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OpEdNews Op Eds    H3'ed 12/12/12

Michigan And The Right-To-Work Laws

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On December 6, 2012 Republican legislators in Michigan pushed through "Right-To-Work' legislation in both the state House and Senate using their Republican majorities. It was a very devious move as GOP lawmakers only announced Thursday morning that they intended to enact the so-called right-to-work bill and did so in the absence of a Democratic opposition in the chambers. The Democrats were boycotting the session to complain about the secrecy and lack of transparency of the hard-line conservative legislature. The conservative Republican governor of Michigan, Rick Snyder, had until then wavered on the timing of proposing such a bill because it was divisive. However, under the strong pressure of the ultra-right wing of the local and national Republican Party, bolstered by the cash in support of the bill by the Koch brothers, Snyder soon changed his tack. Gov. Snyder's eleventh-hour change of heart on the issue surprised many. As the Associated Press reported, the Republican governor "had said repeatedly since his election two years ago that the topic was divisive and not on his agenda. Thursday morning, however, the governor called a news conference to announce that not only would right-to-work legislation be considered, it would be placed on a fast track. By sundown, bills had been introduced and passed without committee votes or public hearings."

It seems that Governor Snyder will sign the bill into law and there will be protests and objections filed to overthrow the bill and return it to the legislature for further study.

This crisis in industrial relations is only the most recent manifestation of a conflict which reaches back to The Statute of Labourers, a law enacted by the English parliament under King Edward III in 1351 to curb the problems raised by the ravages of the Black Death. The Statute of Labourers was a response to the labour shortages caused by the deaths of so many workers and peasants and was designed to stabilize the labour force by prohibiting increases in wages and prohibiting the movement of workers from their home areas in search of improved conditions

The Black Death ravaged Europe between 1347 and 1351. It caused a loss of lives so severe that the result was an immediate labour shortage. Throughout the end of the century English labourers took advantage of their scarcity and demanded higher wages. This damaged the wealth of the landed classes who then made an appeal to the government. One response to this predicament was the Statute of Labourers issued by Edward III in 1351 and directed against the rise in prices and wages.

The statute set a maximum wage for labourers that was commensurate to wages paid before the Black Death, specifically, in the year 1346. These changes, however, failed to take into account the changing economic conditions during the Black Death, and furthermore the period from which wage levels were taken was one of economic depression in England. Thus the wages during the Black Death were set even lower to match those during this depression. It also mandated that able-bodied men and women work, and imposed harsh penalties for those who remained idle

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The following quote from the Statute gives the full flavour of the decree.

"Because a great part of the people, and especially the workmen and servants, have lately died in the pestilence, many seeing the necessity of masters and great scarcity of servants, will not serve unless they may receive excessive wages, and others preferring to begin idleness rather than by labour to get their living; we, considering the grievous incommodities which of the lack especially of ploughmen and such labourers may hereafter come, have upon deliberation and treaty with the prelates and the nobles and learned men assisting us, with their unanimous counsel ordained:

That every man and woman of our realm of England, of what condition he be, free or bond, able in body, and within the age of sixty years, not living in merchandize, nor exercising any craft, nor having all his own whereof he may live, nor land of his own about whose tillage he may occupy himself, and not serving any other; if he'd be required to serve in suitable service, his estate considered, he shall be bound to serve him which shall so require him; and take only the wages, livery, meed, or salary which were accustomed to be given in the places where he oweth to serve, the twentieth year of our reign of England, or five and six other common years next before.

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If any reaper, mower, or other workman or servants, of what estate or condition that he be, retained in any man's service, do depart from the said service without reasonable cause or license, before the term agreed, he shall have pain of imprisonment; and no one, under the same penalty, shall presume to receive or retain such a one in his service.. . . . [i]

As much of English Common Law was the foundation of the law of the United States the subsequent development of the Common Law (including the Statute of Labourers) on employment and self-help in England arrived in the U.S. as the Conspiracy Doctrine. In short, when a group of workers gather together to raise their wages or demand benefits from their employer, the mere fact of their gathering was a conspiracy under the common law and a restraint of trade. There were three main currents of thought developed in English common law which had a strong effect on U.S. labour law: (1) the Conspiracy Doctrine; (2) The doctrine that interference with the operation of a business or a lawful calling is a deprivation of property; and (3) The doctrine of restraints on trade.

Along with the labour aspects of the Common Law which arrived in the United States from England there was also the tradition of the guilds which regulated the crafts. Shipwrights, masons, shoe makers, leather workers, rope makers, wood workers, etc. all found their way to the former British colony, and set up braches in the traditions of guild organisation. The first organised union in the U.S. was founded in 1792 by the Cordwainers (shoemakers) in Philadephia. They also set up unions in New York and Baltimore. The New York branch of the Journeymen Cordwainers signed an agreement in 1805 which included the provisions of the first Closed Shop. The local business men and bureaucrats were upset. In 1805 the members of the Philadelphia Journeymen Cordwainers were tried for conspiracy after their strike for higher wages. Their strike was an effort to retain wage parity of the Cordwainers in New York and Baltimore. They were charged with combining to raise wages and to injure others. The Cordwainers were forced to disband after being fined and going bankrupt. They were the first union to be tried for conspiracy. The case was decided as Commonwealth v. Pullis.   This battle over the Conspiracy Doctrine had strong political backing.

"The prosecution in Pullis was part of a larger political battle being waged in the United States between the forces of aristocracy (federalism) and those of republicanism (Jeffersonian democracy). Within this ideological battle (which continued with different labels through the early 20th century), the working classes argued that Jeffersonian democracy envisioned a society in which the pursuit of happiness and dignity was the right of each citizen. Under this view, equality was grounded in the opportunity for individuals to participate in public and economic life. With the growth of industry, organized labour was necessary to mobilize citizens to retain their presence in the public sphere. Nothing less than the freedom of the individual was at stake. In short, Jeffersonian democracy placed great value on individuals and defined freedom as autonomy and self-reliance." [ii]

Almost as important as the Conspiracy Doctrine was the doctrine that interference with the operation of a business or with the pursuit of a lawful calling is a deprivation of property. It applies as well to the right of an employee to work as to the right of an employer to vend his product and that it is, at least in its more certain applications, constitutionally protected. The conspiracy doctrine was effectively dispensed with in 1842 with the decision Commonwealth v. Hunt when the Massachusetts Supreme Court held that unions had a right to combine and strike "in such a manner as to best subserve their interests". However the notion that workingmen combining was in itself a restraint of trade has never gone away.

The problem came with the notion of the "Closed Shop". As unions were able to form and gain recognition as a bargaining agent for the workers in a plant or company as the result of an election and certification the union took on several obligations. In addition to preparing and conducting collective bargaining on behalf of the workforce it also took on the job of representing the workers in the policing of the collective agreements through the grievance procedure. While negotiations were often done infrequently, at the time of a contract termination, the grievance procedure was a day-to day obligation. The union had to fight for the rights of all workers governed by its agreement with the management, whether they were members of the union of not. A union sustains itself and pays for the conduct of its duties through the payment of union dues by its members. Sometimes this is done through an automatic deduction of the union dues through "check off" conducted by the management which pays the salaries. Sometimes the union has to collect these directly. The unions argued that as they were negotiating on behalf of all the workers and were obliged to handle the grievances of all the employees all of them should be union members and all should pay union dues. That is the Closed Shop. An employee either should be a member of the union when he takes up employment or should join the union soon after his employment begins.

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There was some resentment against this by both workers and employers. The employers did not want to have to come to the union to use the union pool of labour to provide potential employees and wanted to allow the workers not to join the union as this was a "restraint' on their liberty and free choice. Some of the workers objected, primarily on religious grounds where their religions ordained that they do not join outside organisations. However this was not a major challenge during the scarcity of labour during the Second World War. When the war ended and the military forces were demobilised there was an over-abundance of labour. The employers felt that they should be able to reduce wages from wartime levels and restrict some of the additional fringe benefits which had accrued during wartime employment. The issue on which they chose to fight organised labour was on the Closed Shop.

The employers used their considerable political weight to support the passage of the Taft-Hartley Act of June 1947 (the Labor-Management Relations Act). It was passed over the veto of the President Harry S Truman and reflected the post-war power of the Republican Party and its fixation on anti-Communism and the preparations for the Cold War and McCarthyism. The Taft--Hartley Act outlawed the closed shop. The union shop rule, which required all new employees to join the union after a minimum period after their hire, was made illegal. It became illegal for any employer to force an employee to join a union. The unions had prepared for this restraint by creating the "Agency Shop" in which workers in the bargaining unit who do not wish to join the union are not forced to do so but must pay a fee to the union for its representation of the workers in collective bargaining and the grievance procedure. The act declared the closed shop illegal and permitted the union shop only after a vote of a majority of the employees. It also forbade jurisdictional strikes and secondary boycotts. Other aspects of the legislation included the right of employers to be exempted from bargaining with unions unless they wished to. The act forbade unions from contributing to political campaigns and required union leaders to affirm they were not supporters of the Communist Party. This aspect of the act was upheld by the Supreme Court on 8th May, 1950. The Taft-Hartley Act also gave the United States Attorney General the power to obtain an 80 day injunction when a threatened or actual strike that he/she believed "imperilled the national health or safety".

Section 14(b) of the Taft--Hartley Act authorised individual states (but not local governments, such as cities or counties) to outlaw the union shop and agency shop for employees working in their jurisdictions. Under the "Open Shop Rule", an employee could not be compelled to join or pay the equivalent of dues to a union, nor could the employee be fired if he joined the union. In other words, the employee had the right to work, regardless of whether or not he is a member or financial contributor to such a union. When it was passed by Congress Truman denounced it as a "slave-labour bill".

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Dr. Gary K. Busch has had a varied career-as an international trades unionist, an academic, a businessman and a political intelligence consultant. He was a professor and Head of Department at the University of Hawaii and has been a visiting (more...)
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