The Desirable Industrial Peace by Louis D. Brandeis

An address delivered to the Industrial Economics Department of the National Civic Federation on April 25, 1905.

Gentlemen: We do want industrial "peace with liberty," but in this country, at least, material well-being is an essential condition of liberty. In most trades some form of union of employees is required for the attainment or preservation of this liberty. The single workman, standing alone, is in the power–at the mercy, of his employer. The union, while it works for liberty in curbing the power of the employer, necessarily restricts in some measure the freedom of its members. This is an inevitable incident of organization. To secure the benefits of society, including political and civil liberty, we surrender to society a large part of the rights and privileges man would be free to exercise in a state of nature. The trade union exacts from its members no more.

It is not true that the "success of a labor union" necessarily means a "perfect monopoly". The union, in order to attain or preserve for its members industrial liberty, must be strong and stable. It need not include every member of the trade. Indeed, it is desirable for both the employer and the union that it should not. Absolute power leads to excesses and to weakness: Neither our character nor our intelligence can long bear the strain of unrestricted power. The union attains success when it reaches the ideal condition, and the ideal condition for a union is to be strong and. stable, and yet to have in the trade outside its own ranks an appreciable number of men who are non-unionists. In any free community the diversity of character, of beliefs, of taste–indeed mere selfishness–will insure such a supply, if the enjoyment of this privilege of individualism is protected by law. Such a nucleus of unorganized labor will check oppression by the union as the union checks oppression by the employer.

THE UNION SHOP AND LIBERTY

The cause of industrial liberty will ordinarily be best subserved by an open shop in which a strong union has a predominating influence. But it is not true that the closed shop–that is, the shop open to all willing to become union men, and to such only–will never give us peace with liberty. The union shop is not necessarily prejudicial to industrial liberty; its adoption may, at times, be indispensable to the attainment or preservation of liberty. The conditions in a trade may be such that the union must, temporarily, endeavor to enforce the union shop by every legal means in its power.

Such a condition arises, for instance, where the employer, while pretending to run an open shop, is actually and insidiously discriminating against union men. It may arise even if the employer's attack be an open one. In such cases, adoption of the union shop becomes a proper war measure. It may possibly, even in the absence of direct attack by the employer, be at times an instrument which it is desirable to use temporarily in order to secure for the union the strength necessary to enable it to exert a predominating influence in the trade. The analogy to the tariff protection of infant industries suggests itself.

NON-UNION COMPETITION

Again, if the conditions of a trade are such that non-union labor can find a fair field for employment, the existence within that trade of shops which are open only to union men may be most conducive to the general welfare. The union then works out its regulations and demands under the spur of the competition of non-union shops. The non-union employer works out his relations to labor under the spur of unionism, the knowledge that only very enlightened self-interest can prevent the union from finding lodgment in his establishment, or the loss of his best employees attracted elsewhere by conditions secured in union shops

If then, the union shop may be at times an effective measure for securing the existence or the efficiency of the union, which is in itself essential to the industrial liberty of the employees, its introduction should not be condemned absolutely and without qualification, unless it be that the union shop is necessarily illegal as infringing some fundamental inalienable right of the employer or of non-union workmen. There are indeed a few cases in some of our inferior courts which seem to declare that agreements with employers to establish the union shops are illegal as interfering with the employer's "right of contract", as unjustly discriminating in favor of one class, and thereby interfering with the workman's "right to work", and as tending to create a monopoly. None of these positions seem tenable.

THE RIGHT OF CONTRACT

It does not interfere with the employer's right of contract to induce him to enter into a certain contract. Every contract which any person enters into interferes in some way with his future freedom of contract or other action. That is the very purpose of entering into a contract. The "right of contract" is the right to restrict one's freedom of action. This sacred right of contract is limited only by the requirements of public policy as expressed either in rules of the common law or of statutory prohibition. The privilege for which employers have most strenuously contended in the past is the right to employ, that is to contract with, whom they please–union or non-union men. The employer exercises this privilege when he elects from day to day, to employ union men. No sufficient reason suggests itself why he should not be permitted to agree in advance for a limited time, or until further notice, that he will employ only union men.

It is not an unjust discrimination against certain workmen, or an interference with, their right to work, for a private employer to employ only persons of a certain class. Nor does an agreement to make his selection on such lines, however capricious or unreasonable, interfere with any one's rights. A discrimination between two classes of workmen cannot be unjust unless there is a right not to be discriminated against, in other words, a right to equality of treatment. So far as relates to private employment, there is no such right. The right to work for a private employer is merely the right to be allowed to work if one can find a willing employer.

An agreement to employ union men only undoubtedly tends in some degree to a monopoly, but the tendency ordinarily would be very slight and remote. It certainly is not the law that every contract which tends however slightly towards the creation of a monopoly is unlawful. If it were, no large manufacturer could contract to increase his plant, for such a course tends inevitably towards securing a larger share of the market, thereby driving out competition and to that extent tending towards a monopoly.

In the case of strikes, employers usually assert with much vehemence that in the absence of intimidation, violence, or coercion, the places left vacant by union strikers could be readily filled by non-union men. It is conceivable that the union control in one or all branches of trade might become so great, or be exercised in such a manner as to present the evils attendant upon monopoly and call for intervention by law. But if that time should come there would be no occasion for agreements to employ exclusively union men.

EXPERIENCE MUST TEACH

Experience the natural law in the industrial world will alone teach us the best course to be pursued, and that course, when laid out, will doubtless follow eventually the lines of liberty:

In the first place, liberty on the part of the employer to agree with the union for a closed shop whenever the inducements offered are sufficient to lead him to voluntarily renounce for a time his absolute freedom to choose such workmen as he pleases. Then, a recognition by the unions that their interests will be best subserved by omitting all attempts to restrict the choice of the employees, and devoting their efforts to increasing the attractions of unionism for the workmen, and to removing the incidents of unionism most objectionable to the employer. The wisest labor leaders have already taken this position, and have among other things declared the policy that the union label must be regarded as a valuable privilege to be acquired through assent to the closed shop, but that where such assent and hence the union label are withheld, the union workman may still work side by side with his non-union brother.

The union label means today--goods made in a union shop. It may come to mean goods made under union conditions, whether produced in a closed or an open shop. Whichever its meaning in a given case, the [label] is the most appropriate means of conveying information to which every citizen in a free country who is interested is entitled. It is an instrument of persuasion, not essentially differing from the manufacturer's trade mark, under which he seeks to induce customers to buy only a certain brand--"None genuine without our label." The Consumers' League adopts the same method of informing the public what articles are made under conditions it regards as fair and wholesome, and urging special favor for such goods by the consumer. To prohibit the use of such means of conveying information would appear to be an appreciable abridgement of the right of free speech. To prohibit American citizens from acting upon such information would be a serious infraction of their liberty.

We want industrial peace with honor--not the honor of the combatant, but that honor which "is the finest sense of justice that the human mind can frame" and which in a democracy must include something of fraternity as well as liberty.

In such a peace--with liberty, justice and fraternity--and hence with honor, the public is profoundly interested, because it involves the whole future, the success or the failure, of democracy. And the public which is so interested is not "three quarters of the American people" but the whole.