25 OCTOBER 1946, Page 9

THE CLOSED SHOP

By PROFESSOR G. W. KEETON

THE claim of trade unionists to establish a closed shop in every type of paid employment is an issue which unfortunately has been confused with several others. It demands to be considered in isolation, however, for it raises constitutional issues as grave as those involved in the execution of Charles I or in the General Strike of 1926. One of the inalienable rights of the British citizen is the right to pursue his craft, trade or employment so long as there is a demand for his services. This is not only the private right of the individual citizen. It is also a broad general principle of public „policy, which finds application in many branches of the law. If an employee leaves the service of his employer it may be that the employer seeks to secure protection from the future competition of his employee. Such restrictions will normally be embodied in covenants between them, entered into either when the employment was undertaken or at a later period. The Courts have always scrutinised such covenants very carefully, and have refused to protect an employer simply from competition by a former employee, although they will grant an em- ployer an injunction to restrain an employee from making improper use of trade secrets. The community, the Courts have said repeatedly, has an overriding interest in ensuring that every worker, of whatever type, shall make the widest possible use of his skill.

The same principle underlies another series of decisions, again dealing with the restraint which an employer can impose upon an employee. Contracts with employers sometimes contain, in addition to the usual positive terms of employment, negative stipulations that the employee will not serve any other employer so long as the original contract of service subsists. Now it is well known that the Courts will not grant specific performance of contracts of personal service, since the Court is not in a position to ensure that its decree is pro- perly performed. On the other hand, the Court has frequently granted injunctions restraining employees from infractions of the negative stipulations in their contracts of service. Once again, how- ever, the Courts have been careful to circumscribe their powers by the limiting proviso that an injunction will never be granted if its effect, in substance, is to compel the employee either to comply with the contract or to starve. In such a case, an employer would be restricted to seeking damages for breach of contract. Once again, the basis of this limitation is the interest which the community as A whole has in the full use of the skill of its members. The Common Law, in fact, had framed the doctrine of "full employment" as a broad principle long before modem theorists had thought of it.

This attitude of the Common Law is responsible for some of the early decisions in trade-union cases. A trade union is, in origin and essence, a combination, whether of workmen or employers, to restrain trade or employment—possibly for important social ends. Before the trade-union legislation of the past seventy-five years, there- fore, trade unions frequently found themselves in conflict with two important branches of the Common Law—the law of conspiracy and the law of restraint of trade. That is still the position in some parts of the United States. But although legislation in England has conferred upon trade unions immunities and privileges far wider than those enjoyed by any other type of association, those immunities are not yet absolute. If a trade union steps beyond the limits of statutory protection the application of the Common Law to its acts will call for consideration afresh, if those acts are challenged in the Courts.

In the light of these considerations the claim of the trade unions to a " closed shop " is a very remarkable one. It amounts to a claim that, if a person who has been trained for a particular employment is to be allowed to pursue his employment, he must join an associa- tion which is approved by a body which has neither constitutional existence nor legal personality, i.e., the Trades Union Congress. The alternative is to be driven from employment. Nor is that ail. • Once within a union which enjoys this form of recognition, he must contribute to the political funds of that union, unless he expressly signifies that he does not wish to do so—an operation requiring a high degree of moral courage. He must, in effect, subscribe to a particular political faith. And what if a union should expel a member for failure to pay the political levy? This is conceding to irrespon• sibility the power to deprive a workman of his entire means of livelihood.

The position now assumed by the unions in the closed-shop con- troversy has another, and deeper, significance. It is the most serious threat to freedom of association which has been made in this country since the abandonment of the attempt to secure uniformity of religious belief. So long as that attempt was being maintained, only one form of religious association—the State Church—was legally possible. But although it was backed by the entire machinery of the State, the attempt ultimately collapsed into complete failure, and full free- dom of association was eventually reaffirmed. There is no reason to assume that the present attempt of the Trades Union Congress will be any more successful in the long run, whatever temporary advan- tages it may win ; for the present threat to freedom of association, like its predecessor, is really founded upon a threat to freedom of thought. The Trades Union Congress is in effect saying that, unless a trade union accepts the full gospel according to Transport House, it will be condemned to perpetual non-recognition, with consequent loss of employment to members. If the non-recognised unions have a substantial basis of popular support such an attitude of intolerance can in the long run lead only to civil violence.

Happily, this country has so far been spared the miseries which follow in the train of strife between rival organisations of trade unions, whether that strife is of the type which exists between A.F.L. and C.I.O. or whether it is the more openly political conflict between Communist, Socialist and Catholic unions of the Continental variety. If, however, federations of unions continue to intervene in the political sphere in this country as openly as they have been doing in the recent past, and if claims such as those which lie behind the closed shop are pressed as far as they are being pressed to-day, it is hard to see how such strife can be avoided in the future. The successive steps in the evolution of trade unionism in this country are easy to trace. First, the plea for toleration ; then the plea for equality of status in negotiation ; then the plea for monopoly in negotiation ; and now the bold assertion of domination. Such a claim as the last cannot fail to be met by those who are adversely affected by it, once they become organised.

It is notorious that the present attitude of the T.U.C. and the passivity of some employers are based upon the fear of Communist- dominated unions. These are employing precisely the same tactics against Transport House as the orthodox unions formerly did against employers. The present phase of union conflict is an object-lesson in manoeuvre, and, now that the T.U.C. has become one of the most powerful vested interests in the country, it should not be a matter

for surprise that it has adopted the traditional attitude of vested interests towards those who threaten a monopoly. But the ordinary citizen has no wish to see further inroads upon freedom of association made in the interests of a powerful and stabilising movement which has far exceeded its original objectives. The seeds of the present conflict in trade unionism were sown when trade unions extended their activities from the industrial to the political sphere ; and unless the country is prepared to concede to the T.U.C. a position such as no other organisation—not even the Roman Catholic Church before the Reformation—has enjoyed in this country, and to exercise powers over individual livelihood such as the Courts have never claimed, it should make its attitude towards the ominous threat of the " closed shop " clear beyond the possibility of misinterpretation.