Mining the Commons

December 9, 2008

I’ve been reading the Supreme Court case of NLRB v. Exchange Parts, Inc, 375 US 405 (1954), and it has a literary flair about it that is often missing from court opinions. The issue at hand was whether employers are allowed to confer benefits on employees during a union representation campaign. It was clear by this point that employers could not threaten or coerce employees during such a campaign in order to chill organizing activity, but there remained the question of whether they could shower them with benefits. Judge John Minor Wisdom handled the case first in the 5th Circuit Court of Appeals. His response to this question:

“It is impressive logomachy to turn ‘allurements’ into ‘coercion’ by divining a secret purpose. It is good, homey, country-lawyer advocacy to argue that a carrot on a stick may have the same effect on a donkey as a club. But a carrot is not a club. Labor is not a donkey. Persuasion is not coercion.” (304 F.2d 368, 376)

To this, Justice Marshall Harlan of the Supreme Court responded:

Although in that case there was already a designated bargaining agent and the offer of ‘favors’ was in response to a suggestion of the employees that they would leave the union if favors were bestowed, the principles which dictated the result there are fully applicable here. The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged.

Labor as a donkey. A fist inside a velvet glove. Amazing!

-Moshe Zvi Marvit


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