Labor or own interests while involved in a labor dispute. ganizations must eventually assume responsibility for the fulfillment of their collective agreements or collective bargaining will become impossible: but they ought hardly to be blamed for refusing to incorporate as long as incorporation is likely to subject them to damages which could not be imposed if our courts consistently refused to recognize the worn-out doctrine of conspiracy. Unfortunately the legal expression of rights is usually a century behind industrial conditions. However, recent decisions. presage a rapid evolution of the law defining and regulating the obligations of labor contracting in its collective capacity. The further development of our law will undoubtedly make labor organizations responsible for the fulfillment of their agreements but will remove all causes of action for damages against unions, excepting such as are either expressed or directly implied in the contract under which damages are claimed. To make labor unions responsible for incidental injuries to other parties while they are peacefully seeking to improve their own condition through a strike or boycott is to place them on a different footing. from individuals or other ogranizations. "A corporation may while pursuing its own interests injure another but it is not, therefore, held responsible, and our courts ought not to hold unions responsible. "'26 9726 Our law has finally attained to quite a consistent expression of the right of labor to combine. Its next step must be a guarantee that the right shall be effective by removing all liability for damages which are based upon the old common-law doctrine of conspiracy. With the danger of this extraordinary liability removed, labor organizations will begin to look with more favor assessment as above shall be made. This not to apply to officers or committeemen who advise a man to leave the employ of the company. It is agreed whenever any mine foreman or other representative of the company persists in violating the agreement, or in using abusive language to employes, without sufficient provocation, the local union shall have the right to prefer charges against said foreman or representative of the company to the Joint State Board of Miners and Operators, and if the charges are sustained, the operator agrees to remove such foreman or other representative of the company, or the Joint Board may mete out such other merited punishment as the exigencies of the case may demand. 28 Ey, Richard T. Class room lectures on the Distribution of Wealth, Madison, 1898, Book 1, part 2, chap. 5, par. IX. upon incorporation. With labor organized into responsible corporate bodies collective bargaining will be put on a firmer basis. As the representatives of mutually responsible bodies, joint arbitration and conciliation boards within the trade will be better able to adjust conflicting interests through voluntary action. Collective bargaining may thus become a strong force making for industrial peace. Rights of the Individual Member The question of the rights of the individual member within the organization brings us to the final test as to the possibility of developing collective bargaining along lines which shall be consistent with personal liberty. How can unions enforce their own rules without exercising a tyranny which might become inimical to personal rights? A sufficient guarantee against such a contingency seems to be the democratic government of labor organizations. Most of our older unions employ the referendum in deciding questions of policy, and provide elaborate systems of appeal for cases of individual grievances. It seems hardly probable that members would establish regulations subversive of their own personal rights in a society in which each has an equal vote. A more probable outcome might be such a development of corporate responsibility on the part of unions toward individual members, that individual members could legally restrain officers from using beneficiary funds for strike purposes. Such a result would greatly impair the fighting strength of unions and it is probable that we shall follow the English law27 on this point, which enables leaders to exhaust the accumulated funds of the union in times of labor war because contracts between unions and their members cannot be enforced in the courts. Yet, even this delegation of power to leaders, great as it seems, is in reality, but an expression of the collective authority of the organization and must be exercised with the greatest discretion or it becomes self-destructive. Moreover, as organizations grow in strength and stability the necessity of employing beneficiary funds for the purpose of self-preservation gradually disappears. 27 Trade Union Act, 1871, 34 and 35 Vict. c. 31. If the rights within the organization did not guarantee to the individual members greater privileges and strength than is possible for them to attain individually, there would not be sufficient motive for combination. The conservative, prudent action of our older trade unions seems to justify the view that the further development of labor organizations will so extend the personal rights of labor in industry, that those rights will serve their members in lieu of property rights.28 This idea of a development of personal rights, which shall serve as a substitute for property rights, gives us a broadened concept of personal liberty. The development of the labor contract from the individual bargain to the collective agreement thus brings us from the stage of individual political liberty to a condition in which the individual laborer finds a higher personal liberty through associated action. Under a system of domestic industry, political liberty seemed adequate to secure the rights of the individual in society. Anglo-Saxon constitutions and Anglo-Saxon legislation embody this principle and emphasize over and over again the importance of individual liberty. But what is liberty for one century may become tyranny for the next unless there is a constant readjustment to new conditions. The acquirement of political liberty was only one step in the evolution of the highest form of personal liberty and the complex organization of present industrial society is demanding industrial liberty as the necessary complement of political liberty. But how is this liberty to be acquired? It cannot be bestowed as a gift by the state. The state may extend liberty through wise regulation; but real liberty is not a gift. It is a right to be won and defended by those who would enjoy it. The past century presents a struggle for the acquisition of new rights on the part of labor in order that it might gain a position where its rights should become co-ordinate with the new duties and obligations which it necessarily assumed under a complex organization of industry. Labor has insisted upon rights of asso 28 Adams, Henry C. Address before the Congress on Industrial Conciliation and Arbitration. Chicago, 1894, 63-68. ciation and the right of collective action until the force of its insistence has enacted new legislation and the weight of its argument has affected judicial decisions. It is the alert, aggressive action of labor demanding a larger voice in the control of industry and insisting upon a broader interpretation of personal rights which must finally transform our idea of political liberty into the more comprehensive concept of industrial liberty. But the fullest realization of industrial liberty can be arrived at only by conserving all of the rights and duties which have been acquired in the long struggle for political freedom. It is not a turning away from, but a further development of our Anglo-Saxon liberty which will bring about a more democratic industrial society. Restrictions and limitations by the state play a necessary part in the adjustment of reciprocal rights in forming the labor contract, yet they serve rather as a restraining than as a positive force. The further develpoment of personal rights including the rights of association and of collective action will tend to equalize the strength of the two parties to the labor contract and will dispose of the necessity of state interference except in so far as the private agreement affects the welfare of the general public. The trend of events in our industrial life has modified our old conception of freedom of contract and our concept of individual liberty is being widened to embrace the individual in his social relations. The further evolution of our jurisprudence will conform to this change in our social philosophy and will define the personal rights of the individual from the broad standpoint of social obligation. Finally, the ethical sense of our people will sanction this development because it will be found in line with social well-being.29 20 von Ihering describes the evolution of the law in the following concise statement: "The end of the law is peace. The means to that end is war. All the law in the world has been obtained by strife. Every principle which obtains had first to be wrung from those who denied it; and every legal right, the legal rights of a nation as well as those of individuals,-supposes a continual readiness to assert it and defend it. The law is not mere theory, but living force. For the idea of the law is an eternal Becoming; but that which Has Become, must yield to the new Becoming." "The Struggle for Law." Translated from 5th German edition by John G. Lalor. CHAPTER II THE INDUSTRIAL BASIS THE GROWTH OF INDUSTRIES AND THE ORGANIZATION OF LABOR We have noted how the attitude of the law has changed toward labor during the past century. The question remains,— how did this change come about? What were the forces at work? How did reciprocal rights and duties between employer and employee adjust themselves under an ever changing and expanding industry? How were industrial rights on the part of labor gradually extended and how was general recognition of such rights and privileges finally won? In the evolution of organized industrial life in the U. S. we pass from the individual workshop to large scale production and from the individual employer to the representative of consolidated industries employing thousands of men. Parallel with the growth of industries there has gone the development of collective action on the part of labor and a close analysis of our industrial history reveals more than an accidental connection between these two phenomona. When we trace the development from individual to organized industry we are confronted at every stage with the union of employees seeking through organization to place themselves in a more advantageous position for bargaining with their employers. The relations established between employer and employee from time to time are the result of the struggle of conflicting interests. The rights secured and the obligations assumed by the two parties to the labor contract measure the relative strength of the interests involved. The conditions established are as varying as are the forms of industrial organization and one of the most significant features in our economic history is the close adjustment of the labor contract to the general features of our industrial development. |