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by Nathan Newman
November 15, 2002
Speaking of the West Coast dockworkers conflict, Teamsters President Jimmy Hoffa Jr. declared that any injunction by the White House "would be viewed as open union-busting by the Teamsters and all of labor." If Bush's best labor buddy is this outraged, it's important to understand why such injunctions are seen as a new low for even this anti-union president.
Let's start with a reality check on the West Coast port shutdown.
The dockworkers were not on strike. The industry association, the Pacific Maritime Association (PMA), locked them out and it was the industry that shut down the ports. In fact, this is the first time in history that a Taft-Hartley injunction has been granted where it was the employer who locked out the employees.
So how come the Bush administration rewarded the PMA with a Taft-Hartley injunction that the PMA itself requested?
Okay, compassionate conservative union busting can get confusing. Folks might wonder why the PMA wanted an injunction against their own lockout and why, if the union was willing to go back to work, this injunction by the Bush administration is seen as consummate union busting.
The answer is that the threat of a strike is what forces companies to negotiate in good faith and come to agreement. As long as management knows that the federal government will jump into a contract fight, they can refuse to bargain for real. Just the threat by Bush to invoke Taft-Hartley months ago led the PMA dock management to dicker around and refuse to seriously negotiate. The management, knowing an injunction would come, locked out the International Longshore and Warehouse Union with hopes of killing the threat of a strike for months. Ironically, the existence of Taft-Hartley has probably extended this conflict longer. Without Bush's threat, there probably would be a contract -- albeit on terms favorable to the ILWU workers.
And the history of Taft-Hartley injunctions is that they usually don't solve the conflicts -- they just prolong them for the 80-day "cooling off" period. There was a strike and injunction in 1971 against the ILWU and the strike picked up right at the end of the Taft-Hartley period.
The goal of a Taft-Hartley injunction is to derail the organizing energy and momentum of the ILWU -- that is always the goal of judicial injunctions and the history posted below shows it. Bush has been collaborating with PMA management in this goal for months and the injunction is the fruition of their gamesmanship.
Undermining Alternative Union Tactics: There are some other issues that make an injunction repugnant. First, each time it is used, it makes it easier to use in other conflicts. Second, an injunction might allow troops to be deployed on the docks to enforce it, which is a nice visual way by the Bush administration to delegitimize unions as visual targets of military action -- especially dangerous in today's propaganda environment. And third, letting courts in means that they might intervene to stop non-strike protests by the union, such as "work safe" actions where the union carefully follows all safety rules and thereby slows down production.
Some might ask how a court could hold the union in contempt for just following the safety rules contained in the contract, even if that might slow work down. The answer is that courts are not idiots and know a slowdown when they see one -- that's the intent of a "work safe" slowdown; the employers know it, the union knows it, and the courts know it. In fact, only if it's pretty obvious that's its a slowdown can it by definition force the company to give in on a contract.
This is not theoretical. The Bush administration has repeatedly intervened to stop airline strikes under the separate law governing airline unions. When the 7th Circuit US Court of Appeals enforced an injunction against the Machinists at United Air Lines last year, the court made it clear that they can identify a "work safe" slowdown. "Given the context in which the 'work safe' messages appeared and the prominent nature of their display, their obvious intent was to urge mechanics to engage in a work slowdown in response to the impasse in negotiations."
In a similar fashion, the 11th Circuit Court of Appeals in a Delta contract dispute last year ordered pilots to take voluntary overtime, since refusal to do overtime during an injunction constituted an illegal job action that could be enjoined.
And the courts don't kid around in enforcing their injunctions. When American Airline pilots engaged in a "sick out" during an injunction a few years ago, the court hit the union with a $45-million fine. In 2000, the 5th Circuit upheld the fine by the district court and the Allied Pilots Assocation has barely been able to struggle to exist under the economic costs of this fine.
So the PMA can now seek to maneuver the union into a contempt proceeding and seek the economic destruction of the ILWU if the courts deem a "work safe" action an illegal slowdown from the "normal" pace of work.
Essentially, an injunction is a weapon to take away the only tool workers have -- the right to control their own labor. Judicial injunctions are the historic enemy of labor and there is nothing worse Bush could do that go to court for one. When the Taft-Hartley Act was passed, court injunctions were supposed to be used only in narrow situations where the "health" or "safety" of people were threatened, not when it was economically inconvenient.
As Justice Douglas wrote in dissent back in 1959 when the Supreme Court first upheld far broader injunctions:
"Like the old labor injunctions that brought discredit to the federal judiciary this is a blanket injunction broad and all-inclusive, bringing within its scope men whose work has nothing whatsoever to do with the defense needs of the Nation."
Douglas could just as easily be speaking of the Bush administration, which has missed no opportunity to use the rhetoric of "national security" to attack unions wherever they can.
Nathan Newman is a union lawyer, longtime community activist, a vice president of the NYC National Lawyers Guild and author of Net Loss [Penn State Press] on Internet policy and economic inequality. Email firstname.lastname@example.org or see www.nathannewman.org.
Posted by Nathan at November 15, 2002 02:56 AM