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BUSINESS--A PROFESSION Chapter 2
THE EMPLOYER AND TRADES UNIONS
An address delivered at the annual banquet of the Boston Typothetæ, April 21, 1904, for whom Mr. Brandeis had acted as counsel in a memorable struggle with the Typographical Union.
Mr. Chairman and Gentlemen:—
I am glad to be with you. A reunion of veterans is enjoyable, particularly so if the war has been successful - properly so if the right has triumphed, as in the recent struggle in which we were engaged.
Let me review the facts:—
Prior to February 1, 1901, the minimum wage of compositors in Boston was $15 per week. A three years' agreement then entered into between your association and the Boston Typographical Union No. 13 fixed the minimum weekly wage at $16 for the first year, and $16.50 for the two succeeding years. Shortly before February 1, 1904, the Union demanded that the minimum wage be further increased to $18. You offered an increase to $17 for the first year, and $18 thereafter. The Union rejected your offer, and ordered a general strike. On February 1, 1904, the compositors went out.
No principle of trade unionism was involved, nor the question of increased wages for an indefinite period in the future. It was at most a matter of $1 a week for one year—the equivalent of what would be lost by each man in wages if the strike lasted just three weeks. To strike for such a stake was shockingly bad business. It was followed quickly by acts which also shocked the conscience.
The United Typothetæ had made a four years' contract with the International Printing Pressmen and Assistants' Union. This contract provided for arbitration of grievances, provided expressly against sympathetic strikes, and recognized expressly the open shop. In defiance of this agreement and in the face of the protest of Martin P. Higgins, the President of that Union, the Boston Typographical Union No. 13 undertook, by the promise of strike benefits, which in many cases exceeded the wages the men were receiving, to induce pressmen and feeders, who had no grievance whatever, to leave your employ. That was morally wrong. We believed it to be also illegal. You applied to the Supreme Judicial Court of Massachusetts for redress, and were accorded the protection of an injunction.
This was the beginning of the end; but the end itself came in a manner even more desirable. After the strike had continued five weeks, and the men had lost twice the paltry sum for which alone they struck, Mr. Lynch, the President of the International Typographical Union, and other members of its Executive Committee, came to Boston. They investigated the facts. They doubtless realized the hopelessness of the contest. They certainly realized the wrongfulness of inducing pressmen and feeders who had no grievance to go out in defiance of their contract. The strike was declared off —unconditionally. No promise of any kind was made to the compositors, pressmen and feeders who went out. The open shop was formally declared in every office. Many of the men who went out are still without work, and the strike benefits have ceased. The dynasty which for years has governed the Boston Typographical Union with unwisdom is tottering. The secretary has already resigned. The president, it is said, will not seek re-election.
So much for the past: what shall the future be? What should you do to make it an era of peace and prosperity? The answer involves a discussion of certain broad principles which, in my opinion, should govern the relations of employer and employee in all branches of industry, though in their application they would, like every rule, be subject to exceptions more or less temporary, dependent upon the peculiar facts of the individual case.
First. Prolonged peace and prosperity can rest only upon the foundation of industrial liberty. The peace which employers should seek is not the peace of fifty years ago, when the employers were absolute masters of the situation. The peace which the employees should seek is not the peace of mediæval guilds, with their numberless restrictions. Industrial liberty must attend political liberty. The lead which America takes in the industrial world is no doubt due to our unbounded resources; but of these resources none are so great as the spirit and the ability incident to a free people. We lead the world industrially, not so much because the resources of nature are unbounded, as because the faculties and aspirations of men are comparatively unfettered. The prosperity of New England—this poor rich country—is ample evidence of this. We must have, therefore, for the development of our industries, as for the development of our citizens, the highest degree of liberty attainable. Industrial democracy should ultimately attend political democracy. Industrial absolutism is not merely impossible in this country at the present time, but is most undesirable. We must avoid industrial despotism, even though it be benevolent despotism. Our employers can no more afford to be absolute masters of their employees than they can afford to submit to the mastery of their employees, than the individual employees can afford to have their own abilities or aspirations hampered by the limitations of their fellows. Some way must be worked out by which employer and employee, each recognizing the proper sphere of the other, will each be free to work for his own and for the common good, and that the powers of the individual employee may be developed to the utmost. To attain that end, it is essential that neither should feel that he stands in the power—at the mercy—of the other. The sense of unrestricted power is just as demoralizing for the employer as it is for the employee. Neither our intelligence nor our characters can long stand the strain of unrestricted power. Every business requires for its continued health the memento mori of competition from without. It requires, likewise, a certain competition within, which can exist only where the ownership and management on one hand, and the employees on the other, shall each be alert, hopeful, self-respecting, and free to work out for themselves the best conceivable conditions.
Second. The right of labor to organize is recognized by law, and should be fully recognized by employers. There will be in most trades little probability of attaining the best conceivable conditions unless in some form a union of the employees exists. It is no answer to this proposition to point to instances of trade-union excesses and of the disasters which attended them. We believe in democracy despite the excesses of the French Revolution. Nor are claims of the trades unions disproved by pointing to the instances where the best results have been attained in businesses in which no trace of unionism existed. Wise, far-seeing employers act upon the spirit or the hint of union demands instead of waiting to have them enforced. "A word to the wise is sufficient." The steps in advance have been taken often for the express purpose of preventing trades-unionism from finding a lodgment, often, unconsciously, as a result merely of the enlightenment which comes with the necessary thinking that trade-union agitation compels. Such successful businesses are, indeed, the greatest triumphs of unionism; and their marked success is due in large part to the fact that they have had all the advantages of unionism without having to bear the disadvantages which, in their imperfect state, attend the unions. We must not forget the merits of unionism in our righteous indignation against certain abuses of particular unionists.
Most people admit the immense service which the labor unions have rendered to the community during the last twenty-five years in raising of wages, shortening of the hours of labor, bettering of conditions under which labor is performed, and protecting women and children from excessive or ill-timed work; but the services which the labor unions can render in the future are even greater than they have rendered in the past. The employer needs the unions "to stay him from the fall of vanity"; the employees need them for their own protection; the community needs them to raise the level of the citizen.
Strong, stable trades unions can best serve these ends. The leaders of strong unions only will adequately feel the terrible responsibility resting upon them. The leaders of stable unions only can get the experience essential to an adequate performance of their duties; and experience almost invariably makes the leaders reasonable and conservative. Only long service as a labor leader can give that knowledge of the employer's side of the controversy which is essential to its just and proper settlement. Peace and prosperity, therefore, are not to be attained by any attempt to weaken trades unions. Our hope lies rather in their growing strength and stability.
At all events, the employer, whether he wills it or not, has in most trades to reckon with the union. What shall his attitude be?
Third. Employees are entitled to be represented by union officers. A short time ago it was common for an employer not to "recognize the union." That is, although he knew a large number of his employees were members of the union, he refused to negotiate in matters relating to the employees with its officers, on the theory that the employer should deal directly and only with his employees, and may not brook the interference of an outsider. This plausible but unsound theory has yielded generally to facts and to reason. One hears little now of employers arbitrarily refusing to deal with the chosen representatives of union employees. But, of course, recognizing that union officers are the proper representatives of the employees in any matter requiring consideration by the employer does not mean yielding to union demands, any more than recognizing a customer means conceding his demands.
How, then, shall the employer deal with the union's representative when a demand is made to which he feels he cannot accede, or when a controversy has already arisen? Many are ready with the answer: Arbitration; others again say: Conciliation. Arbitration and conciliation are each at times wise, but each involves the intercession of third parties. In arbitration it is the referee; in conciliation, the common friend. Ordinarily, neither is needed.
Fourth. Employers and employees should try to agree. A very able man, who taught the law of partnership at Harvard, once asked the class, "What shall be done if a controversy arises between partners?" The students suggested one legal remedy after another, —a receiver, an injunction, a dissolution. "No," said he, "they should try to agree." In the most important sense, employer and employee are also partners. They, too, should try to agree; and the attempt made in a properly conducted conference will generally be successful.
Nine-tenths of the serious controversies which arise in life result from misunderstanding, result from one man not knowing the facts which to the other man seem important, or otherwise failing to appreciate his point of view. A properly conducted conference involves a frank disclosure of such facts—patient, careful argument, willingness to listen and to consider.
Bluff and bluster have no place there. The spirit must be, "Come, let us reason together." Such a conference is impossible where the employer clings to the archaic belief commonly expressed in the words, "This is my business, and I will run it as I please." It is impossible where the labor representative, swaggering in his power to inflict injury by strike and boycott, is seeking an unfair advantage of the employers, or would seek to maintain even a proper position by improper means. Such conferences will succeed only if employer and employee recognize that, even if there be no so-called system of profit-sharing, they are in a most important sense partners, and that each is entitled to a patient hearing, with a mind as open as the prejudice of self-interest permits.
The potent force of right reasoning in such conferences can hardly be overestimated. If applied with tact and in the aid of right action, it is almost irresistible. But it must be used only in the right spirit and in the aid of right action.
Fifth. It is necessary that the owners or the real managers of the business should themselves participate in the conferences, partly because the labor problem requires the best thought available and the most delicate treatment, and partly because the employees feel better satisfied and are apt to receive better treatment when they are dealing with the ultimate authority and not with an intermediary. Such conferences are necessarily time-consuming, but the time cannot be better spent. They are as instructive to the employer as to the employees. We must remember that there are no short cuts in evolution.
The greatest obstacle to the success of such conferences is the suspicion of the labor representatives—a suspicion due partly to ignorance of the employer's actual attitude, partly to knowledge of individual acts of unfairness of other employers, and partly also to a belief, which is frequently erroneous, that the employer will get some advantage through his supposed superior skill and ability. Suspicion yields only to experience; and for this reason, among others, the conferences are most successful when participated in by labor leaders of long standing. The more experienced the representative, the better.
But conferences, though wisely conducted and with the best of intentions on either side, do not always result in agreement. Men fail at times to see the right; and, indeed, what is right is often in doubt. For such cases arbitration affords frequently an appropriate remedy. This remedy deserves to take its place among the honorable means of settling those questions to which it properly applies. Questions arise however, which may not be arbitrated. Differences are sometimes fundamental. Demands may be made which the employer, after the fullest consideration, believes would, if yielded to, destroy the business. Such differences cannot be submitted to the decision of others. Again, the action of the union may appear to have been lawless or arbitrary, a substitution of force for law or for reason.
What, then, should be the attitude of the employer?
Sixth. Lawless or arbitrary claims of organized labor should be resisted at whatever cost. I have said that it is essential in dealing with these problems that the employer should strive only for the right. It is equally as important that he should suffer no wrong to be done unto him. The history of Anglo-Saxon and of American liberty rests upon that struggle to resist wrong—to resist it at any cost when first offered rather than to pay the penalty of ignominious surrender. It is the old story of the "ship money," of "the writs of assistance," and of "taxation without representation." The struggle for industrial liberty must follow the same lines.
If labor unions are arbitrary or lawless, it is largely because employers have ignominiously submitted to arbitrariness or lawlessness as a temporizing policy or under a mistaken belief as to their own immediate interests. You hear complaint, too, of lawless strikers in the legislature and in the city council; but, if lawlessness and corruption exist there, it is largely because the great corporations and moneyed interests have forgotten the good old maxim, "Not one cent for tribute, but millions for defence."
The world was aghast last summer at the disclosure of Sam Parks's corruption. The desecration of Labor Day by his glorification, after he had been sentenced to Sing Sing, was shocking to every sense of decency. This false loyalty of the unionists very properly alienated from trades unions much of the public favor which John Mitchell had gained for them. But, after all, Sam Parks's corruption and the terrible losses and suffering which attended the prolonged strike were largely the fruit of the employers' wrong-doing. Who bribed Sam Parks? The rich contractors, —pre-eminently the huge corporations on whose boards of directors sat many of the leading financiers of the country. They corrupted Sam Parks or fed his corruption, corrupted him either to get an undue advantage over their employees or over their competitors, or as a seemingly inexpensive way of meeting what they deemed to be unreasonable and extortionate demands. At last employers, employees, and a large part of the community paid the penalty. Fortunately, the world is so ordered that we must pay the penalty for our sins, be they sins of commission or omission, of doing wrong or of suffering wrong to be done unto us.
You may compromise a matter of wages, you may compromise a matter of hours—if the margin of profit will permit. No man can say with certainty that his opinion is the right one on such a question. But you may not compromise on a question of morals, or where there is lawlessness or even arbitrariness. Industrial liberty, like civil liberty, must rest upon the solid foundation of law. Disregard the law in either, however good your motives, and you have anarchy. The plea of trades unions for immunity, be it from injunction or from liability for damages, is as fallacious as the plea of the lynchers. If lawless methods are pursued by trades unions, whether it be by violence, by intimidation, or by the more peaceful infringement of legal rights, that lawlessness must be put down at once and at any cost.
Likewise industrial liberty must rest upon reasonableness. We gain nothing by exchanging the tyranny of capital for the tyranny of labor. Arbitrary demands must be met by determined refusals, also at any cost.
In our international relations we are told that the best assurance of peace lies in preparedness for war. This is equally true in the industrial world. The union has its strike fund. The employer must also pay in some form the premium for insuring an honorable peace. He has adopted long since the guaranty fund for his credits, the depreciation fund for his machinery. He should now adopt another reserve fund to guard him against the losses attendant upon strikes, and, above all, should so organize his business as to be less vulnerable to them. Known weakness invites arbitrary attack, as opportunity makes the thief.
These are the principles by which alone the labor problem can be satisfactorily solved. They are broad, indeed; for they are the eternal principles of LIBERTY, FRATERNITY, JUSTICE, HONOR.
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