membership in any labor organization.”
If this principle is to be retained in law, then it should be retained in just this two-sided form. But this would make it logically compulsory to outlaw the closed shop, maintenance-of-membership clauses, the check-off, or any other device which makes employment contingent on union membership or compels the individual worker to join or stay in a union.
Could a two-sided law of this sort be enforced? If not, should the present purely one-sided act be retained? That act forces the employer (though not the union) to “bargain collectively.” No one has yet succeeded in saying precisely what this means. It has been interpreted as meaning that the employer cannot break off negotiations even when he is slandered and abused by union representatives. It has even been interpreted as compelling the employer to make some kind of counteroffer, “to meet a union half-way,” no matter how unreasonable its demands or what he can afford.
The employer is not allowed to “dominate or interfere with” any union or to “restrain or coerce” any employee in the exercise of union rights. These fair-seeming provisions have in practice been used to deprive employers of ordinary freedom of speech. J. Warren Madden, then chairman of the National Labor Relations Board, told a Senate committee in April 1939 that an employer who called a union leader a Communist might be held guilty of coercion under the Wagner Act even if his statement were completely true.
By the mere way in which it defines an “employee,” the Wagner Act makes it illegal for an employer to discharge a striker and hire another permanent worker to take his place. Add to all this the failure of local governments to protect against violence and intimidation the workers who wish during a strike to continue peacefully at their jobs. Add the practice in some states of paying unemployment insurance to strikers. By government policy, all the natural risks have been taken out of striking. It has been made all but impossible for a union to lose a strike. Should we be surprised that unions now keep raising their demands and threatening new strikes?
A commonly proposed remedy is to leave all present restraints on employers but to “balance” them by corresponding restraints on labor. It may be doubted whether such restraints would be enforceable. What we need at bottom is not “anti-labor legislation” but the repeal of anti-employer legislation. People are not born employers; they become employers by choice, and they can quit by choice if too much discouraged. Unless we restore to the employer the freedom to select his own employees, the freedom to hire.