Copyright (c) 2001 Arizona Board of Regents
Arizona Law Review
43 Ariz. L. Rev. 63
LENGTH: 29102 words
ARTICLE: Death by Lethal Injunction: National Emergency Strikes Under the
Taft-Hartley Act and the Moribund Right to Strike
Michael H. LeRoy*
& John H. Johnson IV**
* Professor, Institute of Labor
& Industrial Relations and College of Law, University of Illinois at
Urbana-Champaign (J.D., University of North Carolina, 1986; M.A., Labor and
Industrial Relations, University of Illinois at Urbana-Champaign, 1983; M.A.,
Political Science, University of Illinois at Urbana-Champaign, 1981; A.B.,
Political Science, University of Illinois at Urbana-Champaign, 1978).
** Assistant Professor, Institute of Labor
& Industrial Relations and Department of Economics, University of Illinois at
Urbana-Champaign (Ph.D. in Economics, Massachusetts Institute of Technology,
1999; B.A., Economics, University of Rochester, 1995).
... One explanation centers on Mackay Radio v. NLRB. There the Supreme Court
stated that employers have a right to hire permanent striker replacements. ...
Part II of this Article examines the origin of the labor injunction. ... The
Origin of the Labor Injunction ... These studies should have devoted more
attention to the history of the labor injunction. ... A. Early Uses of the
Labor Injunction ... Sherry v. Perkins involved the first American labor
injunction. ... Still another court issued an injunction so broad that it
applied to a nonunion barber who hung a sign in his shop to discourage
patronage by striker replacements. ... The law provides that if a labor
dispute in a substantial segment of an industry imperils the national health or
safety, the President may appoint a board of inquiry to investigate. ... In
relating this injunction to the judiciary's blemished history, Douglas found
that this injunction was also wrong because it interfered with free collective
bargaining to the disadvantage of labor. ... An injunction frees both parties
from the threat or reality of a work stoppage and at the same time removes all
economic pressure for a settlement. ... The first sharp drop in strikes that
began the current decline occurred just after President Carter invoked
Taft-Hartley national emergency strike procedures. ...
If the federal court is to be merely an automaton stamping the papers an
Attorney General presents, the judicial function rises to no higher level than
an IBM machine. Those who grew up with equity and know its great history should
never tolerate that mechanical conception.
--Justice William O. Douglas
A. Context of the Public Policy Problem
When the National Labor Relations Act (NLRA) was enacted in 1935,
Congress enabled employees to bargain collectively by providing an unabridged
right to strike.
As part of this change in public policy, Congress sought to reduce the role of
courts in labor disputes. Until then, employers had relied on judges to
[*64] issue injunctions against strikers and their leaders, enforceable by fines and
imprisonment, even when the only strike activities were peaceful work stoppages.
Prior to the NLRA's enactment, federal courts had been so prone to enjoin
strikes that Congress divested their jurisdiction over labor controversies in
1932 by passing the Norris-LaGuardia Act.
That Act, however, was only partially successful in protecting peaceful
strikes, because the individual worker remained powerless to bargain with her
Moreover, without a federal right to strike, state courts--unaffected by
Norris-LaGuardia--continued to enjoin strikes.
Thus, when Congress provided a right to strike in the NLRA, it carefully chose
language to forewarn courts not to interfere in labor disputes.
Sixty-five years later, the right to strike is a shadow of what Congress
intended. One explanation centers on Mackay Radio v. NLRB.
There the Supreme
[*66] Court stated that employers have a right to hire permanent striker
Many scholars see this doctrine as a negation of the right to strike.
President Reagan's firing of nearly 12,000 air traffic controllers in response
to a 1981 strike is also identified as a pivotal event in the decline of
Some observers argue that this strike-response encouraged private employers to
break, rather than settle, strikes.
A more general explanation is that the declining right to strike results from
strategic union avoidance.
According to this view, employers provoke strikes to sever bargaining
relationships with unions.
They defy the NLRA
in order to hinder employees who participate in union activities.
B. How This Article Addresses This Public Policy Problem
This Article provides a new framework for understanding the declining right to
strike. When the Taft-Hartley Act (also called the Labor Management Relations
"LMRA") amended the NLRA in 1947, it restricted employee rights to bargain
The law imposed several strike controls and deterrents.
These included a major policy reform to deal with national emergency
[*68] strikes. It defined these work stoppages as those that
"imperil the national health,"
and authorized the Attorney General to petition a U.S. district court to
enjoin these otherwise lawful walkouts.
In permitting injunctions to last for eighty days, Congress believed a
cooling-off period would promote strike settlements.
We expect the reader to greet our Article with skepticism. Considering that
Taft-Hartley injunction was issued early in 1978, how could our inquiry be anything more than a
historical tour of a mothballed labor policy? Moreover, since the President has
ordered his Attorney General to seek
Taft-Hartley injunctions in only thirty-two labor disputes, how could such a rarely invoked procedure
contribute to the general decline of the right to strike? Briefly, we preview
some of our answers.
1. We begin by recalling that conventional explanations for the decline in the
right to strike hold President Reagan responsible because he ordered the
federal government to hire 12,000 permanent replacements for striking air
traffic controllers. This theory is generally called the PATCO thesis, because
President Reagan's response broke the union named the Professional Air Traffic
Controllers Organization. Yet, in examining the Bureau of Labor Statistics main
survey of large work stoppages, we note the downward trend in strike activity
that is so often attributed to Reagan actually began at the end of the period
Taft-Hartley injunctions were ordered.
Moreover, strike activity dropped almost as sharply during President Carter's
petition for a coal-strike injunction (a decline of 26.4% from 1977 to 1978) as
it did in the year after the PATCO strike (a decline of 33.8% from 1981 to
Thus, we contend that Carter's aggressive
[*69] response to the coal miners' strike of 1977-1978 was no less important than
his successor's much more recognized example of strike-breaking.
2. We view the PATCO thesis as facile and unrealistic.
We seriously question whether employers, in response to strikes, think:
"If the President can do this, we can, too." Instead, we believe that employer responses to strikes are determined by labor
market conditions and bargaining relationships. Our research shows that
Taft-Hartley injunctions seriously harmed several strong unions--most notably, those in the steel,
longshoring, and maritime industries.
In nearly every case, they not only lost their strikes but suffered losses at
the bargaining table. In addition, they incurred a loss of good reputation.
Taft-Hartley orders are designed to motivate the vast power of the U.S.
presidency to rally public opinion against a threat to the nation's health and
welfare--in this case, a labor union on strike for better pay and working
3. We note that no aspect of labor policy over the past two decades has been
more hotly debated than a union-sponsored bill to ban the hiring of permanent
striker replacements, coming close to enactment in 1992
but ultimately being defeated. It is simply a matter of time until political
conditions lead to a renewal of this important policy proposal.
This Article asks: Can proponents for reinvigorating the right to strike be so
sure that Mackay Radio is the only culprit, or even the main culprit, in
[*70] suppressing the exercise of this right? This Article shows that major
strikes--even those that do not qualify as national emergencies--have a
peculiarly strong effect on the public.
We present evidence that leads us to conclude that President Clinton demurred
in using Taft-Hartley powers only because public opinion strongly supported UPS
In light of this most recent experience, we question whether government policy
should exploit public opinion to determine the outcome of a labor dispute,
especially one that has profound implications for other labor-management
negotiations. In sum, we conclude that
Taft-Hartley injunctions put political expedience ahead of the policy aims of the NLRA, and in doing so
contribute to the decline in the right to strike.
C. Organization of This Article
Part II of this Article examines the origin of the labor injunction. Part II.A
traces its roots to English antecedents.
While Parliament liberalized labor law to permit the right to strike, it
prohibited strikers from intimidating their replacements. American common law
transplanted these criminal prohibitions, without always granting an
accompanying right to strike. Part II.B discusses how state and federal courts
used equity jurisdiction to enjoin strikes and enlarged on English precedents
by including a much wider scope of prohibited conduct in their injunctions.
This development was disturbing because union leaders and strikers were often
subjected to criminal sanctions that rendered them unable to exercise their
constitutional rights. Part II.C shows that by the late 1800s, labor
injunctions were regarded as deeply flawed intrusions on civil liberties. For
the first time, Congress attempted to curb their use by limiting federal
jurisdiction in labor
These efforts at limitation, embodied in the Clayton Antitrust Act and
discussed in Part II.C,
were thwarted by a series of Supreme Court decisions that gave preference to
substantive economic rights of employers. Part II.D explores the Court's
resistance to legislation to curb these pernicious orders.
By the early 1930s, the American public and Congress were so inflamed by labor
injunctions that a new federal law resulted.
Part II.E discusses how the Norris-LaGuardia Act removed federal courts from
Overall, this section shows that federal courts generally heeded a
jurisdictional law that limited their intervention in labor disputes.
This section also updates the extent to which federal and state courts enjoin
strike-related conduct, apart from national emergency strikes.
This background is necessary to understand the exceptional nature of
Taft-Hartley's procedures for strike injunctions.
Part III.A reviews the legislative history of this policy.
This history shows what Republicans aimed to accomplish by reviving strike
injunctions, and what Democrats feared would result from this regressive
development. Section III.B examines the nation's experience with TaftHartley
We reach five conclusions: (1) Taft-Hartley courts have not exercised judicial
(2) Taft-Hartley courts have relied on unrealistic or distorted assumptions to
(3) Taft-Hartley courts have interpreted national health to mean national
(4) Taft-Hartley courts have given the impression of antilabor bias by
granting eighty percent of government petitions for injunctions,
and (5) Taft-Hartley court orders with eighty day limits have been impractical
in some disputes.
We also review research conducted by the U.S. Department of Labor and
economists. This research sharply contradicts fact findings by courts
concerning the effects of strikes.
In Tables 2A and 2B, infra, we compare diametrically opposed analyses by, on
the one hand, courts making hasty fact-findings in the full glare of public
opinion, and on the other, economic analyses of the same strikes conducted
years later with a wealth of statistical evidence. This is a critical
comparison, because we show here that the serious flaws in the processes of the
Taft-Hartley Act reflect badly on federal courts.
Part IV asks whether
injunctions adversely affect the right to strike. The section concludes that these
injunctions, although rare, have contributed to the decline in the exercise of
the right to strike. This is because
Taft-Hartley injunctions lowered public support for unions by portraying them as selfish economic
actors who were harmful to the nation.
Having been constantly cast in the role of the devil by employers, only to see
the federal government propagate this image, unions became more timid in
exercising their lawful right to strike. In addition,
Taft-Hartley injunctions altered the balance of bargaining power in critical strikes, usually to the
detriment of unions.
In short, these injunctions promoted the short-term interests of the American
public and their President, but they also helped employers achieve long-term
economic gains at the direct expense of unions and their members.
Part V closes with general conclusions.
We suggest that TaftHartley injunctions be eliminated or strictly limited to
strikes that pose a threat to national defense. Our main justification is that
an anomalous wave of national strikes in 1946 led to these injunctions. Since
unionization in the private sector is about one-third of its peak in the late
1940s and early 1950s, and strike frequency has been in a steep and continuous
decline since the late 1970s, there is no justification for this intrusion on
the right to strike.
II. The Origin of the Labor Injunction
Historical analysis is largely missing from early studies on TaftHartley
yet this history is essential to understanding why the injunction process is
flawed. These studies should have devoted more attention to the history of the
This focus would have strengthened the arguments that the injunction process
is inherently flawed. In particular, more detailed analysis would have shown
that courts were habitually prone to rule against unions in injunction cases
and were rushed into making hasty decisions because of the urgent circumstances
surrounding strikes. To address this deficiency, we carefully explore the
history of labor injunctions that preceded the Taft-Hartley Act. What we
discover is that:
. courts developed and applied injunctive powers without legislative oversight
or input, and therefore tended to abuse their authority;
. when Congress belatedly tried to curb federal jurisdiction in labor
disputes, courts construed these laws as not applying to labor disputes;
. injunction courts were guilty of several excesses, such as criminalizing
lawful conduct, depriving union supporters due process, and stereotyping these
activists as unsavory;
. the problems identified with labor injunctions worsened over time, prompting
experts to conclude that courts were inherently incapable of administering
injunctions in a just manner.
These matters were well known to the 80th Congress, which adopted the national
emergency provisions of the Taft-Hartley Act.
Looking at the history preceding and following thirty-two
Taft-Hartley injunctions, we conclude that the defects associated with these court orders could have
been--and still can be--avoided.
A. Early Uses of the Labor Injunction
When labor injunctions were first used with regularity in the nineteenth
century, there was no federal right to strike. A union was treated as a
"combination" and was allowed by common law only when workers passively promoted their
However, the common law prohibited economic conspiracy.
In the employment context, this meant prohibiting coercive conduct, such as
forcing employers to pay union wages.
Workers were permitted by law to withhold their labor until their employer met
Taken from an 1825 English statute, this meant
[*74] that workers were permitted to
"meet together for the sole Purpose of consulting upon and determining the Rate
of Wages or Prices...or the Hours or the Time for which he or they shall
work...or...entering into any agreement, verbal or written, among themselves
for the Purpose of fixing the Rate of Wages."
However, the law criminalized conduct aimed at inducing other workers to quit
their work by
"Violence to the Person or Property, or by Threats or Intimidation, or by
molesting or in any way obstructing another...."
Typically this prohibition applied to strikers who induced replacements not to
take their work.
Thus, the parliamentary act of 1825 imported elements of criminal conspiracy
to labor disputes. The law balanced an employer's right to solicit striker
replacements with a striker's right to persuade replacements not to work.
Parliament modified this law in 1859.
Strikers were still permitted to persuade others to cease or abstain from work
in order to obtain the rate of wages or the altered hours of labour so fixed,
if they communicated peaceably and in a reasonable manner, and without threat
Parliament's regulation of the right to strike influenced American labor law;
however, this body of law was transplanted by courts rather than Congress or
This meant that the usual check-andbalance of the legislature defining the
scope of judicial power was absent. In this regulatory vacuum, courts fully
extended their jurisdiction.
Injunctions were the ultimate expression of this power.
By a steady accretion of common law decisions, state and federal courts
transplanted the English prohibition against striker molestation or obstruction
of replacement workers.
These decisions also created a right to strike, with certain limitations.
Thus, workers were permitted to inflict economic injury on their employers if
their intent was not malicious but to benefit themselves.
A 1903 Harvard Law Review article summarized the law of conspiracy as
applied to strikes:
It seems that combination for a law object is not of itself an unlawful means.
It may, however, in some cases turn mere persuasion into practical compulsion,
intimation, or molestation. Although the laborer may be permitted to persuade
others not to deal with his employers, he cannot influence them by physical
intimidation, molestation, or coercion, or by threats of these.
When workers crossed this threshold, they often encountered the full force of
B. Co-Development of Equity Jurisprudence in Labor Disputes
A rising tide of strikes in the 1880s and 1890s provided courts more impetus
to adapt common law principles to labor disputes.
Injunctions played a key role in regulating labor relations. By the turn of
the century, a pattern of judicial abuse was apparent in many injunctions.
American courts relied on an 1868 English precedent, Springhead Spinning Co.
to enjoin strike-related conduct such as picketing. The company filed a
complaint to obtain an injunction to prevent the defendants from printing and
publishing certain placards and advertisements for the purpose of intimidating
workmen who might be inclined to enter the service of the plaintiffs.
The court based its novel use of equity on precedents involving injunctions to
abate nuisances that threatened irreparable harm to private property.
Blurring jurisdiction to prosecute crimes and jurisdiction to protect
[*77] property, Vice Chancellor Malins concluded,
"This Court will interfere to prevent any acts amounting to crime, if they do
not stop at crime, but also go to the destruction or deterioration of the value
This ruling set a powerful precedent for merging equity and criminal
jurisdiction in labor disputes.
This usually occurred when the conduct of strikers in a labor dispute became
heated or agitated to the point of boiling over, without actually crossing that
The problem in mixing jurisdiction, however, was that
[*78] civil courts sitting in equity adjudicated disputes having criminal elements.
Consequently, strikers were treated as criminal defendants without the benefit
of the rights they would have in a criminal prosecution.
As strikes proliferated in the U.S. during the 1880s, courts increasingly
cited protection of private property to justify strike injunctions.
Sherry v. Perkins
involved the first American labor injunction.
The court used equity to enjoin the union's conduct.
Many other state courts followed this example.
The widely cited Vegelahn v. Guntner
was among these early injunction cases. There, an employer
[*79] sued to enjoin strikers from picketing at its door and directing social
pressure and threats at replacements.
The Massachusetts Supreme Court sustained an injunction prohibiting this
conduct, finding that
"patrolling or picketing, under the circumstances stated in the report, has
elements of intimidation like those which were found to exist in Sherry v.
Chief Justice Field and Justice Holmes strongly dissented, stating their
concern about judicial excess in labor injunctions. Field doubted that any
reasonable grounds existed to enjoin the strikers' conduct.
Holmes objected to the breadth of the injunction, finding that it prohibited
lawful striker conduct such as
"social intercourse and even organized peaceful persuasion."
He rejected the notion that
"two men, walking up and down a sidewalk, and speaking to those who enter a
certain shop, do necessarily and always thereby convey a threat of force."
In a contemporaneous development, federal courts enjoined lawful strikes.
These actions disgraced federal courts. Stereotyping was evident in some
injunction decisions. The judge in United States v. Elliot
reviled union members when he stated,
"Such law-breakers who engage in such conspiracies are a lot of professional
agitators....Their tongues are their principal stock in trade; and inasmuch as
imprisonment for debt is abolished, and cruel and unusual punishments are
prohibited, an execution would be quite unavailing."
Other injunctions were so vague as to make their enforcement arbitrary. The
order in United States v. Agler
applied to Eugene Debs, at that time a national labor figure, and any other
unnamed person who aids him in the course of a labor dispute.
This exposed labor leaders who affiliated with Debs to guilt by association.
Judge Baker reasoned:
I think the injunction as against unknown defendants is valid and binding when
the injunction order is served upon them, although they are not at the time
parties to the suit. Indeed, I think an injunction that is issued against one
man, enjoining or restraining him, and all that give aid or comfort to him, or
all that aid or abet him, is valid against everybody that aids or gives
countenance to the man to whom it is addressed.
The judge noted, however, that the injunction in this matter was too vague in
defining proscribed acts of giving aid or comfort to labor leaders who were
conducting a strike.
Employers recognized the tendency by federal courts to issue overbroad
injunctions; and as long as they conducted business in more than one state,
they contrived ways to meet citizenship diversity so as to invoke federal
Eventually, the Supreme Court upheld the legality of labor injunctions.
& Coke Co. v. Mitchell
involved the United Mine Workers' effort to unionize West Virginia mines.
These employers required workers to sign a yellow dog contract--that is, a
promise not to join a union, enforced by discharge.
The union secretly signed up workers as members and then planned a massive
strike to induce employers to bargain.
When a Hitchman manager learned of this, he obtained an injunction to prohibit
the union from interfering with the personal service contracts of his workers.
The order also enjoined striking.
In upholding that part of the injunction that prevented the union from
peacefully persuading miners to become members, the Supreme Court equated the
employer's property rights to its interest in remaining nonunion.
Nothing in this reasoning was based on actual or imminent damage to the
employer's property or customer contracts:
Unionizing the miners is but a step in the process of unionizing the mine,
followed by the latter almost as a matter of course. Plaintiff is as much
entitled to prevent the first step as the second, so far as its own employes
are concerned, and to be protected against irreparable injury resulting from
either. Besides, the evidence shows...that defendants contemplated no halfway
measures, but were bent on organizing the mine, the 'consent' of plaintiff to
be procured through such a control of its employes as would render any further
independent operation of the mine out of the question.
This reasoning expanded the injunction beyond its English common law origin.
Neither violence and destruction of property, nor lesser elements such as
obstruction of work or molestation of striker replacements, was necessary. The
simple and harmless act of joining a union was found to injure an employer. The
Court appeared to overrule American common law decisions that found it lawful
for employees to form or join a labor organization.
C. Congress Tries to Curb Labor Injunctions: The Clayton Act
The growing use of labor injunctions in the 1890s was widely condemned at that
time. These critiques provide insights concerning the abuses of labor
injunctions. Courts were reproached for disguising criminal as civil
depriving union leaders of constitutional rights;
violating separation of powers by usurping legislative and executive functions;
[*83] personalizing judgments and orders;
favoring capital over labor;
and resurrecting the tyrannical Star Chamber in American form.
The growing perception that courts were regulating strikes by injunction
prompted Congress to legislate limitations on federal judicial power. While an
1896 Senate bill requiring federal courts to incorporate criminal procedures in
contempt hearings died in the House of Representatives,
elements of this bill would reappear in the Clayton Act in 1914.
Meanwhile, Congress took another tack. Instead of trying to limit judicial
power in labor controversies, it began to grant certain workers rights to
organize and act in concert in the Erdman Act.
Reflecting the anti-union bias of courts in this period, the Supreme Court
blocked this approach when it narrowly construed Congress' power to provide
substantive labor rights through its commerce power.
During the same time, the Supreme Court held that the Sherman Act applied to
"labor combinations"--meaning unions--in the seminal Danbury Hatters case.
This ruling was pivotal because it brought so much strike activity within the
ambit of antitrust law.
By subjecting unions to these substantive economic regulations, the Supreme
Court preserved the labor injunction. This was remarkable because Congress had
repeatedly tried and failed to amend the Sherman Act to exempt unions from
It finally achieved this result in $ S 6 of the Clayton Act.
Section 20 was also important, because it provided
"that no restraining order or injunction shall be granted by any court of the
United States...in any case between an employer and employees...or between
persons employed and persons seeking employment, involving...a dispute
concerning terms or conditions of employment."
In short, Congress intended to insulate workers from federal injunctions when
it limited federal jurisdiction in a labor dispute.
Congress also recognized the right of employers to be protected from certain
economic injuries. Thus, $ S 20 provided for injunctions in labor disputes, but
"necessary to prevent irreparable injury to property, or to a property
right...for which no there is remedy at law."
At the same time, Congress also immunized a broad range of peaceful worker
activities from injunctions.
Congress also protected federal government interests. It exempted federal
courts from the jury trial requirement for
"contempts committed in disobedience of any lawful writ, process, order, rule,
decree, or command entered in any suit or action brought or prosecuted in the
name of, or on behalf, of the United States."
This was an important precursor to TaftHartley injunctions, because it
established legislative precedents for the federal government to intervene in
labor disputes, and judges to act without juries.
But Congress expressed concern that courts would abridge the rights of union
activists in equity proceedings.
As a result, Congress provided for a jury trial for a striker charged with
The court or judge...may issue a rule requiring the said person so charged to
show cause...why he should not be punished therefor, which rule, together with
a copy of the affidavit or information, shall be served upon the person
charged, with sufficient promptness to enable him to prepare for and make
return to the order at the time fixed therein....
In all cases within the purview of this Act such trial may be by the court,
or, upon demand of the accused, by a jury...and such trial shall conform, as
near as may be, to the practice in criminal cases prosecuted by indictment or
American Steel Foundries v. Tri-City Central Trades Council,
a case involving the Clayton Act, laid a good foundation for limiting a
court's use of equity during strikes. An employer operating a large foundry
instituted a layoff and reduced wages for remaining employees, at least two of
whom were union members.
To protect wage standards, a local federation of unions called a strike for
the foundry and posted roving groups of men in neighborhoods around the plant
to deter employees from working.
After some picketers assaulted workers, a district court enjoined a broad
range of union activity.
The Supreme Court overruled that part of the injunction prohibiting area
unions from peacefully persuading foundry employees to go out on strike.
In broad language, the Court noted that the newly enacted Clayton Act
protected unions and strikes.
In especially significant language the Court stated that to
[*88] make their union effective,
"Employees must make their combination extend beyond one shop. It is helpful to
have as many as may be in the same trade in the same community united, because
in the competition between employers they are bound to be affected by the
standards of wages of their trade in the neighborhood."
Thus, the Court validated a union's interest in protecting wages and working
conditions in its relevant labor market, and not merely a single work site.
This view was consistent with $ S 6 of the Clayton Act, which specifically
provided labor an antitrust exemption.
This reasoning might have prevented courts from enjoining primary and
secondary strikes and boycotts on antitrust grounds. But this did not happen,
in part, because American Steel Foundries viewed only a union's neighborhood or
community as the extent of its relevant labor market.
By implication, the Supreme Court would not protect from antitrust law any
strike activity that obstructed trade beyond these areas.
D. Congress Fails to Curb Labor Injunctions: Demise of the Clayton Act
The federal judiciary was reluctant to cede power to Congress in labor
disputes. The Supreme Court in Duplex Printing Press Co. v. Deering
and Bedford Co. v. Stone Cutters Ass'n
negated the Clayton Act's delicate balance of union and employer rights and
judicial power. Ironically, after the Clayton Act became law, more union
members were defendants in contempt actions.
The union in Duplex Printing represented workers at three of the nation's four
manufacturers of large printing presses.
Duplex refused, however, to recognize the union.
It paid wages below union scale and had longer working hours than unionized
To compete against Duplex, two of the other unionized firms informed the
Machinists union that they would have to terminate their labor agreements.
As a result, the union began a campaign to pressure Duplex into negotiating an
The union had a few members who worked at Duplex's Michigan plant, but not
enough to affect production when these workers went out on strike.
The Machinists knew, however, that Duplex was vulnerable in other respects.
This company shipped its large and heavy presses great distances and depended
on contractors and their employees to install the presses on-site.
Duplex also depended on consumers to buy the newspapers printed on its
presses. Consequently, the union organized boycotts of these papers and strikes
by workers who assembled or hauled the presses.
A court enjoined this secondary activity, and the Supreme Court upheld the
Justice Brandeis' dissent showed how the Duplex Printing majority thoroughly
breached the Clayton Act.
The enjoined conduct was neither violent nor threatening, nor did it induce
workers to break existing contracts.
"justification was that of self-interest. They have supported the strike at the
employer's factory by a strike elsewhere against its product."
This dissent drew special attention to the nonsensical extremes of the
majority's interpretation of $ S 20, noting:
Congress did not restrict the provision to employers and workingmen in their
employ.... If the words are to receive a strict technical construction, the
statute will have no application to disputes between employers of labor and
workingmen, since the very acts to which it applies sever the continuity of the
In Bedford Cut Stone, a national union had a labor agreement with Bedford
Company, a large Indiana producer of limestone used throughout the nation in
The company terminated the agreement in 1921, thus closing its shops to union
The national union retaliated by declaring a strike against any builder who
used Bedford stone.
This declaration led to secondary strikes.
In Denver, union workers who enjoyed a good relationship with their employer
went out on strike because the builder used Bedford stone.
Lower courts dismissed Bedford's petitions to enjoin this conduct, but the
Supreme Court reversed, finding that the Clayton Act authorized the injunctive
relief sought by Bedford.
Even though Bedford did not prove the union's secondary strikes caused it any
injury, the majority reasoned that the union's
"intent to restrain interstate commerce...is enough to justify equitable
interposition by injunction if there be a dangerous probability that such
injury will happen; and this clearly appears."
Although the union's activities were entirely
[*91] peaceful and free of threats, intimidation, and coercion, the Court thought it
proper to enjoin the union from
"even persuasion with the object...of causing any person to decline employment."
This reasoning typified the biased economic theories that Congress wanted to
eradicate in the Clayton Act.
Other federal courts resisted the limitations imposed by the Clayton Act.
One enjoined peaceful strike conduct by narrowly construing
"employer" in $ S 20.
Another found an imaginative way to circumvent the requirement of jury trial
Still another court issued an injunction so broad that it applied to a
nonunion barber who hung a sign in his shop to discourage patronage by striker
Other federal courts ruled that
[*92] peaceful strikes were enjoinable as restraints against trade,
and collection of union dues was enjoinable because that money was used to
organize nonunion mines.
In sum, the Clayton Act moderated equity in some labor dispute cases.
However, by 1932 members of Congress concluded that this law
"was denatured, emasculated, and tortured into an instrument for further
oppression of those whom we sought to relieve."
E. Congress Renews Effort to Curb Labor Injunctions: The Norris-LaGuardia Act
Then and Now
A noted scholar, Edwin E. Witte, offered this bleak assessment following
"The Clayton Act made the position of organized labor under the antitrust laws
distinctly worse than before because of a provision allowing private parties to
obtain injunctions under the antitrust laws against persons guilty of conduct
in violation of these laws."
Congress was therefore again compelled to limit injunctive relief available to
employers during a labor dispute.
The Norris-LaGuardia Act of 1932 resulted from judicial usurpation of the
Senator Norris justified his bill by calling attention to 389 labor
injunctions from 1922-1932, many of which enforced yellow dog contracts.
Representative LaGuardia succinctly stated Congress' intent in passing this
law, describing the
"cruelty of the injunction" as a reason to support passage of the NLA.
Although similar to the Clayton Act, the Norris-LaGuardia Act differed in key
respects. It defined labor disputes expansively, thereby immunizing a wide
range of worker conduct from injunctions.
Thus, workers were not only able to strike against their employers, but to
engage in sympathy strikes against neutral
These secondary actions were designed to increase economic pressure on the
employer, who was the main subject of a labor dispute. The act also restrained
judicial power more forcefully by broadly divesting federal jurisdiction in
The Norris-LaGuardia Act achieved Congress's main objective of removing
federal courts from most labor disputes.
For example, the Supreme
[*95] Court held that the Act prohibited a court from enjoining a strike to protest
an employer's dealings with a politically undesirable customer.
In another case, the Court removed federal jurisdiction to enjoin secondary
picketing under the Railway Labor Act.
In another ruling, it narrowed application of the Sherman Act to unions.
Since 1932, the Supreme Court has found instances where NorrisLaGuardia does
not divest jurisdiction to enjoin strikes, but these exceptions have been
narrow. The Court in Boys Market Inc. v. Retail Clerks Union, Local 770
ruled that courts may enjoin strikes that violate a no-strike clause in a
collective bargaining agreement.
Boys Market differed from Duplex Printing and Bedford Stone because it
involved the much narrower matter of a work-stoppage in apparent violation of a
union's contractual promise not to strike.
The employer sought an injunction to compel the union to honor its promise to
submit contract disputes to arbitration.
Recalling that when the LaborManagement Relations Act was enacted in 1947
Congress expressed a strong policy in favor of encouraging unions and employers
to submit their disputes voluntarily to arbitration, the Boys Market Court
created a narrow exception for enjoining strikes during the term of a labor
agreement in order to enforce a promise to arbitrate.
More recently, the Supreme Court limited Boys Market in Buffalo Forge Co. v.
United Steelworkers of America, AFL-CIO.
As a result, federal courts cannot enjoin a union from engaging in a sympathy
strike, even though it agreed by contract not to strike.
The Court also held in United States v. United Mine Workers
that Norris-LaGuardia does not apply to strikes involving federal employees,
but this case presented unique facts.
Although Norris-LaGuardia eliminates most federal labor injunctions, it does
not apply to state courts. Although these courts routinely enjoin
strike-related conduct, their impact is often limited by state laws modeled
after the Norris-LaGuardia Act.
Such orders generally do not present the problem of judicial
[*97] interference in substantive aspects of labor negotiations.
They enjoin conduct that endangers public safety and welfare.
Moreover, Norris-LaGuardia did not completely end injunctions to stop protests
about conditions of employment. In cases reminiscent of Bedford Stone
[*98] and Duplex Printing Press, the Supreme Court used antitrust law to uphold
state injunctions of worker protests.
III. Taft-Hartley Regulation of National Emergency Strikes
Taft-Hartley is as short on definitions as it is long on prescriptions....
--John A. Ackerman
A. Legislative History of the National Emergency Strike Provisions of the
With the nation sliding deeper into the Great Depression, the tide turned
against labor injunctions. The Norris-LaGuardia Act provided a direct
limitation on judicial intervention in labor disputes. Without providing
substantive collective bargaining rights, however, this law did nothing to curb
state regulation of labor disputes. Enactment of the NLRA three years later
filled this regulatory void.
To appreciate what the Taft-Hartley amendments to the NLRA took away in 1947,
it is important to understand the two main premises that the Wagner Act
embodied concerning labor-management negotiations. First, when an employer and
union negotiate terms and conditions of employment, government should not
Second, to make this a reality, there should be equality of bargaining power.
Without reserving economic weapons to the parties, the law presumed that
unions and employers would have no economic incentive to bargain in good faith.
By enacting the national emergency provisions in the Taft-Hartley Act,
Congress curtailed the policy of free collective bargaining. The law provides
that if a labor dispute in a substantial segment of an industry imperils the
national health or safety, the President may appoint a board of inquiry to
The board must
"ascertain the facts with respect to the causes and circumstances of the dispute."
Upon petition of the Attorney General,
federal district courts may enjoin a work stoppage.
During this time, the parties should try to reach a settlement with the aid of
the Federal Mediation and Conciliation Service.
[*101] dispute continues into the sixtieth day of an injunction, the board of inquiry
must report the current position of the parties, their settlement efforts, and
the employer's last offer.
The NLRB must submit this offer to a secret ballot of the employees.
After the Board certifies this vote to the Attorney General, she must petition
the district court to discharge the injunction.
Congress believed that public opinion should be mobilized in this period to
pressure the parties to settle.
If no settlement occurs, the President must report to Congress and may
recommend a legislative resolution.
This law provoked strong criticism by House Democrats. One criticism centered
on the appropriateness of involving the President in a labor dispute. They
believed that the proposed standard for executive intervention was too vague.
Accordingly, their Minority Report asked:
At what stage in the negotiations of a labor dispute does it
"imminently threaten" to curtail commerce? Is it while negotiations are proceeding, perhaps
satisfactorily, but with some issues yet to be settled? Is it immediately or
upon the break-down of negotiations, before a strike has been called? Or is it
after negotiations have broken down completely, and a strike has been called?
They also questioned what
"substantial curtailment" of industry means.
This vague standard virtually assured that the President's intervention would
"add to the heat of controversies"
"tend to aggravate rather than to resolve labor disputes in essential services."
These concerns were partially addressed by a subsequent version of the bill
that limited intervention to disputes that imperiled the nation's health and
[*102] safety. This standard was more narrow and precise than a competing version
that used the term
Federal courts were another subject of controversy. Democrats believed that
judges would be called upon to decide non-justiciable disputes. They worried
that injunctions would violate the constitutional rule that
"generally the legislature may not confer exclusively non-judicial powers on
courts or judges."
In their view, the
"issues in many labor disputes do not raise justiciable questions. They involve
wages, hours, working conditions; not legal rights and duties." They were especially critical of the role that courts would play in
discharging or continuing injunctions.
In a related concern, House Democrats worried that the proposed
dispute-resolution machinery not only involved too many people, but also too
few with expertise.
They believe that judges were poorly qualified to intervene in national
These opponents also believed that injunctions would more likely frustrate
than promote dispute settlement.
Democrats equated TaftHartley's dispute resolution machinery to compulsory
arbitration and condemned it because experience had shown that unions and
employers avoided hard compromises when presented with this alternative.
In addition, a provision for a secret vote by employees on a proposed
"implied that employees are always the adamant party in their refusal to accept
the offer of the employer."
Senate Democrats had different concerns. Their report drew upon the negative
experience of labor injunctions prior to enactment of the Norris-LaGuardia Act.
Although the Senate version defined national emergency more narrowly, it
lacked a clear definition of
"the types of cases that might affect the national health or safety."
It failed to provide the Attorney General clear guidance
"in determining at what stage of the negotiations a strike may be 'threatened.'"
In addition, the standard of imperilment of national health and safety would
"inevitably lead to heated debate as to when action should or should not be
taken and would tend to aggravate rather than settle labor disputes in key
Debate on the floor of the House added one insightful criticism to these
minority reports. Representative Fogarty (D.-R.I.) accounted for the economic
context that would likely frame national emergency strikes. Reflecting the
recent war experience--and emerging Cold War tensions--he noted that consumer
prices were rising sharply. If working people were denied bargaining power as a
result of injunctions, economic injustice would result.
B. The Nation's Experience with Taft-Hartley Act Strike Injunctions
Public policy reforms are difficult to assess without the passage of time.
Short-term analyses rely on anecdotal or qualitative evidence, or brief trend
data. Of course, these results can be misleading. Still, it is interesting to
consider contemporaneous analyses of the
Taft-Hartley injunctions. Having the benefit of lengthy hindsight, we find much empirical evidence to
validate the concerns of critics.
Edwin Witte offered a prescient critique of injunctions long before enactment
He posited that the problem with courts is not that they are biased; instead,
the problem is that
"labor disputes...put the courts in an anomalous position."
Courts are at their best when they deliberate. Labor disputes confound this
process because they
"are mass phenomena in which it is difficult to get at the true facts."
"feelings run high, and witnesses are often biased," courts cannot reach sound conclusions of fact.
One of Witte's criticisms clearly applies to Taft-Hartley orders. Singling out
temporary restraining orders as
"one of the outstanding abuses of injunctions," he explained:
These orders are drafted by the complainants' attorneys and signed by the
judge without taking any testimony. Often they are found after a hearing to
have been unwarranted or too broad in scope, but a modification, coming as it
usually does months after the order was issued, is of little practical benefit
to the defendants.
Witte supported the Norris-LaGuardia Act not because it abolished injunctions
but because it
"aimed to give defendants a fair opportunity to present their side of the case
and required courts to weigh carefully the testimony."
In addition, the results of labor injunctions often disappointed everyone:
A strong case can be made for barring injunctions in labor disputes
altogether. They have proved of doubtful value in preserving law and order. As
frequently as not, they have been disappointing to employers. They have been a
source of extreme bitterness and discontent, and more than any other factor,
have been responsible for the widespread conviction among workingmen that the
courts are the allies of employers.
Soon after courts ordered
Taft-Hartley injunctions, Witte's concern were realized. The law's hasty process raised questions about
The law also inhibited bargaining and prolonged labor disputes.
Experience contradicted the notion that union leaders obstructed settlement by
withholding a vote on an employer's final offer.
Table 1 reproduces and supplements a summary of all national emergency strikes
from a 1978 Department of Labor report.
The Table adds the executive orders and published court decisions for each
national emergency strike. While the Department of Labor report provides
information about strike issues,
[*106] duration of disputes, types of industries, union voting on employer settlement
offers, and the like, an analysis of Taft-Hartley court decisions follows.
National Emergency Strikes Under the Taft-Hartley Act Table 1
[SEE TABLE IN ORIGINAL]
1. Taft-Hartley Courts Have Not Exercised Judicial Powers
Unions made the argument that Taft-Hartley courts have not exercised judicial
powers early in the emergency strike experience, but to no avail. The 1952
Steelworkers (American Locomotive) decision involved a local union that
[*108] represented workers who manufactured a key part of nuclear bombs.
After extensive settlement efforts failed, they went on strike on August 29.
President Truman invoked the emergency provisions of Taft-Hartley by forming a
board of inquiry on December 3.
By December 12, the board concluded that the strike involved an entire
industry and imperiled national safety.
After granting the government's petition for a temporary injunction on the day
it was heard, the district court issued a preliminary injunction on December 18.
The union argued that the injunction provision of Taft-Hartley violated the
Constitution by granting federal courts more than judicial power.
More specifically, when the union contended that the district court was
petitioned to make an administrative rather than judicial decision, the union
appeared to argue that the court was being called upon to make an economic
judgment about the impact of a strike.
In rejecting this argument, the Second Circuit reasoned:
The prohibition of strikes...implies that they are...an invasion of the rights
of the public. Whether it is the duty of the court to grant an injunction
depends upon the findings of fact to be made by the court as the statute
requires. Whether there is an existing or threatened strike...which...under the
statute is an invasion of the rights of the public presents the usual kind of
case or controversy which is justiciable by a court.
Rather than engage in judicial fact-finding, the district court did
"no more than make itself a superior and revising agency" to the board of inquiry.
The district court, in its haste to act, granted an ex parte restraining order.
When the union appeared at the next hearing and moved to dismiss the
complaint, it contended that the district court lacked subject matter
[*109] the union argued that Taft-Hartley vested non-judicial functions in the court.
The judge resolved these important issues in bench rulings, and in writing his
decision two weeks later brushed aside the union's serious arguments.
This injunction proceeding was similar to that in Federal Radio Comm'n v.
an earlier case that raised the issue of justiciability. The Supreme Court
ruled that federal courts have no jurisdiction when the
"function assigned to the courts...was not judicial in the sense of the
Constitution, but was legislative and advisory, because it was that of
instructing and aiding the commission in the exertion of power which was
The fundamental issue here was the appropriate response to a shortage of
military supplies during a war--more a legislative than judicial controversy.
By ignoring this balance, the court acquiesced to an emergency powers law that
bent judicial power out of constitutional shape.
The Third Circuit offered a more detailed justification for the injunction in
the steel strike of 1959.
It conceded that Taft-Hartley orders were similar to
[*110] labor injunctions that the Norris-LaGuardia Act sought to end.
The court shrugged off this problem by blaming Congress for reviving this
In contrast to the Second Circuit, this court spoke openly about
Taft-Hartley's potential problem in re-creating
The court dismissed this concern by reasoning that its jurisdiction was akin
to judicial review of NLRB orders.
This reasoning was unpersuasive because by then federal courts exercised
independent judgment in denying NLRB requests for injunctions.
In contrast, they routinely deferred to Attorney General requests for
2. Taft-Hartley Courts Have Relied on Unrealistic or Distorted Assumptions to
The emergency nature of injunction hearings led courts to act upon assumptions
rather than findings of fact. Evidence in the United States v. International
decision was comprised of a series of affidavits. The union had no opportunity
to crossexamine the affiants or otherwise challenge, question, or test the
information upon which the district court heavily relied. The court's citations
to these affidavits reveal that these documents were short, poorly
substantiated, and conclusory.
In stating its findings of fact, the court annualized all the estimated
damages for the strike without explaining why it assumed that the strike would
last an entire year.
The International Longshoremen's Association's ("ILA") threshold argument focused on
"the speed with which the Board was convened, held a hearing and made its report."
This argument was valid, because the board took only one day to investigate
and report dramatic findings.
The court dismissed this argument even though the board issued its report
hours after it received presentations from the union and employers that
"spelled out in considerable detail the differences between the parties."
These defects in evidence had a predicable effect on the court's conclusions
of law. It concluded that the
"President's finding is, of course, entitled to great weight but, in addition,
the disastrous effect which a continued strike would have on the national
health and safety and in all aspects of its economic and military activities
was demonstrated by the affidavits which were submitted on this question."
The court's statement erroneously suggested that Taft-Hartley procedures
required district courts to use a deferential standard in reviewing the
Attorney General's injunction petition. Moreover, while it is easy to see how
this strike could inconvenience the nation and even harm its economy, the scant
record did not show or explain how the nation's health or safety were
Taft-Hartley injunctions suffered from severe evidentiary problems. In his landmark dissent in the 1959
Steelworkers case, Justice Douglas exposed the district court's ignorance about
the basic facts in this decisive labor dispute:
We do know that only a fraction of the production of the struck industry goes
to defense needs. We do not know, however, what fraction of the industry is
necessary to produce that portion. Without that knowledge the District Court is
incapable of fashioning a decree that will safeguard the national 'safety,' and
still protect the rights of labor.
He counseled future courts that
"we are dealing here with equity practice which has several hundred years of
history behind it. We cannot lightly assume that Congress intended to make the
federal judiciary a rubber stamp for the President."
United States v. Avco Corp.
added to this pattern of evidence abuse to support
Taft-Hartley injunctions. On April 15, 1967, when a labor agreement was set to expire between a military
contractor and two local unions, President Lyndon
[*112] Johnson ordered a board of inquiry into existence.
The Executive Order required the board to report back within a day.
Complying with the order, the board sent back its report, and Johnson
immediately directed his Attorney General to petition for an injunction.
The court issued a temporary restraining order from the bench just two days
later, and a preliminary injunction on April 25th.
The emergency board and court failed to make any meaningful inquiry.
Even allowing for the Supreme Court's view that Congress intended that the
emergency board, rather than the district court, would engage in a more
searching form of fact-finding, the court needed to find facts in order to
issue an injunction.
In this case, however, the board could not possibly have conducted a full and
objective analysis in less than forty-eight hours. The judge compounded this
error by uncritically granting the government's petition.
He might have asked whether the contractor built any inventory of its
essential products in anticipation of a strike. Did the U.S. military have a
sufficient supply of these products to continue operations in Viet Nam?
Assuming the worst--that these supplies were vital to the war and already
scarce--how would interruption of the war in Viet Nam imperil U.S. safety?
Given the military delays occasioned by the monsoon season, how would this
delay be different? If the rationale for enjoining the strike
[*113] was that no substitute supplier could be found for months or even years,
how did this situation differ from the typical exclusive-supplier arrangement
for the military?
The court in the 1964 case, United States v. International Longshoremen's
relied almost exclusively on the emergency board's fact-findings. Its decision
appeared to deprive the unions of due process. The unions objected to the
government's speed in proceeding before the emergency board, claiming:
Denial of an opportunity to confront their adversary in the presentation of
evidence; inadequate time to prepare presentation of the facts;...improper
delegation of its functions to one of its three members, and so depriving the
unions of a 'hearing' before the full Board; and that a 'hearing' was denied
them in violation of their rights under $ S $ S 206-207 of the Act.
In rejecting these arguments, the court stated that neither the emergency
board nor federal courts could provide the unions with these rudiments of an
3. Taft-Hartley Courts Have Interpreted
"National Health" to Mean National Inconvenience in Justifying Injunctions
In advocating injunctions of national emergency strikes, Senator Taft made
clear that a strike must not only affect a substantial part of
"an entire industry," but also it must
"imperil the national health or safety, a condition which, it is anticipated,
will not often occur."
In several strikes, however, the Supreme Court expanded the meaning of
"national health or safety" to mean national inconvenience.
This debate on definitions was at the heart of the steelworkers' strike in
United Steelworkers of America v. United States.
Their work stoppage began on July 15, 1959, and continued until an injunction
was issued on October 20.
On October 9, the President ordered formation of a board of inquiry, and ten
days later the Board issued a report upon which the Attorney General relied in
seeking a strike injunction.
The issue before the Court was whether the strike imperiled the nation's
health or safety.
The government contended that the term
"comprehends the country's general well-being, its economic health."
The Steelworkers countered that the term meant
"the physical health of the citizenry."
Relying on the board of inquiry's findings that the strike affected national
defense, the district court issued its injunction.
In a per curium ruling, the Supreme Court accepted the Government's
interpretation with little explanation.
In his lengthy dissent, Justice Douglas accused the district court of
rubber-stamping the Attorney General's petition.
"An appeal to the equity jurisdiction of the Federal District Court is an appeal
to its sound discretion,"
Equity decrees are not like the packaged goods this machine age produces. They
are uniform only in that they seek to do equity in a given case. We should
hesitate long before we conclude that Congress intended an injunction to issue
[*115] workers when the inactivity of only 5000 or 10,000 of the total imperils the
In addition, Douglas saw classic symptoms of the old labor injunction lurking
in the district court's order. By exceeding its lawful scope, this injunction
unfairly curbed the economic rights of union workers.
Labor injunctions were long used as cudgels--so broad in scope, so
indiscriminate in application as once to be dubbed a scarecrow device for
curbing the economic pressure of the strike [citation omitted]....The same
indiscriminate leveling of those within and those without the law is
present....It is not confined to the precise evil at which the present Act is
aimed. 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
In relating this injunction to the judiciary's blemished history, Douglas
found that this injunction was also wrong because it interfered with free
collective bargaining to the disadvantage of labor.
Aside from the resemblance of this district court and its injunction to an
unsavory past, Douglas also believed that the restraining order misconceived
congressional intent on national safety and health.
"This seems to me to be an assumption that is unwarranted. I think that
Congress, when it used the words 'national health,' was safeguarding the
heating of homes, the delivery of milk, the protection of hospitals, and the
He seemed to prevail in this argument by showing that the Senate preferred a
narrower definition of national emergency.
This dispute over national health and safety reappeared in subsequent strikes.
Following the Steelworkers' broad interpretation of this term, courts had ample
basis to enjoin strikes.
4. By Granting Eighty Percent of Government Petitions for Injunctions,
Taft-Hartley Courts Have Given the Impression of Anti-Labor Bias
Very few courts rejected board of inquiry findings of a national emergency
strike. In United States v. International Longshoremen's Association, Local 418
the federal government petitioned to enjoin the strike of a single local union
that delayed delivery of thirty-five million bushels of corn and soy beans.
The court wrote a scathing critique of the federal government's abuse of its
The exceptionally small scale of this strike, confined to Chicago-area grain
ports, contributed to the court's view.
But there was more to this critical approach. The court implied that the
Supreme Court's Steelworkers decision was premised on a false theory of
national emergency as being a fiscal rather than physical threat.
The court also provided an unusually balanced view of the government's
interest in enjoining emergency strikes with the NLRA's main emphasis on
granting employees a right to use the strike weapon as an aid in bargaining:
Some harm or threat of injury is regrettably a natural indispensable element
of any strike; however, it is the very essence of the only weapon labor can aim
at management. But such injury remains a question of degree. The closing of a
small factory somewhere in the United States, due to the striking of ten
employees may injure the economy, if we stretch the meaning of injury to absurd
proportions, by decreasing the Gross National Product by $ 25,000 and might add
to the balance of trade deficit by that same amount. Yet, no one would venture
that this is an injury of such consequential dimensions as to necessitate
Taft-Hartley Injunctions with Eighty Day Limits Have Been Impractical
On some occasions, the eighty-day limit on injunctions has added more
controversy to labor disputes. For example, in Seafarers International Union of
North America v. United States,
the employer association successfully argued before the district court that an
eighty-day strike injunction would fail to restore the status quo ante because
Pacific voyages take longer.
The threat of a mid-voyage work stoppage would deter shippers from sending
After the court issued its preliminary injunction, seamen were forced to enter
into employment contracts called shipping articles.
This prompted the unions to insist upon a rider that would free employees to
strike after eighty days and require employers to pay them for services
rendered and return passage.
[*118] The district court modified its injunction to prohibit this rider, which
extended the injunction for months.
Although the Ninth Circuit overturned this ruling,
this controversy exposed another flaw in Taft-Hartley strike procedures.
Although oceanic shipping is a unique enterprise, other businesses are likely
to have similar uncertainties relating to project completion times and the
resulting loss of customer confidence in a struck employer.
6. Economic Analyses of National Emergency Strikes Have Contradicted the
Fact-Findings of Taft-Hartley Courts
Taft-Hartley injunctions were used most frequently, the federal government conducted two careful
studies about national emergency strikes.
These were remarkable because the executive branch--once under a Democratic
President and once under a Republican President--questioned the premise of a
law that gave presidents extraordinary power to intervene in a labor dispute.
After examining steel and longshore strikes, each report concluded that the
impact of these walkouts on the nation's economy was seriously exaggerated.
The first study examined steel industry strikes in the 1950s.
Although commissioned by the U.S. Department of Labor, the study was an
independent inquiry led by a Harvard professor of business administration, E.
Its results conflicted with judicial fact-findings in strikes that were halted
by injunctions. After running an empirical model of how the steel industry
would have behaved without these work stoppages, the report concluded that
"the economic impact of strikes on the economy are usually seriously exaggerated."
In addition, the report questioned the policy assumption that injunctions help
unions and employers settle their differences:
"It is very difficult to be optimistic with respect to the fruitfulness of any
form of early intervention to facilitate the settlement of disputes."
To the contrary, the report noted that the
"imposition of neutrals, as distinct from a situation in which parties
voluntarily seek the assistance of neutrals, would appear more likely to
intensify conflict than to aid in the resolution of the issues."
The report also criticized two aspects of government intervention in
private-sector strikes. First, the prospect of government involvement tended to
obstruct give-and-take in labor negotiations and prolonged disputes.
A Taft-Hartley solution was part of the problem.
The other criticism was more oblique, implying that courts did not adequately
consider union arguments to tailor injunctions to meet defense needs in
"An injunction seems to be a sufficiently flexible device to be used at a single
plant or group of plants within one industry."
The report contradicted certain Taft-Hartley courts when it noted that in
"an analysis conducted by the Department of Commerce, the conclusion was reached
that it is technically and economically feasible to meet defense needs through
Taking a broader view of emergency strikes, the report came to its ultimate
While the conclusions of this study indicate that the consequences of steel
strikes to the public need not cause alarm and are typically exaggerated, the
crisis atmosphere which is created can outweigh a logical appraisal. A
succession of long steel strikes can easily lead to a political situation which
demands drastic legislation. The consequences of such legislation are very
difficult to appraise, but they are not appealing because they substitute the
uncertain consequences of public power for private responsibility.
Contrasting Assessments of National Emergency Risks Posed by Steel Strikes
[SEE TABLE IN ORIGINAL]
The economic impact of strikes on the economy are usually seriously
TP If the strikes were to continue, the total number of workers made idle by
it would probably reach approximately 1,775,000 by the end of November and
approximately 3,000,000 by the end of December. By that time more than
9,000,000 people would probably be affected by the strike.
A steel strike shuts down almost the entire industry. However, it clearly is
not correct to measure the loss of steel production by examining only the
strike period itself. There may be anticipatory production prior to the strike
and will be catch-up production after the strike.
A continuation of the strike will have the ultimate effect of adversely
affecting millions of small business enterprises, almost all of which are
directly or indirectly dependent upon the steel products and most of which lack
the resources oto stock large inventories.
The theory of enforcing delay of a work stoppage is that during the waiting
period the parties will cool off and reassess their positions. Experience
demonstrates that this assumption is in most cases fallacious. Employees whose
demands are subject to enforced delay are as likely to become warmer as coller
over the controversy.
[Congress's] basic purpose seems to have been that vital production should be
resumed or continued for a time while further efforts were made to settle the
Contrasting Assessments of National Emergency Risks Posed by Longshore Strikes
[SEE TABLE IN ORIGINAL]
The resultant injury to the nation would touch its national defense, its
foreign economic and military aid, the health of its citizens, the jobs of well
over a million citizens; its entire transportation system, including trucks and
railroads; dealing a serious blow to its domestic and foreign economy and
causing inestimable pecuniary loss to all affected.
In general, U.S. foreign trade patterns during and after these three periods
failed to reveal any long-term effects which could be directly attributed to
the strikes. The strikes had no visible impact on the economy as a
whole--industrial production, retail sales, national income, or total
The City of New York...depends on water transportation for a large portion of
its food supply and other essentials. Any prolonged interruption in the
delivery of the food and other supplies would be hazardous to the health and
safety of the people living there.
With few exceptions, such as sugar cane and parts for some foreign vehicles,
the strikes did not appear to generate shortages of materials or components in
A serious fuel shortage with the approach of winter would be injurious to the
health of the people in that area and cause much hardship. Instance after
instance of disruption of our internal economy and inter-ference with essential
services are established as certain to flow from a renewal of the strike; there
is no need to multiply examples here.
Some commodities such as petroleum imports and coal exports are not affected
by a longshore strike.
The second Department of Labor ("DOL") study, conducted in 1970, concluded again that the effects of national
emergency strikes were seriously exaggerated.
Tables 2A and 2B summarize the remarkable contrast between district court
decisions and DOL impact studies. Courts assumed worstcase strike scenarios for
fuel shortages, forced layoffs, and reduced economic output. In contrast, DOL
reports noted that strikes are almost always foreseeable, which prompts
stockpiling of inventory. This preparation reduces the impact of large strikes.
These DOL reports were consistent with earlier academic studies that showed
large strikes have minimal impact on the nation.
A 1981 study by Professors George R. Neumann and Melvin W. Reder that examined
strikes from 1958-1977--a period that overlapped with many
Taft-Hartley injunctions--replicated this finding.
The methodology of the 1981 study explains why courts were so misguided in
overestimating the effects of national strikes. The study noted that there is a
mistaken tendency to focus only on immediate strike losses, such as lost output
and worker earnings:
"Implicit in these discussions is the view that what is lost today is lost
forever; that is, output not produced and wages not earned during a strike will
never be regained."
In unusual cases--for example, a strike at a firm with monopoly power, or
involving a product that cannot be stored--this assumption may be true. In
"The ability of struck firms to substitute production over time through
inventory accumulation and decline implies that to some extent the immediate
costs of a strike are offset."
[*123] their view, these results clearly implied that strike controls such as
Taft-Hartley injunctions were unnecessary.
In sum, the federal government assessed the impact of national emergency
strikes from two vantage points. One type of assessment occurred at the peak of
these strikes, which was conducted by a board of inquiry that was hastily
convened by a President who was under intense political pressure, and almost
always resulted in issuance of a
Taft-Hartley injunction by a federal judge who uncritically accepted these assessments. The second
type of assessment was commissioned years later by a more disinterested branch
of the federal government, when there was no pressure to find facts one way or
another, and resulted each time in a professional opinion by leading economists
that the effects of national emergency strikes were short-term and much more
limited than previously thought. Clearly, economists had better information and
training to make an informed assessment; but federal judges exercised great
power, notwithstanding the limits of their professional training limitations
politicized context, in halting most of these otherwise lawful strikes.
Injunctions Adversely Affect the Right to Strike?
In most instances the force of public opinion should make itself sufficiently
felt in the 80-day period to bring about a peaceful termination of the
--S. Rep. No. 105, 80th Cong., 1st Sess., at 15
The main explanation for the declining exercise of the right to strike
concentrates on the Supreme Court's Mackay Radio decision that created the
striker replacement doctrine.
This Article does not challenge this theory, but contends it is incomplete
because it fails to consider the possible effect of
Taft-Hartley injunctions. This Article offers two plausible accounts for the dampening effect of
Taft-Hartley orders on the exercise of the right to strike.
Taft-Hartley Injunctions Generally Eroded Public Support for Strikes
Taft-Hartley injunctions lowered public support for unions by portraying them as selfish economic
actors who harmed the nation. Republicans in the 80th Congress intended this
Public disapproval over a series of national strikes by unions played a major
role in the 1946 elections that enabled Republicans to take control of the
House and Senate.
They capitalized on the role that public
[*124] opinion can play in defeating strikes. Although they intended injunctions to
protect the nation from damaging shortages, and to give negotiators more time
to reach a settlement, Republicans also wanted to mobilize intense public
pressure against striking unions.
The 1961 DOL report addressed the importance of public opinion in pivotal
Before negotiations began in 1959, the union and steel industry launched
nationwide publicity campaigns.
Union newspaper ads emphasized the benefit to the public of improved
wageearnings for steelworkers, as well as corporate greed.
The company countered that the union's demands were inflationary and would
harm the national economy.
The DOL report concluded that
"steel negotiations, wholly apart from their effect on the industry or the
national economy, have become contentious public issues...that have become a
sort of bargaining superstructure which, depending on circumstances, can be an
encumbrance or an aid."
In trying to win over the public, both sides tried to cast
"each other constantly in the role of the devil," making it
"increasingly difficult for them to be conciliatory in public or to communicate
effectively in private."
The DOL's analysis is consistent with later research on the connection between
public opinion and strike outcomes. A 1992 study showed that national news
"the influence of family, neighbor, teacher, preacher, and co-worker" in the formation of public opinion about unions and activities such as strikes.
Furthermore, it found that reporting concentrated on
"bad news," which coincided with
"organized labor success in developing bargaining power."
Soon after, another analysis found that public disapproval of labor unions
increased because of strike-related coverage.
A 1994 study found a positive and significant relationship between strike
activity and public disapproval of unions.
A 1996 study of newspaper reporting of strikes and contract settlements
"unless unions believe that all publicity is good, no
[*125] matter the cause or slant, they must view as unfortunate the consistency with
which strikes garner media attention and the rarity with which peaceful,
cooperative settlements do."
Taft-Hartley Injunctions Benefitted Employers and Harmed Unions in Key Pattern-Setting Labor
Taft-Hartley injunctions altered the balance of bargaining power in critical strikes, usually to the
detriment of unions.
National emergency disputes, even though small in number, had more than
isolated effects. These resulted from a confluence of adverse trends that
caused employers to be more confrontational.
Following the recession of 1953-1954,
"The motivations of employers were straight-forward enough: hard-pressed by
domestic and foreign competition and favored by economic circumstance and the
climate of opinion alike, they simply found the time propitious for an all-out
assault on labor costs."
Thus, it was not surprising that the
"parties to bargaining had difficulty composing their differences and that
disputes in a number of industries--steel, meatpacking, longshoring, and
transportation--were especially bitter and prolonged. The stakes were large and
compulsions were based on considerations of survival."
Antagonisms between employers and unions intensified due to a prevalent form
of pattern bargaining. Bargaining goals of union and industry negotiators were
determined by labor agreements outside but still proximate to their
These agreements created an
"orbit of direct wage comparisons" that included common ownership of firms that bargained collectively with
unions and government intervention in helping to determine wages.
The fact that unions had organized a dominant share of industrial labor
markets limited employer options for substituting nonunion labor.
Since production of basic goods such as steel, autos, and rubber was densely
concentrated among just a few firms,
and because unions represented more than 80 percent of the employees in these
strong patterning of negotiated wages and benefits was inevitable. Thus, a
labor dispute in one industry directly affected employers and unions in a
related sector of the economy.
While pattern bargaining tended to favor industrial unions in the 1950s, this
trend soon began to decompose. Clearly, this was a reversal for these unions.
Although it is impossible to pinpoint a precise time or event, evidence
Taft-Hartley injunctions played an important role in the long-term decline of industrial unions.
The footprint of
Taft-Hartley injunctions is suggested in industry strike data. Table 3 shows that strike activity
sharply and irreversibly declined in the industries most often subjected to
Taft-Hartley injunctions: basic steel,
To be clear, this Article presents only suggestive evidence of this
relationship. Moreover, studies show that factors unrelated to
Taft-Hartley injunctions contributed to the decline of these industries and their unions.
V. Conclusions: What Do
Taft-Hartley Injunctions Accomplish?
Negotiations during the greater part of most injunction periods are usually
fruitless in any event. An injunction frees both parties from the threat or
reality of a work stoppage and at the same time removes all economic pressure
for a settlement. The usual experience is that negotiating sessions during an
injunction period are little more than a reiteration of disagreement until such
time as the parties are once again faced with the threat of a stoppage. Then
they develop a renewed enthusiasm for bargaining and search for agreement.
--U.S. Department of Labor
Our research literature opens a dormant inquiry into the harmful effects of
But since there has not been a national emergency strike since 1978, why are
Taft-Hartley injunctions relevant?
We begin by noting that the main point of these injunctions is to mobilize
public opinion against the private participants in these significant work
stoppages. The law does not require proof that a national emergency exists, but
only that a strike
"will, if permitted to occur or to continue, imperil the national health or
This opens a floodgate of speculative proof. Even more suspect, the proponent
of this tenuous evidence, the president, is a politician who may be seeking to
burnish his image.
Even though there has been no
Taft-Hartley injunction since the 1970s, it is plainly wrong to conclude that presidents are removed
from major labor disputes.
They have intervened in labor disputes affecting airlines
under the Railway Labor Act,
and those that are subject to the TaftHartley
Although disputes that potentially arise under the national emergency
provisions of the TaftHartley Act are rare, they are also extremely important.
They matter greatly to the striking union,
and more generally to the labor movement.
We conclude that presidential involvement in the substantive aspects of
private negotiations harms unions in two respects. When political figures and
business leaders seek presidential intervention to forestall a strike, the mere
prospect of an injunction is likely to have a chilling effect on a union's use
of this right. This is because Taft-Hartley contextualizes strikes as a harm to
the public. Unions pay a double penalty. They lose use of their primary
economic weapon--to the detriment of their bargaining power--and their public
image is tarnished.
The second harm results from the apparent fact that injunctions delay
settlements. Strikes in progress are therefore prolonged. Table 1 shows that of
the 27 enjoined strikes, four were not halted, and seven continued after the
injunction was discharged.
In nine strikes, settlements were reached after the cooling-off period expired.
This evidence is important because it relates to the empirical finding that
"firms 'win' more long strikes than unions."
Failure to achieve settlements in roughly thirty percent of enjoined strikes
appears to have raised union strike costs.
If our two main inferences are correct, then
Taft-Hartley injunctions add bias to a labor law that is ostensibly meant to be neutral in its
orientation toward unions and employers. We grant that such bias was justified
in 1947, after a great wave of strikes crippled the nation. But consider how
much has changed since that aberrant year:
. Union density in the private-sector, which peaked in the early years of the
Taft-Hartley injunction experience at thirty-seven percent,
has fallen sharply to about fourteen percent.
This decline in union representation clearly implies that the need for
TaftHartley injunctions no longer exists, or is greatly diminished.
. Pattern bargaining and its closely related analog, industry bargaining, are
Thus, a strike at a major firm such as General Motors or Ford or Caterpillar
no longer threatens to engulf all other producers of goods or services. This
represents a vast change in the mode of bargaining from the 1950s. The law
remains premised, nevertheless, on this outdated structure of bargaining.
In the 1950s and 1960s, hundreds of strikes occurred each year in bargaining
units of 1000 or more employees.
While we show in this Article that the immediate threats of national emergency
strikes were greatly overstated, it remains true that these strikes had
inflationary implications. Today, in contrast, strike activity has dipped to
unprecedented low levels.
This is astounding considering that unemployment is extremely low--a
phenomenon that usually increases union bargaining power. What has changed
since 1947? The globalization of business,
combined with technological displacement of labor,
act as powerful brakes on union bargaining power. Assuming that these trends
continue, there is no justification for a law that enjoins lawful strikes.
While employers have had a right to hire permanent striker replacements since
1938, empirical evidence shows that large employers did not regularly
[*132] exercise this right until the 1980s and 1990s.
As our research here shows, the type of employer involved in a Taft-Hartley
strike--an industry leader--fits this description.
These large employers once relied on a traditional model of permanent
employment for its workforce; but today, this is displaced by more contingent
To an employee and her union, these related changes--the prospect of being
permanently replaced in a strike, and the constant erosion of permanent
employment, even in good times--are powerful strike deterrents that did not
exist in 1947.
For these reasons, we propose two small, but significant, policy alternatives.
Since no president has petitioned for a
Taft-Hartley injunction since 1978, one could reasonably conclude that this law has become irrelevant,
and therefore should be repealed.
A more limited alternative is to narrow the standard for
Taft-Hartley injunctions. As we have shown, Congress had a precise and narrow meaning in mind when it
adopted the current standard of imperilment to the nation's health and safety.
As a result of the Supreme Court's 1959 Steelworkers decision, this standard
was interpreted with too much elasticity.
Our research marshals evidence that shows how careless and shortsighted courts
are when they use the flawed evidentiary process for
Taft-Hartley injunctions. If the adage
"haste makes waste" has any validity, it is true for federal courts operating under this law. Why,
then, should the federal judiciary's
[*133] honorable reputation be blemished by a law that sacrifices its habit of
careful deliberation? We believe a better standard is one that substitutes
impairment of national defense for imperilment of national health and safety.
Our research on
Taft-Hartley injunctions is significant in a broader sense. As we noted earlier, the sharp decline in
strike activity over the past twenty years has provoked considerable
commentary, much of it critical. This is not because the labor law and
industrial relations academies glorify or relish strikes. A leading treatise
How, then, does collective bargaining work? Why do management and unions ever
get together?.... In the final analysis collective bargaining works as a method
of fixing terms and conditions of employment only because there comes a time
when both sides conclude that the risks of economic losses through a strike are
so great that compromise is cheaper than economic battle.
The right to strike is therefore an essential voice-mechanism in America's
economic democracy and pluralistic society. Without this expressive right,
worker demands for improvements such as the eight-hour workday might not have
President Reagan's firing of air traffic controllers is often cited as a
primary cause in declining strike activity.
This explanation is too facile because
[*134] employer conduct is not likely to be so easily influenced by a single actor or
event. In contrast, our research should prompt commentators and policy-makers
to consider the possibility that the presidency plays a more complex role in
The first sharp drop in strikes that began the current decline occurred just
after President Carter invoked Taft-Hartley national emergency strike
Our research adds to this observation by presenting evidence that
Taft-Hartley injunctions were most often used against industrial unions who had lost an immense number
of jobs and members, and ultimately, bargaining power.
The current paradigm casting Reagan as a villain in this context misses the
point that courts are, and always have been, ill-suited to enjoin strikes.
This problem has been compounded by exposing courts to the glare of public
opinion. Yet that is precisely the objective of the Taft-Hartley Act. When a
president knocks at a judge's chamber doors, with the full fury of public
opinion at her disposal,
how can this not prove lethal to an otherwise lawful strike?
Justice Holmes noted in a brilliant dissent nearly a century ago,
"Great cases, like hard cases, make bad law."
"Great cases are called great, not by reason of their real importance in shaping
the law of the future, but because of some accident of immediate overwhelming
interest which appeals to the feelings and distorts the judgment."
So, too, with
"great strikes." Without additional safeguards built into the law, the right to strike is
subject to Holmes' famous dictum that
"immediate interests" will
"exercise a kind of hydraulic pressure which makes what previously was clear
seem doubtful, and before which even well settled principles of law will bend."
United Steelworkers of America v. United States, 361 U.S. 39, 71 (1959) (Douglas, J., dissenting).
n2 National Labor Relations Act of 1935, Ch. 372, 49 Stat. 449 (codified as
29 U.S.C. § § 151-169 (1994)).
29 U.S.C. § 163 (1994).
n4 See Charles Noble Gregory, Government by Injunction,
11 Harv. L. Rev. 487, 492 (1898), explaining equity in labor disputes:
The injunctions issued by the federal courts...have been of especial
importance in the controversies arising out of strikes and labor difficulties.
The courts rest jurisdiction...under three heads: First, on their right to
protect receivers appointed by them in the possession and management of the
property intrusted to them. Secondly, on their general right to protect
suitors...from irreparable injury to property and multiplicity of suits.
Thirdly, under federal statutes protecting some function confided to national
control, as the United States mail or interstate commerce, and often providing
especially for injunction as a means of enforcing the law.
n5 Norris-LaGuardia Act of 1932, ch. 90, 47 Stat. 70 (codified as amended at
29 U.S.C. § § 101-115 (1994)). Rep. Fiorello LaGuardia, the bill's author, justified this
unusual restriction on federal jurisdiction by pointing to the failure of
courts to adjudicate labor disputes even-handedly:
"Gentlemen, there is one reason why this legislation is before Congress, and
that one reason is disobedience of the law on the part of whom? On the part of
organized labor? No. Disobedience of the law on the part of a few Federal
judges." 75 Cong. Rec. 5478 (1932). Castigating the judiciary for ignoring limits
imposed by the Clayton Antitrust Act on federal jurisdiction, he continued:
If the courts had been satisfied to construe the law as enacted by Congress,
there would not be any need of legislation of this kind. If the courts had
administered even justice to both employers and employees, there would be no
need of considering a bill of this kind now.
n6 See 78 Cong. Rec. 3679 (1934), reprinted in 1 NLRB, Legislative History of the
National Labor Relations Act of 1935, at 20 (1985) [hereinafter Legislative
History]. Senator Robert Wagner justified federal protection of collective
bargaining when he introduced the bill that eventually became the NLRA:
We are forced to recognize the futility of pretending that there is equality
of freedom when a single workman, with only his job between his family and
ruin, sits down to draw a contract of employment with a...tremendous
organization having thousands of workers....The right to bargain collectively
is a veritable charter of freedom of contract; without it there would be
slavery by contract.
n7 Numerous states had anti-injunction laws, but even then their courts found
novel theories to nullify these laws. In
Levy & Devaney, Inc. v. International Pocketbook Workers' Union, 158 A. 795, 796 (1932), twenty-five strikers picketed the entrance to their workplace, giving
"black and threatening looks." Id. Although neither the union nor its striking members engaged in violence,
the Supreme Court of Connecticut upheld an injunction. See id. The court's idea
of unlawful picketing was so vague that it seemed to outlaw all non-violent
"picket" indicates a militant purpose inconsistent with peaceful persuasion...that has
for its purpose the backing up of persuasion with a show of physical force, and
almost inevitably tends to intimidation and violence, so that the phrase
"peaceable picketing" is a contradiction in terms. Here, as we have seen, the acts and conduct of
the defendants were actually intimidating and coercive, and such as would be
held unlawful in any jurisdiction.
Id. Thus, the court proceeded to enjoin conduct simply because of its
potential for misconduct:
An injunction is granted with reference to what there is reason to expect in
its absence. When picketing is so unlawful as to indicate that the defendant
does not intend to use his rights in a lawful manner, a court may reasonably
expect that such unlawful conduct will continue...and in such case it is within
the discretion of the trial court to enjoin further picketing altogether.
n8 The right to strike is stated in brief and highly general terms, and the only
apparent limitation that Congress provided was not on the right, but on courts
that interpret its legal scope:
"Nothing in this Act, except as specifically provided for herein, shall be
construed so as either to interfere with or impede or diminish in any way the
right to strike, or to affect the limitations or qualifications on that right."
29 U.S.C. § 163 (1994). When it used the term
"construe," Congress clearly expressed its concern that courts are too hostile to strikes.
304 U.S. 333 (1938). For explanations, see, e.g., Craig Becker,
"Better Than a Strike": Protecting New Forms of Collective Work Stoppages Under the National Labor
61 U. Chi. L. Rev. 351 (1994); Leonard Bierman
& Rafael Gely,
"Let's Call It a Draw": Striker Replacements and the Mackay Doctrine,
58 Ohio St. L.J. 1003 (1997); Samuel Estreicher, Collective Bargaining or
"Collective Begging"?: Reflections on Antistrikebreaker Legislation,
93 Mich. L. Rev. 577, 599 (1994); Matthew W. Finkin, Labor Policy and the Enervation of the Economic Strike,
1990 U. Ill. L. Rev. 547 (1990); Julius G. Getman
& F. Ray Marshall, Industrial Relations in Transition: The Paper Industry
102 Yale L.J. 1803, 1877 (1993); Michael H. LeRoy, Employer Treatment of Permanently Replaced Strikers,
1935-1991: Public Policy Implications,
13 Yale L. & Pol'y Rev. 1 (1995); Daniel Pollitt, Mackay Radio: Turn It Off, Tune It Out,
25 U.S.F. L. Rev. 295, 299 (1991); George Schatzki, Some Observations and Suggestions Concerning a Misnomer--"Protected" Concerted Activities,
47 Tex. L. Rev. 378 (1969); William D. Turner, Restoring Balance to Collective Bargaining: Prohibiting
Discrimination Against Economic Strikers,
96 W. Va. L. Rev. 685 (1994); Note, One Strike and You're Out? Creating an Efficient Permanent Replacement
106 Harv. L. Rev. 669, 674 (1993); Charles Thomas Kimmett, Note, Permanent Replacements, Presidential Power, and
Politics: Judicial Overreaching in Chamber of Commerce v. Reich,
106 Yale L.J. 811, 824-25 (1996).
MacKay, 304 U.S. at 345-46 (1938). In dictum, the Court stated the permanent striker replacement doctrine:
Nor was it an unfair labor practice to replace the striking employees with
others in an effort to carry on the business. Although section 13 of the
act...provides, 'Nothing in this Act...shall be construed so as to interfere
with or impede or diminish in any way the right to strike,' it does not follow
that an employer, guilty of no act denounced by the statute, has lost the right
to protect and continue his business by supplying places left vacant by
strikers. And he is not bound to discharge those hired to fill the places of
strikers, upon the election of the latter to resume their employment, in order
to create places for them.
Id. at 345-46.
n11 See, e.g., Charles B. Craver, The National Labor Relations Act Must Be Revised
to Preserve Industrial Democracy,
34 Ariz. L. Rev. 397, 421 (1992) ("It is clear that the Mackay Radio decision severely undermined the statutorily
protected right of employees to strike."); Estreicher, supra note 9, at 601 ("Whatever the causes of the decline in union density, under present conditions
Mackay Radio threatens to unravel the statutory scheme."); Getman
& Marshall, supra note 9, at 1877 ("The strike at Jay demonstrates that Mackay has helped to create a labor law
system that permits the economic devastation of our best people."); Pollitt, supra note 9, at 306 ("The Mackay Radio doctrine is an increasingly effective tool with which
employers can undermine employees' efforts to organize themselves and to
meaningfully bargain with their employer."); Kimmett, supra note 9, at 674 ("Employers currently abuse the right of hiring permanent replacements in order
to rid themselves of unions, thus destroying the benefits that unions provide.").
n12 See Preventing Replacement of Economic Strikers: Hearing on S. 2112 Before the
Subcomm. on Labor of the Comm. on Labor and Human Resources, 101st Cong., 2d
Sess. 39 (1990). Senator Howard Metzenbaum (D.-Oh.) and Thomas Donahue,
Secretary-Treasurer of the AFL-CIO, had this exchange:
"How do you account for the fact that the Mackay decision, made about 50 years
ago, that for about 40 years there were no problems, and employers went along
and did not bring in permanent replacements. Then, starting about 10 years ago,
we found this new movement to bring in permanent replacements...."
"I think there has been a sea change, Senator, in the whole climate of
industrial relations in this country. I think the employers have been
emboldened by President Reagan's action in the PATCO strike--there simply is no
question in my mind about that."
n13 See, e.g., Bob Baker, Ex-Air Traffic Controllers Recall Strike with Regret,
L.A. Times, July 27, 1991, at A1 (reporting that President Reagan's firing of
11,000 striking federal air traffic controllers still ripples through American
society). Labor analysts regard Reagan's tough stand against PATCO, the union
involved in this strike, as a catalyst for
"American management's increasingly aggressive tactics against unions." Id.
n14 Strategic union avoidance refers to a set of employment practices that are
implemented to thwart or limit union representation of workers. For studies on
union avoidance, see, e.g., Charles B. Craver, Can Unions Survive? 47-51
(1994); Bennett Harrison
& Barry Bluestone, The Great U-Turn: Corporate Restructuring and the Polarizing
of America 48, 48-50 (1988); Richard B. Freeman, Why Are Unions Faring Poorly
in NLRB Representation Elections?, in Challenges and Choices Facing American
Labor 45, 54-61 (Thomas Kochan ed., 1985); William N. Cooke, The Failure to
Negotiate First Contracts: Determinants and Policy Implications,
38 Indus. & Lab. Rel. Rev. 163 (1985); John J. Lawler, The Influence of Management Consultants on the Outcome of
Union Certification Elections,
38 Indus. & Lab. Rel. Rev. 38 (1984).
n15 See John J. Lawler, Unionization and Deunionization: Strategies, Tactics and
Outcomes 182 (1990):
In what seems to be an increasingly common scenario, an employer either forces
or takes advantage of a strike to secure deunionization.... In a protracted
strike in which the employer holds fast to its position, discord is apt to
build among striking the employees, leading some to return to work; the
employer may also hire permanent replacements for the strikers. This then sets
the stage for a decertification effort...an RM petition, or withdrawal of
Id. An RM petition is a means by which an employer who receives a demand for
recognition by two unions can petition the Board for an election to determine
which union represents the majority of his employees. See also Michael H.
LeRoy, Severance of Bargaining Relationships During Permanent Replacement
Strikes and Union Decertifications: An Empirical Analysis and Proposal to Amend
Section 9(c)(3) of the NLRA,
29 U.C. Davis L. Rev. 1019 (1996).
n16 See Robert J. Flanagan, Compliance and Enforcement Decisions Under the
National Labor Relations Act, 7 J. Lab. Econ. 257, 278 (1989) (observing that
benefits outweigh costs in disobeying the NLRA).
n17 See Robert W. Gordon, Corporate Law Practice As a Public Calling,
49 Md. L. Rev. 255, 261 (1990) (explaining that today's confrontational labor relations began in the 1960s:
"Even in traditionally organized sectors, employers no longer accept the unions
as a necessary evil, but treat them as obstructions to be moved away from,
subcontracted around, or broken through aggressive resistance or
29 U.S.C. § 158 (1994).
n19 Id. See also, e.g., new
§ 8(d) of the amended NLRA prohibits a union from striking to enforce demands
during the 60-day 'cooling-off' period.
29 U.S.C. § 158(d) (1994). The Taft-Hartley Act also amended the NLRA so as to provide for the
total disenfranchisement of replaced strikers in an election to decertify a
union as a bargaining representative. See S. Minority Rep. No. 105, 80th Cong.,
§ 2, at 10 (1947), reprinted in 1 NLRB, Legislative History of the
Labor-Management Relations Act of 1947, at 463, 472 (1948) [hereinafter LMRA
29 U.S.C. § 163 (1994).
29 U.S.C. § 176(a) (1994).
29 U.S.C. § 180 (1994).
n23 See Bureau of Labor Statistics, U.S. Dep't of Labor, Work Stoppage Data:
Number of Work Stoppages Idling 1,000 Workers (visited May 29, 2000)
<http://stats.bls.gov/new.release/wkstp.t01.htm. The 1970s was the last decade
in which a
Taft-Hartley injunction was issued. The data here show that strike activity began a long and sustained
drop in the late 1970s. Focusing on statistics for the 1970s and 1980s, we pay
close attention to the drop in strike activity after 1977 and 1981: 1970 (381);
1971 (298); 1972 (250); 1973 (317); 1974 (424); 1975 (235); 1976 (231); 1977
(298); 1978 (219); 1979 (235); 1980 (187); 1981 (145); 1982 (96); 1983 (81);
1984 (62); 1985 (54); 1986 (69); 1987 (46); 1988 (40); 1989 (51); 1990 (44);
1991 (40); 1992 (35); 1993 (35); 1994 (45); 1995 (31); 1996 (37); 1997 (29);
1998 (34); and 1999 (17).
n24 See id. On August 3, 1981, members of PATCO commenced a nationwide strike
against the federal government. See
Clarry v. United States, 85 F.3d 1041, 1043 (2d Cir. 1996). President Reagan responded that day by issuing an ultimatum stating that the
strikers must return to work within 48 hours or lose their jobs. See
id. at 1044. When approximately 11,000 striking air traffic controllers failed to return to
work by August 5, they were discharged. See id. When the strike began,
5 U.S.C. § 7311 (1994) provided,
"An individual may not accept or hold a position in the Government of the United
States...if he...participates in a strike, or asserts the right to strike,
against the Government of the United States."
Id. at 1046. The federal Office of Personnel Management also had a regulation that
disqualified a person from federal employment for up to three years and
subjected such person to a fitness-for-employment condition thereafter. See
id. at 1045. Under these provisions, PATCO strikers remained out of their former jobs even
after President Clinton lifted the ban of their employment on August 12, 1993.
id. at 1044-45. Ruling that President Reagan had authority to ban the striker's re-employment
by the federal government indefinitely, the Clarry court concluded:
"As a consequence of the plaintiffs' participation in the strike against the
United States, the plaintiffs forfeited not only their positions as federal air
traffic controllers but also any right to federal employment."
Id. at 1046.
n25 We also note that air traffic controllers were striking illegally and were
subject by law to termination--a point that many proponents of the PATCO strike
thesis overlook--yet Carter tried to enjoin a lawful strike. See Bernard D.
& Cass R. Sunstein, Public Employee Strikes, Executive Discretion, and the Air
50 U. Chi. L. Rev. 731, 735-36 (1983).
n26 See infra note 408 and accompanying text.
n27 See infra notes 366-379 and accompanying text.
n28 See Striker Replacement Bill Faces Uncertain Future in Senate, Daily Lab. Rep.
(BNA) No. 143, at A17 (July 25, 1991). The House passed a bill to ban the
hiring of permanent replacements on a recorded vote, 247-182, on July 17, 1991.
See id. A threatened filibuster in the Senate sidetracked the bill, however.
Nearly a year later, the stalled bill was brought before the full Senate, but
was defeated of a cloture vote. See Senate Fails to Invoke Cloture on Striker
Replacement Bill, Daily Lab. Rep. (BNA) No. 114, at A10 (June 12, 1992).
n29 See Senate Vote to End Filibuster on Striker Replacement Fails 53-47, Daily
Lab. Rep. (BNA) No. 132, at AA1 (July 13, 1994), available in WESTLAW, BNA, DLR
1994 DLR 132 d3.
n30 See infra Part V. Consider that the last time a President openly considered a
Taft-Hartley injunction was during the Teamsters' 1997 strike against UPS. See John Carmody, The TV
Column, Wash. Post, Aug. 18, 1997, at C06. At its peak, the strike was the
biggest news story of the week, receiving three times the coverage of the next
biggest story, the death sentence of Timothy McVeigh. See id. By the end of the
year, the strike remained one of the top five news events of 1997, according to
a national survey conducted by the Pew Research Center for People and the Press
Foundation. See Darryl W. Levings, '97 in Review--The Old, the New Made Their
Mark, The Kan. City Star, Dec. 31, 1997, at A1.
n31 See infra Part V; see also Leo Rennert, Accord Marks Labor Comeback, News
& Observer (Raleigh, N.C.), Aug. 20, 1997, at A1 (detailing how public support
for the Teamsters actions tipped the scales in the UPS strike). Rennert noted,
"President Clinton played a critical role in determining the final outcome. He
made it possible for the Teamsters to use the full power of the strike weapon
when he refused to invoke the Taft-Hartley law and order 185,000 UPS employees
back to work." Id. Rennert connected this to a Gallup poll which showed fifty-five percent
support for the striking workers and only twenty-seven percent for UPS. Rennert
"Sensing this public mood, White House officials shrugged off pressures from
business groups to halt the strike, noting with some relish that such pleas
came from interests normally opposed to activist government." Id.
n32 See infra Part IV.
n33 See infra notes 61-75 and accompanying text.
n34 See infra notes 76-111 and accompanying text.
n35 See infra notes 118-120.
n36 See infra notes 121-143 and accompanying text.
n37 See infra notes 144-175 and accompanying text.
n38 See infra note 177.
n39 See infra notes 177-186.
n40 See infra notes 176-196 and accompanying text.
n41 See infra notes 192-198 and accompanying text.
n42 See infra notes 199-230 and accompanying text.
n43 See infra notes 231-350 and accompanying text.
n44 See infra notes 243-266 and accompanying text.
n45 See infra notes 267-288 and accompanying text.
n46 See infra notes 289-306 and accompanying text.
n47 See infra notes 307-312 and accompanying text.
n48 See infra notes 313-319 and accompanying text.
n49 See infra notes 320-332 and accompanying text.
n50 See infra notes 352-365 and accompanying text.
n51 See infra notes 366-380 and accompanying text.
n52 See infra notes 380-414 and accompanying text.
n53 See infra note 380.
n54 See, e.g., Irving Bernstein et al., Are Coal Strikes National Emergencies,
6 Indus. & Lab. Rel. Rev. 352 (1953); Robert Dishman, The Public Interest in Emergency Labor Disputes, 45 Am. Pol.
Sci. Rev. 1100 (1951); William Jones, Toward a Definition of
"National Emergency Dispute,"
1971 Wis. L. Rev. 700 (1971); Charles M. Rehmus, Emergency Strikes Revisited,
43 Indus. & Lab. Rel. Rev. 175 (1990). Early studies on
Taft-Hartley injunctions also suffered from data limitations. Since most were written during or shortly
after an emergency strike, they lacked detailed economic evidence. Instead,
these articles and books provided qualitative assessments of the facts and
circumstances in national emergency strikes.
n55 See infra Part II.B.
n56 See infra Part II.C.
n57 See infra Part II.C.
n58 See id.
n59 See Labor Management Relations (Taft-Hartley) Act of 1947, Pub. L. No. 101, 61
n60 See infra Part V.
n61 See, e.g.,
Commonwealth v. Hunt, 45 Mass. (4 Met.) 111 (1842). The court stated that workers could combine for honorable purposes
"to raise their intellectual, moral, and social condition; or to make
improvement in their art."
Id. at 129.
n62 See generally Robert Samuel Wright, The Law of Criminal Conspiracies and
Agreements (Carson's Appendix to American Ed. 1887).
n63 This is suggested in the court's comment that on the facts it could find no
"illegal or criminal means to be adopted for the accomplishment of any purpose."
Hunt, 45 Mass. (4 Met.) at 131.
id. at 131-32, in which the Hunt court ruled that the criminal conspiracy count against the
workers was defective:
It is simply an averment of an agreement amongst themselves not to work for a
person, who should employ any person not a member of a certain association. It
sets forth no illegal or criminal purpose to be accomplished, nor any illegal
or criminal means to be adopted for the accomplishment of any purpose. It was
an agreement, as to the manner in which they would exercise an acknowledged
right to contract with others for their labor. It does not aver a conspiracy or
even an intention to raise their wages....
6 Geo. 4, ch. 129,
§ 4 (1825) (Eng.).
5 Geo. 4, ch. 95,
§ 5 (1824) (Eng.).
n68 See 22 Vict., ch. 34 (1859) (Eng.).
n69 See Wright, supra note 62, at 13-14 (citing 22 Vict., ch. 34, (1859) (Eng.)).
The new law immunized peaceful and reasonable communication from prosecution as
a molestation or obstruction. See 22 Vict., ch. 34.
n70 See Felix Frankfurter
& Nathan Greene, The Labor Injunction 2 (1930) ("Two conceptions which, prior to modern legislation, dominated the attitude of
English law towards collective action by labor--the doctrines of conspiracy and
of restraint of trade--worked themselves permanently into American law."). Frankfurter and Greene then traced common law use of these doctrines as
historical antecedents to state and federal legislation. See id. at 2-17.
n71 There is no definitive explanation for this, however, the leading authorities
on early labor injunctions, Frankfurter and Greene, suggest that labor
disputants sought to bend existing legislation to suit their immediate needs.
See id. In particular, strike-bound employers used federal law prohibiting
obstruction of mail, and also the Interstate Commerce Act, to invoke federal
jurisdiction. See id. at 6. In all likelihood, the exigency of these strikes
made courts more suitable than legislatures for regulating these disputes, but
also employers believed that federal courts would favor them. See id. at 12.
n72 See, e.g.,
State v. Stockford, 77 Conn. 227 (1904);
Jones v. E. Van Winkle Gin & Machine Works, 131 Ga. 336 (1908);
A.R. Barnes & Co. v. Chicago Typographical Union, 232 Ill. 424 (1908);
O'Brien v. People of Illinois, 216 Ill. 354 (1905);
Franklin Union v. People, 220 Ill. 355 (1906);
Underhill v. Murphy, 117 Ky. 640 (1904);
Plant v. Woods, 176 Mass. 492 (1900);
Vegelahn v. Gunther, 167 Mass. 92 (1896);
Enterprise Foundry Co. v. Iron Moulders Union, 149 Mich. 31 (1907);
Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212 (1895);
Branson v. Industrial Workers of World, 95 P. 354 (Nev. 1905);
Connett v. United Hatters of North Am., 74 A. 188 (1909);
In re McCormick, 117 N.Y. Supp. 70 (1909);
Jones v. Maher, 116 N.Y. Supp. 180 (1909);
O'Neil v. Behanna, 182 Pa. St. 236 (1897);
Wick China Co. v. Brown, 164 Pa. St. 449 (1894);
Cote v. Murphy, 159 Pa. St. 420 (1894);
Murdock v. Walker, 152 Pa. St. 595 (1894); and
Crump v. Commonwealth, 6 S.E. 620 (Va. 1888).
For federal common law cases, see
Otis Steel Co. v. Iron Moulders Union, 110 F. 698 (N.D. Ohio 1901);
American Steel & Wire Co. v. Wire Drawers' Union, 90 F. 608 (N.D. Ohio 1898);
Consolidated Steel & Wire Co. v. Murray, 80 F. 811 (N.D. Ohio 1897);
Coeur D'Alene Consol. & Mining Co. v. Miners Union of Wardner, 51 F. 260 (D. Idaho 1892).
n73 Courts recognized the right to strike where workers intended to raise or
maintain wages, or limit working hours. For state cases, see, e.g.,
J.F. Parkinson Co. v. Building Trades Council, 154 Cal. 581 (1908);
State v. Stockford, 77 Conn. 227 (1904);
Beaton v. Tarrant, 102 Ill. App. 124 (1902); and
Karges Furniture Co. v. Amalgamated Woodworkers Local Union, 165 Ind. 421 (1905). For early federal decisions, see, e.g.,
Arthur v. Oakes, 63 F. 310 (7th Cir. 1906),
Thomas v. Cincinnati, N.O. & T.P. Ry. Co., 62 F. 803 (S.D. Ohio 1894).
n74 Edward F. McClennen, Some of the Rights of Traders and Laborers,
26 Harv. L. Rev. 237, 249, 251 (1903).
Frankfurter & Greene, supra note 70, at 17, recounting the end of the great Pullman strike of 1894:
Explaining the collapse of the famous Pullman strike, Eugene V. Debs testified
that the ranks were broken, and the strike was broken up...not by the Army, and
not by any other power, but simply and solely by the action of the United
States Courts in restraining us from discharging our duties as officers and
representatives of the employees....
Id. (internal quote omitted).
n76 The most authoritative and comprehensive strike data for the period appears in
Bureau of Labor Statistics (Florence Peterson), U.S. Dep't of Labor, Strikes in
the United States, 1880-1936 (Bull. No. 651) (Aug. 1937), 21 tbl. 1: 1881
(477); 1882 (476); 1883 (506); 1884 (485); 1885 (695); 1886 (1572); 1887
(1503); 1888 (946); 1889 (1111); 1890 (1897); 1891 (1786); 1892 (1359); 1893
(1375); 1894 (1404); 1895 (1255); 1896 (1066); 1897 (1110); 1898 (1098); 1899
(1838); 1900 (1839).
Frankfurter & Greene, supra note 70, at 105, which summarizes particular aspects of this problem:
Concerning the content of the injunctions, three observations naturally offer
themselves. Many of the activities restrained are punishable independently as
crimes. Others, while not so punishable, constitute torts actionable at
law....The blanket wording of numerous clauses frequently includes the residuum
of conduct even remotely calculated to have effect in the dispute, but neither
criminal nor tortious.
Id. They also noted this worrisome pattern:
"Phrases, and sometimes whole paragraphs, are stereotyped and transferred
verbatim from case to case, without considered application by the court to the
particular facts of each controversy." Id. at 106.
Law Reports, 6 Eq. 551 (1868). Two officers of the Cotton Spinners union were accused of injuring the
employer's property when they published this notice appealing to potential
striker replacements in the Manchester Guardian:
Wanted, all well-wishers to the Operative Cotton Spinners' Association not to
trouble or cause any annoyance at the Springhead Spinning Company, Lees, by
knocking at the door of their office, until the dispute between them and the
self-acting minders is finally terminated.
"Minders" refers to the trade on strike. See id.
id. at 553.
n80 The court noted that:
If the defendants...had carried on a manufactory in the neighborhood of the
plaintiffs' works, and had by any process poured noxious vapours into the
plaintiffs' works to such an extent as to render it impossible for them to
procure workmen to carry on their operations, that would have been a nuisance
tending to the destruction of the plaintiff's property which this court would
have restrained by injunction.
Id. at 554. The court then reasoned that these union officers should not be less amenable
to its jurisdiction simply
"because they proceed to destroy the value of the plaintiff's property in
another but less efficacious mode, namely, by threats and intimidation
rendering it impossible for plaintiffs to obtain workmen." Id.
n81 Id. at 550. An exchange between counsel for the union officers and the judge
illuminates the court's novel extension of equity jurisdiction. Counsel noted:
No rule of the Court is more clearly settled than that it will not sustain a
bill for relief in a criminal matter. That principle was enunciated by Lord
Eldon with reference to libel in
Gee v. Pritchard (2 Swanst. 413): 'The publication of a libel is a crime, and I have no jurisdiction to prevent
the commission of crimes.' That principle has been followed ever
since....Suppose a placard carried up and down the street warning passersby not
to deal with a certain tradesman, would the Court interfere?
Id. The judge replied,
"I suppose the police would." Counsel finished his argument,
"Your Honour has given the answer all at once. It is a question for them, and
not for this Court at all." Id. at 550-51.
Vegelahn v. Guntner, 167 Mass. 92, 101 (1896) (Field, C.J. dissenting). Chief Justice Field observed that when Sherry v.
Perkins became the first American court to cite Springhead Spinning with
approval, that precedent had already been considered and questioned by other
"Some of the language in Spinning Co. v. Riley has been criticized, but the
decision has not been overruled." Id. He then noted that Springhead Spinning continued to be cited, but was also
a point of controversy in American jurisprudence:
"The cases are there cited in which that decision has been doubted or criticized." Id. He then cited
Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69 (1873), as an example of a court that openly questioned the validity of Springhead
Vegelahn, 167 Mass. at 101.
n83 See, e.g.,
McCormick & Fisher v. Local Unions 216, 22 Ohio C.D. 165, 169 (Ohio C. C. Dec. 1911) (citing Springhead Spinning). The court explained:
Our examination of the evidence before us leads to the conclusion that in at
least the earlier stages of the boycott against the Grand Hotel the distinction
between lawful, peaceable persuasion and unlawful coercion was not sufficiently
regarded by the members and agents of the unions by whose authority printed
tickets were procured and distributed in front of the hotel. Not all the
officers of the unions or their agents are shown to have used other then
legitimate means for the accomplishment of the concerted purpose, but some,
over-zealous, seem to have forcibly interfered to prevent patronage of the
hotel. It is too familiar a rule to require citation of authority that the acts
of one member of a combination in furtherance of a common end must be deemed
the acts of all.
We are also inclined to the view that the cards circulated at some stage of
the proceedings bearing words of warning to patrons of the hotel that their
names would be published, carried an implied threat that the result would be
injurious to them. Otherwise, the notice would have had no deterrent effect and
would have been futile as a means of furthering the boycott.
That the result of all these acts, persuasive and coercive, has been a heavy
loss of patronage to the plaintiffs, and that it is utterly impracticable to
measure in damages the extent to which such loss has been or may be enhanced by
such of them as we have described as overstepping legal bounds, is clearly
disclosed by the evidence, so that, even without the admission made in the
record that the defendants are insolvent, no legal remedy is apparent, and the
plaintiffs were justified in the institution of the action. It is the judgment
of a majority of the court that the temporary injunction heretofore allowed
against the defendants should be made perpetual, and such will be the decree.
n84 See Gregory, supra note 4, at 492.
147 Mass. 212 (1888).
Id. at 212. The employer, a shoe manufacturer, filed a bill in equity claiming that his
employees left their jobs after being intimidated by members of the Lasters
Union. Id. Strikers paraded in front of the factory with a banner stating:
"Lasters on a strike; lasters are requested to keep away from P.P. Sherry's
until the present trouble is settled. Per order L.P.U." Id. The employer's complaint also alleged that
"because of such banners, crowds of people gathered in front of the factory when
the lasters finished their work; that the lasters were injured and threatened
with bodily harm if they continued in the plaintiff's employ...." Id.
Id. at 213-14. Its reasoning was typical for injunction courts of this period:
"We think that the plaintiff is not restricted to his remedy by an action at
law, but is entitled to relief by injunction. The acts and the injury were
Id. at 214.
n88 See, e.g.,
Rice, Barton & Fales Mach. Co. v. Willard, 242 Mass. 566 (1922);
United Shoe Machinery Corp. v. Fitzgerald, 237 Mass. 537 (1921);
Martin v. Francke, 227 Mass. 272 (1917);
Cornellier v. Haverhill Shoe Mfrs. Assoc., 221 Mass. 554 (1915);
Burnham v. Dowd, 217 Mass. 351 (1914);
Berg Auto Trunk Co. v. Weiner, 121 Misc. 796 (N.Y. 1923);
Butterick Publ'g Co. v. Typographers Union No. 6, 50 Misc. 1 (N.Y. 1906);
Herzog v. Fitzgerald, 74 App. Div. 110 (N.Y. 1902);
Kerbs v. Rosenstein, 56 App. Div. 619 (N.Y. 1900);
Sun Printing & Publ'g Ass'n v. Delaney, 48 App. Div. 623 (N.Y. 1900).
67 Mass. 92 (1896).
Id. at 97.
Id. at 98.
Id. at 103 (Field, J., dissenting). Field reasoned:
Something more is necessary to justify issuing an injunction. If it is in
violation of any ordinance of the city regulating the use of streets, there may
be a prosecution for that, and the police can enforce the ordinance; but if it
is merely a peaceful mode of finding out the persons who intend to enter the
plaintiff's premises to apply for work, and of informing them of the actual
facts of the case, in order to induce them not to enter the plaintiff's
employment, in the absence of any statute relating to the subject, I doubt if
it is illegal, and I see no ground for issuing an injunction against it.
Id. at 103.
Id. at 104.
Id. at 105.
Kolley v. Robinson, 187 F. 415 (8th Cir. 1911);
United States v. Debs, 64 F. 724 (N.D. Ill. 1894);
United States v. Workingmen's Council of New Orleans, 54 F. 994 (D. La. 1893);
Toledo, Ann Arbor & Northern Mich. R.R. Co. v. Pennsylvania R.R. Co., 54 F. 730 (D. Mich. 1893);
Goldfield Consol. Mining Co. v. Goldfield Miners Union No. 220, 159 F. 500 (D. Nev. 1908);
Pope Motor Car Co. v. Keegan, 150 F. 148 (N.D. Ohio 1906);
Thomas v. Cincinnati, 62 F. 803 (S.D. Ohio 1894);
Casey v. Cincinnati Typographical Union No. 3, 45 F. 135 (S.D. Ohio 1891);
Farmers Loan & Trust Co. v. North Pacific R.R. Co., 60 F. 803 (D. Wis. 1894).
64 F. 27 (E.D. Mo. 1894).
Id. at 31.
62 F. 824 (N.D. Ind. 1894).
Id. at 827 ("I think the injunction as against unknown defendants is valid and binding when
the injunction order is served upon them, although they are not at the time
parties to the suit.").
n101 Id. In considering Hiram Alger's motion to quash an information for contempt
of an injunction issued in connection with a rail strike, Judge Baker reasoned,
"That brings us to the question of the technical sufficiency of the affidavit...." Id. He noted that
"essential thing is the filing of a statement or charge that shall show clearly
and distinctly that the restraining order has been served on the defendant, or,
if it has not been served on him, that he had notice or knowledge of its
Id. at 827-28. The judge concluded that the injunction was too vague to support an order for
Now, in this case, the information, I think, lacks considerable of having the
certainty and precision that is essential. It is not alleged that this man was
one of the unknown parties that are referred to in the injunction. It is not
alleged that the restraining order was a lawful one, in the language of the
statute. It does not allege--and that is the most serious thing, to my
mind--that either by his words or his acts he was engaged in aiding the common
object with other members of the American Railway Union.
Id. at 828 (emphasis added).
n102 See Felix Frankfurter
& Nathan Greene, supra note 69, at 13-14 (explaining that business often
contrived a way to obtain federal diversity jurisdiction). For cases involving
employer contrivance of diversity jurisdiction using foreign parties such as
bondholders and customers adversely affected by strikes, Frankfurther and
Niles-Bement Co. v. Iron Moulders Union, 254 U.S. 77 (1920);
Fortney v. Carter, 203 F. 454 (4th Cir. 1913);
Davis v. Henry, 266 F. 261 (6th Cir. 1920);
Vonnegut Mach. Co. v. Toledo Mach. & Tool Co., 263 F. 192 (N.D. Ohio 1920), rev'd
274 F. 66 (6th Cir. 1921);
Dail-Overland Co. v. WillysOverland, 263 F. 171 (N.D. Ohio 1919), aff'd
274 F. 57 (6th Cir. 1921);
Stephens v. Ohio State Tel. Co., 240 F. 759 (N.D. Ohio 1917);
Chesapeake & O.C.A. Co. v. Fire Creek Coal & Coke Co., 119 F. 942 (S.D. W. Va. 1902), aff'd
124 F. 305 (4th Cir. 1903);
Ex parte Haggerty, 124 F. 441 (N.D. W. Va. 1902).
245 U.S. 229 (1917).
id. at 244-46. A
"yellow dog contract" is
"an employment practice by which an employer requires an employee to sign an
agreement promising as a condition of employment that he will not join a union,
and will be discharged if he does join." Black's Law Dictionary 1616 (6th ed. 1990).
Hitchman Coal & Coke Co., 245 U.S. at 246-48.
id. at 259-60.
id. at 261-62.
id. at 259 ("We are constrained to hold that the purpose entertained by defendants to bring
about a strike at plaintiff's mine in order to compel plaintiff, through fear
of financial loss, to consent to the unionization of the mine as the lesser
evil, was an unlawful purpose....").
Id. at 248. In dissent, Justice Louis Brandeis reasoned:
It is urged that a union agreement curtails the liberty of the operator. Every
agreement curtails the liberty of those who enter into it. The test of legality
is not whether an agreement curtails liberty, but whether the parties have
agreed upon something which the law prohibits or declares otherwise to be
inconsistent with the public welfare.
Id. at 270 (Brandeis, J., dissenting).
5 Geo. 4, ch. 95,
§ 5 (June 21, 1824).
n111 See, e.g.,
Commonwealth v. Hunt, 45 Mass. (4 Met.) 111 (1842).
William Draper Lewis, Strikes and Courts of Equity, 46 Am. L. Reg. (N.S. 37) 1, 2 (1898) ("The courts still say that these injunctions are not criminal proceedings, yet
the language of the opinions indicates very clearly their essentially criminal
n113 See F. J. Stimson, The Modern Use of Injunctions, 10 Pol. Sci. Q. 189, 192
(1895) (condemning contempt proceedings because they do away with
"the criminal law and its safeguards of indictment, proof by witnesses, jury
trial, and a fixed and uniform punishment"); see also
William Draper Lewis, A Protest Against Administering Criminal Law by Injunction--The Debs Case, 33 Am. L. Reg. (N.S. 1) 879, 883 (1894) (noting that in the case of the Pullman Strike--a strike in Chicago that
crippled rail traffic across the nation--there was
"no necessity to strain the principles of the procedure of the civil courts, and
to make a precedent which will be used over and over again to undermine the
most valuable of the safeguards of individual liberty--the trial by jury").
n114 See Charles Claflin Allen, Injunction and Organized Labor,
28 Am. L. Rev. 828, 847 (1894) (observing that
"injunction writs have covered the sides of cars, deputy marshals and Federal
soldiers have patrolled the yards of railway termini, and chancery process has
been executed by bullets and bayonets"). Allen despaired that equity was leading to government by injunction:
Equity jurisdiction has passed from the theory of
"public rights" to the domain of political prerogative. In 1888, the basis of jurisdiction was
the protection of the private right of civil property; in 1893, it was the
preservation of public rights; in 1894, it has become the enforcement of
Id.; see also Gregory, supra note 4, at 511:
It would seem as if the government of this vast new territory, which equity
has successfully taken possession of, should be provided for by adequate
"the door should be locked before the horse is stolen." Already many courts deny the right of the legislature to even regulate their
proceedings in contempt cases.
n115 See Gregory, supra note 4, at 502 ("We have seen...that the findings of the judge as to the facts cannot be
reviewed or examined, however erroneous, and this often in matters where his
personal feeling is most deeply involved, since it is apt to be the enforcement
of his own injunction."); see also Lewis, supra note 112, at 9:
In one contempt case the judge complains:
"A striking miner said, 'I will eat mine [the injunction] for breakfast.'" Such expressions as these concerning one's orders are not calculated to put
one in a proper frame of mind to try the fact as to whether a particular person
has violated the order. Indeed, if there is any doubt of the truth of the
proposition that a man should not try violations of his own orders, reading the
contempt cases would expel that doubt. No one can read these cases without
realizing that the judge is upholding not what he believes to be the law, but
his own personal order.
n116 See Gregory, supra note 4, at 505:
It is the contention of...labor organizations that these cases establish the
legality of combinations of capitalists...for the purpose...of disciplining
those who do not join their combination...but that the courts hold an exactly
opposite rule when they pass upon the peaceful combinations of humbler laboring
man to maintain wage rates....
Id. Gregory concluded,
"It is difficult to see why the rules should not be identical...." Id.; cf.
William H. Taft, Recent Criticism of the Federal Judiciary, 34 Am. L. Reg. (N.S. 2) 576, 605 (1895), defending injunctions:
The efficacy of the processes of a court of equity to prevent much of the
threatened injury from the public and private nuisances which it is often the
purpose of the leaders of such strikes to cause, has led to the charge, which
is perfectly true, that judicial action has been much more efficient to
restrain labor excesses than corporate evils and greed. If it were possible by
the quick blow of an injunction to strike down the conspiracy against public
and private rights involved in the corruption of a legislature or a council,
Federal and other courts would not be less prompt to use the remedy than they
are to restrain unlawful injuries by labor unions. But I have had occasion to
point out that the nature of corporate wrong is almost wholly beyond the reach
of courts, especially those of the United States. The corporate miners and
sappers of public virtue do not work in the open....On the other hand, the
chief wrongs committed by labor unions are the open defiant trespass upon
property rights and violations of public order, which the processes of courts
are well adapted both to punish and prevent.
n117 See William Draper Lewis, Injunctions to Restrain Libels, and Courts of
31 Am. L. Rev. (N.S. 5) 782, 785, 786 (1892) placing labor injunctions in this historical context:
The Star Chamber...spent its time in issuing orders to persons forbidding them
to commit crime. The popular feeling against the Court was based, not so much
on the fact that
"many new-fangled crimes were invented," as on the objection to the summary manner in which those charged with contempt
of the Court's orders were convicted.
Id. He added,
"In America there has been no hesitation in restraining threatened crimes." Id. (emphasis added).
n118 See Gregory, supra note 4, at 509 (reporting the failure of the House Bill);
see also S. Rep. No. 54-827, at 1, 54th Cong., 1st. Sess., (1896); S. Rep. No.
827 (1896), accompanying S. 2984. Section 4 of S. 2984 provided that
"such trial shall be by the court, or, in its discretion, upon application of
the accused, a trial by jury may be had as in any criminal case."
n119 See Clayton Act, 38 Stat. 730 (1914) (codified as amended at
15 U.S.C. § § 12-37 (1994)).
n120 See Erdman Act, 38 Stat. 424 (1898). Congress enacted the Erdman Act as a
response to numerous labor disputes affecting the important railroad industry.
See Report on the Chicago Strike of June-July, 1894 XXXII-XXXIX, LIV (1895).
The law grew out of the nation's bitter experience in the 1894 Pullman rail
strike and recommendations from a federal commission. See id. (stating that if
"take labor into consultation at proper times, much of the severity of strikes
can be tempered and their number reduced"). Thus, the Erdman Act protected employees who joined unions, recognized the
representative function of unions, and provided for mediation and conciliation
of disputes. The law also made yellow dog contracts illegal, but extended only
to the rail industry.
Adair v. United States, 208 U.S. 161 (1908). The Court held that the yellow-dog contract provision under the Erdman Act
violated the due process rights of employees, noting that the
"right of a person to sell his labor upon such terms as he deems proper is...the
same as the right of the purchaser of labor to prescribe the conditions....The
employer and the employee have equality of right, and any legislation that
disturbs that equality is an arbitrary interference with the liberty of
Id. at 174-75. The Court treated Congress's promotion of unionization of rail employees as an
unconstitutional use of its powers under the commerce clause. Id. Union
membership, declared the Court,
"cannot have, in itself and in the eye of the law, any bearing upon the commerce
with which the employee is connected by his labor...."
Id. at 178. Thus, the Court contradicted the finding of the U.S. Strike Commission,
codified in the Erdman Act, that measures to promote unionism would insulate
the industry from debilitating labor disputes.
Loewe v. Lawler (Danbury Hatters Case), 208 U.S. 274 (1908) (construing the Sherman Act to include labor combinations as unlawful
restraints against trade). Enacted in 1890, the Sherman Act did not
specifically include unions when it outlawed
"every contract, combination...or conspiracy, in restraint of trade or
commerce...." Sherman Act, 26 Stat. 209 (1890),
15 U.S.C. § 1 (1994). Hat manufacturers in Danbury, Connecticut sued union officers who
attempted to unionize their workers by orchestrating recognition strikes and
circulating publications urging the public to boycott the hatters. See
Loewe, 208 U.S. at 284. The Court concluded,
"In our opinion, the combination described in the declaration is a combination
'in restraint of trade or commerce among the several states,' in the sense in
which those words are used in the act."
Id. at 292. The Court reasoned that the Sherman Act treated labor organizations as
"The records of Congress show that several efforts were made to exempt, by
legislation, organizations of farmers and laborers from the operation of the
act, and that all these efforts failed...."
Id. at 310.
n123 See id.
n124 This history is recounted in
Apex Hosiery Co. v. Leader, 310 U.S. 469, 488 n.7 (1940) (citing H.R. 6640, 52nd Cong.; H.R. 10539, 56th Cong.; H.R. 11667, 56th Cong.;
S. 649 and H.R. 14947, 57th Cong.; S. 1728, H.R. 166, and H.R. 2636, 52nd
Cong.; H.R. 7938, 55th Cong.; H.R. 11988, 57th Cong.; S. 1546, 55th Cong.).
n125 38 Stat. 730 (1914) (codified as amended at
15 U.S.C. § § 12-37 (1994)). Section 6 provided,
"The labor of a human being is not a commodity or article of commerce. Nothing
contained in the anti-trust laws shall be construed to forbid the existence and
operation of labor...organizations, instituted for the purposes of mutual help." Id. That section also stated:
"Nor shall labor organizations, or the members thereof, be held or construed to
be illegal combinations or conspiracies in restraint of trade, under the
antitrust laws." Id. This section appears to have been influenced by English law. See
§ 3 of the Trade Union Act of 1871, 34
& 35 Vict., ch. 31 (1871) (providing that
"the purposes of any trade union shall not, by reason merely that they are in
restraint of trade, be unlawful so as to render void or voidable any agreement
15 U.S.C. § § 1-7 (1994).
Frankfurter & Greene, supra note 101, at 139 ("The attempt to withdraw labor unions from the scope of federal antitrust
legislation is a long and lively bit of Congressional history."). Frankfurter and Greene specifically observed:
"Following the early decisions by the federal courts that the Sherman Law
covered combinations of labor as well as capital, the effort began in Congress
to express a contrary intent." Id. at 139-40.
n128 38 Stat. 730. This provision restored equity to its previous boundaries in
American and English jurisprudence. See 2 Joseph Story, Commentaries on Equity
Jurisprudence As Administered in England and America 228-29 (M. Bigelow ed.,
1988) (describing judicial power to issue injunctions):
The interference of Courts of Equity by way of injunction is undoubtedly
founded upon the ground of restraining irreparable mischief....It is not every
case which will furnish a right of action against a party...but there must be
such an injury as from its nature is not susceptible of being adequately
compensated by damages at law, or such as from its continuance or permanent
mischief must occasion a constantly recurring grievance, which cannot be
otherwise prevented but by an injunction.
15 U.S.C. § 20 (1994):
No such restraining order or injunction shall prohibit any person or persons,
whether singly or in concert, from terminating any relation of employment, or
from ceasing to perform any work or labor, or from recommending, advising, or
persuading others by peaceful means so to do; or from attending at any place
where any such person or persons may lawfully be, for the purpose of peacefully
obtaining or communicating information, or from peacefully persuading any
person to work or to abstain from working; or from ceasing to patronize or to
employ any party to such dispute, or from recommending, advising, or persuading
others by peaceful and lawful means so to do; or from paying or giving to, or
withholding from, any person engaged in such dispute, any strike benefits or
other moneys or things of value; or from peaceably assembling in a lawful
manner, and for lawful purposes....
n130 38 Stat. 730
Forrest v. United States, 277 F. 873, 874-76 (9th Cir. 1922) (involving a successful suit by the United States to enjoin certain maritime
unions from inducing merchant workers from leaving the service of a U.S. ship
by intimidating, threatening, and assaulting them). The appeals court affirmed
the lower court's contempt conviction against a union officer who violated an
injunction by beating a ship worker after he tendered his union resignation.
Id. On appeal, the union officer claimed his right to a jury trial was denied.
§ 22 of the Clayton Act, the appeals court dismissed this contention,
"The writ violated having issued in a suit by the United States in its behalf,
it is not within the class of contempts where trial by jury is allowed...."
Id. at 876.
n132 H. Rep. No. 62-613, 62d Cong., 2d Sess., at 6 (1912). The House report noted:
That complaints have been made and irritation has arisen out of the trial of
persons charged with contempt in the Federal courts is a matter of general and
common knowledge. The charge most commonly made is that the courts, under the
equity power, have invaded the criminal domain, and under the guise of trials
for contempt have really convicted persons of substantive crimes for which, if
indicted, they would have had a constitutional right to be tried by jury. It
has been the purpose of your committee in this bill to meet this complaint,
believing it to be a sound public policy so to adjust the processes of the
courts as to disarm any legitimate criticism....
15 U.S.C. § 22 (1994).
257 U.S. 184 (1921).
id. at 196.
n136 See id.
id. at 193-94 (enjoining use of
"persuasion, threats, or personal injury, intimidation, suggestion of danger or
threats of violence" and
"interfering with, hindering, obstructing or stopping any" foundry worker). The injunction also prohibited
"assembling, loitering or congregating about" the foundry and picketing. Id.
id. at 212-13.
id. at 209. The Court enlarged on this idea, stating:
Labor unions are recognized by the Clayton Act as legal when instituted for
mutual help and lawfully carrying out their legitimate objects....A single
employee was helpless in dealing with an employer. He was dependent ordinarily
on his daily wage for the maintenance of himself and family....Union was
essential to give laborers opportunity to deal on equality with their employer.
They united to exert influence upon him and to leave him in a body in order by
this inconvenience to induce him to make better terms with them. They were
withholding their labor of economic value to make him pay what they thought it
was worth....The strike became a lawful instrument in a lawful economic
n141 See Clayton Act, 38 Stat. 730 (1914) (codified as amended at
15 U.S.C. § § 12-37 (1994)).
American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209 (1921). The court stated:
To render this combination at all effective, employees must make their
combination extend beyond one shop. It is helpful to have as many as may be in
the same trade in the same community united, because in the competition between
employers they are bound to be affected by the standard of wages of their trade
in the neighborhood.
Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 (1917) (noting that strikes with a national or multistate economic objective could be
enjoined as violations of antitrust law).
254 U.S. 443 (1921).
274 U.S. 37 (1927).
n146 See Edwin E. Witte, The Government in Labor Disputes 69-70 (1932):
In the fifteen years' history of the Clayton Act, there have been a great many
more cases against labor under the federal antitrust laws than during the
previous twenty-two years. As many of them are unreported, their exact number
is not known, but in this period have occurred at least twenty-three criminal
prosecutions, six damage suits, and about forty suits for injunctions.
Twenty-eight of these criminal prosecutions and injunctions were instituted by
the federal Department of Justice, or by United States district attorneys. In
more than half of the criminal cases convictions have resulted, with long
prison sentences in several instances. Considerably more than half of the
injunctions sued for have been allowed, and there have been settlements for
large damages in two actions.
Duplex Printing Press Co. v. Deering, 254 U.S. 443, 479-80 (1921) superseded by statute as stated in
Burlington N. R.R., 481 U.S. 429 (1987).
n148 See id.
n149 See id.
n150 See id.
n151 See id.
id. at 463.
n153 See id.
n154 See id.
n155 The Court narrowly construed the Clayton Act's labor exemption in
§ 6, explaining that the section
"assumes the normal objects of labor organization to be legitimate" but
"there is nothing in the section to exempt such an organization or its members
from accountability where it or they depart from its normal and legitimate
objects and engage in an actual combination or conspiracy in restraint of trade."
Id. at 469. In addition, the Court narrowly construed
§ 20, stating:
Nor can section 20 be regarded as bringing in all members of a labor
organization as parties to a
"dispute concerning terms or conditions of employment" which proximately affects only a few of them, with the result of conferring
upon any and all members,--no matter how many thousands there may be, nor how
remote from the actual conflict--those exemptions which Congress in terms
conferred only upon parties to the dispute.
Id. at 472. Thus, the Court articulated a basis for enjoining all secondary activities
(boycotts and sympathy strikes), even though Congress appeared to protect much
worker activity from injunctions.
n156 See id.
id. at 479-80 (Brandeis, J., dissenting).
Id. at 480.
Id. at 487-88. When Brandeis wrote, there was no NLRA to preserve the employment status of
strikers. Thus, employers were free to discharge strikers or treat them as
Bedford Cut Stone Co. v. Journeyman Stone Cutter's Ass'n. of N. Am., 274 U.S. 37, 41 (1927).
id. at 42.
id. at 43. The union referred to the Company's product as
"unfair" stone. Id.
id. at 43.
id. at 43-45.
id. at 55.
Id. at 54.
Id. at 51.
Montgomery v. Pacific Elec. Ry. Co., 258 F. 382 (9th Cir. 1919);
Kroger Grocery & Baking Co. v. Retail Clerks' Int'l Protective Ass'n Local No. 424, 250 F. 890 (E.D. Mo. 1918);
Stephens v. Ohio State Tel. Co., 240 F. 759 (N.D. Ohio 1917).
Canoe Creek Coal Co. v. Christinson, 281 F. 559 (W.D. Ky. 1922). The employer sought an injunction against strikers and nonemployee
Id. at 562. Concluding that strikers had severed their employment, and were no longer
employees, the court reasoned that
"this action is not one between an employer and employees...nor between
employers and employees...nor between employees, none of the parties being
either one or the other in respect to each other."
Id. at 562. Concluding that this case fell outside the Clayton Act, the court ruled that
the defendants were not entitled to a jury trial on their contempt charge. See
id. at 568.
Patton v. United States, 288 F. 812 (4th Cir. 1923), members of the United Mine Workers were enjoined from inciting coal workers to
break their personal employment contracts, and Patton was subsequently charged
with violating this injunction. See
id. at 814. The court refused his demand for jury trial, and the appeals court affirmed,
The contention is that the bill of particulars set out acts which constituted
a criminal offense under the West Virginia statute and that therefore, under
[the Clayton Act], the defendants were entitled to a jury trial. The West
Virginia statute provides: ANor shall any person...by force, threats, menaces,
or intimidation...prevent...from working...any person...." The bill of particulars does not charge force, threats, menaces, or
intimidation....It follows that nothing is charged which would be an offense
under the criminal statute, and therefore the appellants were not entitled to a
Id. at 814.
Taliaferro v. United States, 290 F. 906 (4th Cir. 1923). After its union went out on strike, the Chesapeake
& Ohio Railroad obtained an injunction against
"unions and each and every officer, agent, and member thereof...and any and all
persons conspiring or associating with the defendant unions" that prohibited
"annoying, insulting, or interfering" with striker replacements.
Id. at 907. A barber who was not directly involved in the dispute was sympathetic to
strikers and agreed to post a large sign in his shop window stating,
"No Scabs Wanted in Here." Id. As a result, U.S. Marshals stationed in his town entered his shop and
demanded that he remove the sign. See id. He refused to do so, even after being
formally served with the injunction, and was brought before the court on
contempt charges. See id. Relying on the Clayton Act, he demanded a jury trial,
but this was denied. See id. He was fined after being found guilty and lost his
id. at 912.
Pittsburgh Terminal Coal Corp. v. United Mine Workers, 22 F.2d 559 (W.D. Pa. 1927) (rejecting common-law right to strike without violence, intimidation, or
molestation of others).
Borderland Coal Corp. v. International Org. of United Mine Workers of Am., 275 F. 871, 873-74, modified,
278 F. 57 (1921) (stretching antitrust theory by reasoning that interstate union organizing,
financed by assessing membership dues in West Virginia to aid in organizing
miners in Indiana, would ultimately obstruct trade).
Tosh v. West Kentucky Coal Co., 252 F. 44 (6th Cir. 1918). A court in 1907 restrained mine union organizers
"from in any manner interfering with, molesting, hindering, obstructing, or
stopping any business of the complainant...."
Id. at 45. In 1917 a new labor dispute arose, and the company sued to enforce the 1907
id. at 45. Under the Clayton Act, defendant union members were convicted of contempt by a
id. at 45-46. The appeals court threw out the convictions, however, because the 1907 order
did not apply to the organizers in 1917. See
id. at 47. The court reflected upon the history of labor injunctions when it explained:
If the injunction of 1907 is of its own force applicable to new conditions in
1917, no reason appears why it would not be applicable to conditions 20 years,
or even 30 years, after the decree is entered.... Under such circumstances the
recognition of the power of summary prosecution for contempt, without previous
adjudication that the existing conditions are such as to justify injunction,
especially where the remedy is sought to be exercised, not through the public
officers, but by the employer alone, and primarily on behalf of its private
interests, is fraught with great possibilities for oppression.
Id. at 50-51.
n175 75 Cong. Rec. 5470 (1932) (testimony of Rep. Browning); see also id. at 5468
(statement of Rep. Beedy); id. at 5464 (statement of Rep. O'Connor); id. at
5488 (statement of Rep. Celler); H.R. Rep. No. 669, 72d Cong., 1st Sess. 2-11
(1932); S. Rep. No. 163, 72d Cong., 1st Sess. 7-14, 16-18 (1932).
n176 Witte, supra note 146, at 69.
§ 1, 47 Stat. 70 (1932) (current version at
29 U.S.C. § § 101-15 (1994
& Supp. V 1999)).
n178 See 73 Cong. Rec. 4474, 4508 (1932).
n179 Statement of Rep. LaGuardia, supra note 5; see also 73 Cong. Rec. 4474, 4502
§ 113 of the Norris-LaGuardia Act,
29 U.S.C. § 113 (1994):
(a) A case shall be held to involve or grow out of a labor dispute when the
case involves persons engaged in the same industry, trade, craft, or
occupation; or have direct or indirect interests therein; or who are employees
of the same employer; or who are members of the same or an affiliated
organization of employers or employees; whether such dispute is
(1) between one or more employers or associations of employers and one or more
employees or associations of employees;
(2) between one or more employers or associations of employers and one or more
employers or associations of employers; or
(3) between one or more employees or associations of employees and one or more
employees or associations of employees; or when the case involves any
conflicting or competing interests in a 'labor dispute' (as hereinafter
defined) of 'persons participating or interested in' therein (as hereinafter
(b) A person or association shall be held to be a person engaged or interested
in a labor dispute if relief sought against him or it, and if he or it is
engaged in the same industry, trade, craft, or occupation in which such dispute
occurs, or has a direct interest therein, or is a member, officer, or agent of
any association composed in whole or in part of employers and employees engaged
in such industry, trade, craft, or occupation.
(c) The term 'labor dispute' includes any controversy concerning terms or
conditions of employment, or concerning the association or representation of
persons in negotiating, fixing, maintaining, changing, or seeking to arrange
terms or conditions of employment, regardless of whether or not the disputants
stand in the proximate relation of employer and employee.
29 U.S.C. § 113(c) (1994) (defining the types of labor disputes in which courts were divested
The term 'labor dispute' includes any controversy concerning terms or
conditions of employment, or concerning the association or representation of
persons in negotiating, fixing, maintaining, changing, or seeking to arrange
terms or conditions of employment, regardless of whether or not the disputants
stand in the proximate relation of employer and employee.
Id. (emphasis added).
29 U.S.C. § 1004 (1994):
No court of the United States shall have jurisdiction to issue any restraining
order or injunction in any case involving or growing out of a labor dispute to
prohibit any person or persons participating or interested in such
dispute...from doing, whether singly or in concert, any of the following acts:
(a) Ceasing or refusing to perform any work or to remain in any relation of
(b) Becoming or remaining a member of any labor organization or of any labor
(c) Paying or giving to, or withholding from, any person participating or
interested in such labor dispute, any strike or unemployment benefits or
insurance, or other moneys or things of value;
(d) By all lawful means aiding any person participating or interested in such
labor dispute who is being proceeded against in, or is prosecuting, any such
action or suit in any court of the United States or any State;
(e) Giving publicity to the existence of, or the facts involved in, any labor
dispute, whether by advertising, speaking, patrolling, or by any other method
not involving fraud or violence;
(f) Assembling peaceably to act or to organize to act in promotion of their
interests in a labor dispute;
(g) Advising or notifying any person of an intention to do any of the acts
(h) Agreeing with other persons to do or not to do any of the acts heretofore
(i) Advising, urging, or otherwise causing or inducing without fraud or
violence the acts heretofore specified....
Jacksonville Bulk Terminals, Inc. v. International Longshoremen Ass'n., 457 U.S. 702, 716 (1982). The court stated:
The legislative history is replete with criticisms of the ability of powerful
employers to use federal judges as 'strike-breaking' agencies; by virtue of
their almost unbridled 'equitable discretion,' federal judges could enter
injunctions based on their disapproval of the employees' objectives, or on the
theory that these objectives or actions, although lawful if pursued by a single
employee, became unlawful when pursued through the 'conspiracy' of concerted
id. at 702. The International Longshoremen's Association refused to handle any cargo in
transit to the Soviet Union after President Carter announced trade sanctions to
protest that nation's invasion of Afghanistan. See id. A shipper who was
transporting goods that were not covered by sanctions won an injunction to
compel the union to handle this cargo. See id. Striking down the injunction,
the majority opinion reasoned that the
"language of the Norris-LaGuardia Act does not except labor disputes having
their genesis in political protests. Nor is there any basis in the statutory
language for the argument that the Act requires that each dispute relevant to
the case be a labor dispute." See
id. at 711.
Burlington N. R.R. Co. v. Brotherhood of Maintenance of Way Employes sic, 481 U.S. 429 (1987). A railroad union had a dispute over renewal of a labor agreement with a small
subsidiary of Guilford Transportation Industries.
Id. at 432. Having exhausted Railway Labor Act settlement procedures, the union struck all
Guilford railroads. See id. Later, it picketed other railroads that
interchanged traffic with Guilford. See
id. at 433. A federal court enjoined this secondary picketing, reasoning that the
"substantial alignment" test governs interpretation of the NorrisLaGuardia Act.
Id. at 434. This meant that lawful strike activity was
"confined to activities that further the union's economic interests in a labor
dispute, and that are directed at the primary employer and other substantially
aligned employers--those having an ownership interest in, or providing
essential services or facilities to, the primary employer." Id. Since the other railroads were not
"substantially aligned" with Guilford, the court found that the union's secondary picketing did not
grow out of a labor dispute covered by the Norris-LaGuardia Act. The Supreme
Court ruled that the district court had no jurisdiction to order an injunction.
The Court examined the history of the Norris-LaGuardia Act and found that
"responded directly to the construction Clayton Act in Duplex, and to the
pattern of injunctions entered by federal judges."
Id. at 438.
Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940). A union engaged in a sit-down strike at a hosiery plant after the company
rejected a demand for a union shop. See
id. at 481-82. By seizing the plant, the union shut down production from May 3 to June 23,
1937. Militants were forcibly removed from the property after an injunction was
id. at 482. The union was sued under the Sherman Act, and found liable for treble damages
totaling $ 711,932. See
id. at 481. On appeal, the Supreme Court overturned the verdict. Reasoning that the strike
"did not have as its purpose restraint upon competition in the market for
petitioner's product," but was motivated
"to compel petitioner to accede to the union demands" for a closed shop, the union's conduct fell outside scope of the Sherman Act.
Id. at 501. The majority based its finding on several federal laws, including the
Norris-LaGuardia Act, in which Congress intended
"that combinations of workers eliminating competition among themselves and
restricting competition among their employers based on wage cutting are not
contrary to the public policy."
Id. at 504 n.24. The Court said,
"If...we were to hold that a local factory strike...violates the Sherman law,
practically every strike in modern industry would be brought within the
jurisdiction of the federal courts, under the Sherman Act, to remedy local law
Id. at 513.
398 U.S. 235 (1970).
id. at 238.
id. at 238-39.
id. at 238-40.
id. at 249-53.
428 U.S. 397, 406-07 (1976) (stating that the holding in Boys Market was intended to be a narrow one,
"dealing only with the situation in which the collective-bargaining contract
contained mandatory grievance and arbitration procedures").
id. at 408 n.10.
330 U.S. 258 (1947). The federal government seized privately owned coal mines in 1946 and
implemented a collective bargaining agreement with the Mine Workers under the
War Labor Disputes Act. See
id. at 262-66. However, the union went out on strike, in violation of a federal court's
restraining order. See
id. at 267. The injunction barred the union and its officers from terminating the existing
collective bargaining agreement, breaching its obligations under the agreement,
and encouraging or participating in any work stoppage or slowdown. See
id. at 266 n.12. The majority opinion concluded that
"in a case such as this, where the Government has seized actual possession of
the mines, or other facilities, and is operating them, and the relationship
between the Government and the workers is that of employer and employee, the
Norris-LaGuardia Act does not apply."
Id. at 289.
n195 See, e.g., Ariz. Rev. Stat. Ann.
§ 12-1808 (1999); Colo. Rev. Stat. Ann.
§ 8-3-118 (1999); Conn. Gen. Stat. Ann.
§ 31-113 (1999); Haw. Rev. Stat.
§ 380-1 (1999); Idaho Code
§ 44-703 (1999); Ill. Ann. Stat. ch. 820
§ 5/1 (Smith-Hurd 1999); Ind. Code Ann.
§ 22-6-1-1 (1999); Kan. Stat. Ann.
§ 60-904 (1999); La. Rev. Stat. Ann.
§ 23:844 (West 1999); Me. Rev. Stat. Ann. tit. 26,
§ 5 (1999); Md. Code Ann. [Labor and Employment]
§ 4-304 (1999); Mass. Gen. Ann. Laws ch. 214,
§ 6 (1999); Minn. Stat. Ann.
§ 185.02 (West 1999); Mont. Code Ann.
§ 27-19-103 (1999); N.J. Rev. Stat.
§ 2A:15-51 (1999); N.M. Stat. Ann.
§ 50-3-1 (1999); N.Y. Lab. Law
§ 807 (McKinney 1999); N.D. Cent. Code
§ 34-08-01 (1999); Or. Rev. Stat.
§ 662.040 (1999); Pa. Stat. Ann. tit. 43,
§ 206d (Purdon 1999); R.I. Gen. Laws
§ 28-10-2 (1999); Utah Code Ann.
§ 34-19-2 (1996); Wash. Rev. Code Ann.
§ 49.32.011 (1999); Wis. Stat. Ann.
§ 103.56. (West 1999); Wyo. Stat. Ann.
§ 27-7-103 (1999).
n196 In 1947, some members of Congress were concerned that creation of federal
jurisdiction to enforce labor agreements under proposed
§ 301 of the LMRA would adversely limit the power of state courts in violent or
dangerous strikes. The following exchange in the Senate shows that Congress did
not interfere with this jurisdiction:
"Mr. President, there is nothing whatever in the now-being-considered amendment
which takes away from the State Courts all the present rights of the State
courts to adjudicate the rights between parties in relation to labor
agreements. The amendment merely says that the Federal courts shall have
jurisdiction. It does not attempt to take away the jurisdiction of the State
courts, and the mere fact that the Senator and I disagree does not change the
effect of the amendment."
"But it authorizes the employers to bring suit in the Federal courts, if they so
"That is correct. That is all it does. It takes away no jurisdiction of the
92 Cong. Rec. 5708 (1946).
n197 See, e.g.,
Youngdahl v. Rainfair, 355 U.S. 131 (1957). Approximately 30 female workers went on strike to compel their employer to
recognize their union. See
id. at 132. When the company continued operations with replacements, strikers set nails on
the parking lot, followed the plant manager home and shouted insults at him,
and shouted insults at replacement workers, causing them to be afraid and
id. at 132-33. This resulted in a state court injunction that prohibited
"violence, coercion and intimidation" and more generally
"picketing and patrolling" in front of the factory.
Id. at 136 n.4. The Supreme Court upheld that part of the injunction prohibiting violence and
intimidation, reasoning that the NLRA had no preemptive effect where
"a court is justified in finding that violence is imminent."
Id. at 139. But the Court reasoned that the local court here
"entered the preempted domain of the National Labor Relations Board insofar as
it enjoined peaceful picketing by strikers."
Id. at 211.
Allen-Bradley Local v. Wisconsin Bd., 315 U.S. 740, 749 (1942), the Court recognized a state's
"historic powers over such traditionally local matters as public safety and
order and the use of streets and highways" as a sufficient interest to enjoin mass picketing, obstruction of roads, and
picketing of homes. Id. See also
United Aircraft Corp. v. Machinists Dist. Lodge 91, Lodge 1746, 285 A.2d 330 (Ct. 1972);
Miss. Gulf Coast Bldg. and Constr. Trades Council v. Brown & Root, 417 So. 2d 564 (Miss. 1982);
PTA Sales, Inc. v. Retail Clerks Local No. 462, 96 N.M. 581 (1981);
Altemose Constr. Co. Building & Trades Council, 449 Pa. 194 (1972).
Carpenters & Joiners Union of Am., Local No. 213 v. Ritter's Cafe, 315 U.S. 722 (1942) (involving peaceful and truthful informational picketing; nevertheless, the
Court upheld an injunction against this activity). When a union disputed
Ritter's use of nonunion labor on a construction job, it picketed that site and
Ritter's cafe, a mile and a half away. This caused patrons to boycott, and cafe
workers to strike. A Texas court enjoined picketing at the cafe, citing the
state's antitrust law. The Court approved this action, holding that
"the Constitution does not forbid Texas to draw the line which has been drawn
Id. at 728. The Court reasoned:
It is true that by peaceful picketing workingmen communicate their grievances.
As a means of communicating the facts of a labor dispute peaceful picketing may
be a phase of the constitutional right of free utterance. But recognition of
peaceful picketing as an exercise of free speech does not imply that the states
must be without power to confine the sphere of communication to that directly
related to the dispute.
Id. at 727-28.
There was also peaceful picketing in
Hughes v. Superior Court of California for Contra Costa County, 339 U.S. 460 (1950), but the Court upheld an injunction of this protest. A California court fined
and imprisoned protesters affiliated with Progressive Citizens of America, who
continued to picket a grocery store with signs stating,
"Lucky Won't Hire Negro Clerks in Proportion to Negro Trade--Don't Patronize," after the group's consumer appeal was enjoined. In reasoning that seems dated,
the Court stated a broad basis for upholding injunctions in workplace disputes
that involve issues of workplace diversity:
To deny California the right to ban picketing in the circumstances in this
case would mean that there could be no prohibition of the pressure of picketing
to secure proportional employment on ancestral grounds of Hungarians in
Cleveland, of Poles in Buffalo, of Germans in Milwaukee, of Portuguese in New
Bedford, of Mexicans in San Antonio, of the numerous minority groups in New
York, and so on through the whole gamut of racial and religious concentrations
in various cities. States may well believe that such constitutional sheltering
would inevitably encourage use of picketing to compel employment on the basis
of racial discrimination. In disallowing such picketing States may act under
the belief that otherwise community tensions and conflicts would be
Id. at 464.
For a current perspective that criticizes a similar kind of injunction, see
Avis Rent-A-Car System v. Aguilar, 120 S. Ct. 2029 (2000). In dissenting, Justice Thomas said he would grant certiorari
"to address the troubling First Amendment issues raised by this injunction.
Attaching liability to the utterance of words in the workplace is likely
invalid for the simple reason that this speech is fully protected speech."
Id. at 2031.
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498-99 (1949) (upholding an injunction against peaceful picketing with union placards that
informed the public that this ice supplier dealt with nonunion peddlers). The
Court found that Missouri's interest in effectuating its antitrust laws through
injunction outweighed the union's claim of free speech, noting:
"To exalt all labor union conduct in restraint of trade above all state control
would greatly reduce the traditional powers of states over their domestic
Id. at 497.
n199 John A. Ackerman, The Impact of the Coal Strike of 1977-1978,
32 Indus. & Lab. Rel. Rev. 175, 176 (1979).
n200 See 79 Cong. Rec. 7660 (daily ed. May 16, 1935). During consideration of the
Wagner Act, Sen. Walsh stated,
"All the bill proposes to do is to escort [employee representatives] to the door
of their employer....What happens behind those doors is not inquired into, and
the bill does not seek to inquire into it."
n201 Sen. Robert Wagner, architect of the NLRA, believed,
"The primary requirement for cooperation is that employers and employees should
possess equality of bargaining power." 78 Cong. Rec. 3679 (1934), reprinted in Legislative History, supra note 6, at
20. Twelve years later, his Republican counterpart, Sen. Robert Taft, stated
the same view:
It seems to me that our aim should be to get back to the point where, when an
employer meets with his employees, they have substantially equal bargaining
power, so that neither side feels that it can make an unreasonable demand and
get away with.
2 LMRA Legislative History, supra note 19, at 1005-06.
NLRB v. Insurance Agents' Int'l Union, 361 U.S. 477, 488-89 (1960). Justice William Brennan explained:
The presence of economic weapons in reserve, and their actual exercise on
occasion by the parties, is part and parcel of the system that the Wagner and
Taft-Hartley Acts have recognized. Abstract logical analysis might find
inconsistency between the command of the statute to negotiate toward an
agreement in good faith and the legitimacy of the use of economic weapons,
frequently having the most serious effect upon individual workers and
productive enterprises, to induce one party to come to the terms desired by the
other. But the truth of the matter is that at the present statutory stage of
our national labor relations policy, the two factors--necessity for good-faith
bargaining between parties, and the availability of economic pressure devices
to each to make the other party incline to agree on one's terms--exist side by
n203 See Labor Management Relations (Taft-Hartley) Act of 1947, Pub. L. No. 101, 61
Stat. 136 (1947).
29 U.S.C. § 176 (1994) (conferring authority on the President to appoint this board
"to inquire into the issues involved in the dispute and to make a written report
to him within such time as he shall prescribe"). The only limitation for appointing a board is whether
"in the opinion of the President of the United States, a threatened or actual
strike or lockout affecting an entire industry or a substantial part thereof
engaged in trade, commerce, transportation, transmission, or communication
among the several States or with foreign nations, or engaged in the production
of goods for commerce, will, if permitted to occur or to continue, imperil the
national health or safety." Id. Congress intended to mobilize public opinion at this point when it
required that the report
"include a statement of the facts with respect to the dispute, including each
party's statement of its position...[and to make this] available to the public." Id. To provide the parties some freedom to continue their negotiation,
Congress stated that the report
"shall not contain any recommendations." Id.
29 U.S.C. § 176(a) (1994).
29 U.S.C. § 178 (1994). The Attorney General must show that a threatened or actual strike or
"an entire industry or a substantial part thereof engaged in trade, commerce,
transportation, transmission, or communication among the several States or with
foreign nations, or engaged in the production of goods for commerce." Id. The Attorney General must also show that if the work stoppage is
"permitted to occur or to continue, it will imperil the national health or
29 U.S.C. § 178 (1994). This provision expressly provides federal jurisdiction, and allows for
an injunction if the court:
...finds that such threatened or actual strike or lockout-
(i) affects an entire industry or a substantial part thereof engaged in trade,
commerce, transportation, transmission, or communication among the several
States or with foreign nations, or engaged in the production of goods for
(ii) if permitted to occur or to continue, will imperil the national health or
Congress also gave courts authority to fashion an injunction
"as may be appropriate." Id.
29 U.S.C. § 179(a) (1994) ("Iit shall be the duty of the parties to the labor dispute giving rise to such
order to make every effort to adjust and settle their differences, with the
assistance of the FMCS....Neither party shall be under any duty to accept, in
whole or in part, any proposal of settlement made by the FMCS.").
29 U.S.C. § 179(b) (1994).
n210 See id.
29 U.S.C. § 180 (1994). The 80-day limit for an injunction is the product of a 60-day period
that the law gives the parties until the board of inquiry reports again to the
President, 15 days for the NLRB to conduct an election, and five days for the
Board to certify the results to the President. See
29 U.S.C. § 179(b) (1994).
n212 See S. Rep. No. 105, 80th Cong., 1st Sess. at 15, reprinted in 1 LMRA
Legislative History, supra note 19:
"In most instances the force of public opinion should make itself sufficiently
felt in the 80-day period [during which the strike is enjoined] to bring about
a peaceful termination of the controversy." Id.
29 U.S.C. § 180 (1994).
n214 See H.R. Minority Rep. No. 245 on H.R. 3020, 80th Cong., 1st Sess., at 102,
reprinted in 1 LMRA Legislative History, supra note 19, at 393.
n215 See id. The Report worried,
"This term is not defined, and could conceivably be broadened to a point of
being all-inclusive. There is no rule, or yardstick, provided for the President
to guide him in his determination as to whether or not a 'substantial
curtailment' of interstate or foreign commerce has occurred or is about to
n218 See the colloquy involving Representatives Kennedy and Owens at 93 Cong. Rec.
"I believe that this country should certainly be in a position to combat a
strike that affects the health and safety of the people...."
"Will not the gentleman admit that we have a third word in there? It is
'interest.' Could we not better use the word 'welfare' instead of 'interest,'
because the word 'welfare' occurs in the Constitution? It is just as broad as
the word 'interest' and more practical."
"The proposal embraces two separate things, health and safety. Because the
remedy is drastic these two, in my opinion, are sufficient. I believe we should
apply this remedy when the strike affects health or safety, but not the welfare
and interest, which may mean anything. I would not interfere in an automobile
strike because while perhaps that affects national interest, it does not affect
health and safety."
"Does not the gentleman agree that 'welfare' is the stronger and in line with
the President's idea?"
"No. Both 'welfare' and 'interest' are too indefinite. They could cover
anything. I would not have the law apply except in cases where the strike
affected health and safety."
n219 See H.R. Minority Rep. No. 245 on H.R. 3020, 80th Cong., 1st Sess., at 102,
reprinted in 1 LMRA Legislative History, supra note 19, at 395.
n220 See id. at 396-97 ("By virtue of this last provision, these sections would do nothing more than
promote ill will when it is extremely necessary that the parties meet with open
minds, and an honest intent to settle the issues as quickly...as possible.").
n221 Id. at 394 ("The proposed bill would in effect have what it considers to be the most
important cases in the country going before a board composed of people with no
background or experience in the field of industrial relations.").
n222 See id. ("We have the highest respect for the present chief justice of the United States
circuit court of appeals, but...we believe that industrial relations has become
a highly complex and technical subject requiring people well-versed in the
n223 See id. at 396-97. In so many words, the law provided for compulsory
arbitration. This violated the NLRA's premise of removing government from the
substantive aspects of labor-management negotiations.
n224 See id. at 392.
n225 Id. at 396.
n226 S. Minority Rep. No. 105, Pt. 2, on S. 1126, 80th Cong., 1st Sess., at 16,
reprinted in 1 LMRA Legislative History, supra note 19, at 478.
n230 See 93 Cong. Rec. 3594, reprinted in 1 LMRA Legislative History, supra note
19, at 710, stating:
Labor has but one weapon in its constant fight for a decent share of the
fruits of its toil--it is the right to strike....Yet with tongue in cheek you
would restore in one fell swoop the most evil chapter in the story of
industrial relations by placing the hated antilabor injunction in the hands of
industrialists who will not hesitate to use it to pin back the ears of any man
who will dare to speak out against injustice in a factory or shop. You say
these men and women should not strike--they should bargain and bargain and
bargain interminably--all the while prices climb and climb and the struggle for
food and clothing becomes more and more desperate.
n231 See Edwin Witte, The Federal Anti-Injunction Act,
16 Minn. L. Rev. 638 (1932).
id. at 652.
id. at 651-52.
n234 See id.
Id. at 657.
n238 See Robert Dishman, The Public Interest in Emergency Labor Disputes, 45 Am.
Pol. Sci. Rev. 1100, 1109 (1951) (observing that
"in a number of disputes, the board of inquiry has been forced to hurry its
investigation in order to report to the President in time for him to prevent
the strike or have it called off at the earliest practicable moment").
n239 See Comment, Developments in the Law: The Taft-Hartley Act,
64 Harv. L. Rev. 781, 849 (1951), commenting:
In those cases where the board of inquiry was appointed before the projected
strike date, the parties often ceased negotiating until the injunction was
issued. Efforts of the Federal Mediation and Conciliation Service to bring
about an eleventh-hour resolution of a disagreement would be more effective if
the parties did not know in advance whether or not the Government would allow a
strike to materialize.
Id. The law was premised on an assumption that genuine bargaining would occur
while the injunction was in effect--that is, during the cooling-off period. Id.
To the contrary, however,
"The breakdown of negotiations in several of the...instances in which the
President invoked the national emergency sections, indicates that this
assumption may not be wellfounded; strikes have sometimes been delayed, but
seldom avoided." Id.
n240 See id. (observing that
"balloting on management's final offer appears to serve no useful purpose. The
votes have been overwhelmingly against acceptance; the West Coast CIO
longshoremen refused even to participate").
n241 See U.S. Dep't of Labor, National Emergency Disputes Under the Taft-Hartley
Act, 1947-1977, Report 542 (1978), App. A at 5.
n242 Executive orders and federal decisions are referenced by numbered entries in
1: Exec. Order No. 9934,
13 Fed. Reg. 1259 (Mar. 5, 1948)
United States v. Carbide and Carbons Chem. Corp., 21 L.R.R.M. 2525 (E.D. Tenn. 1948)
2: Exec. Order No. 9934A,
13 Fed. Reg. 1375 (Mar. 15, 1948)
3: Exec. Order No. 9939,
13 Fed. Reg. 1579 (Mar. 23, 1948)
United States v. International Union, United Mine Workers of Am., 77 F. Supp. 563 (D.D.C 1948)
4: Exec. Order No. 9959,
13 Fed. Reg. 2707 (May 18, 1948)
5: Exec. Order No. 9964,
13 Fed. Reg. 3009 (June 3, 1948)
United States v. International Longshoremen's Ass'n, 78 F. Supp. 710 (N.D. Cal. 1948)
6: Exec. Order No. 9970,
13 Fed. Reg. 3333 (June 19, 1948)
7: Exec. Order No. 9987,
13 Fed. Reg. 4779 (Aug. 17, 1948)
United States v. National Maritime Union, 22 Lab. Rel. Rep. (BNA) 2275 (S.D.N.Y. 1948)
8: Exec. Order No. 10106,
15 Fed. Reg. 649 (Feb. 6, 1950)
United States v. International Union, United Mine Workers of Am., 89 F. Supp. 187 (D.D.C. 1950)
9: Exec. Order No. 10283,
16 Fed. Reg. 8873 (Aug. 30, 1951)
10: Exec. Order No. 10417,
17 Fed. Reg. 10981 (Dec. 3, 1952)
United States v. American Locomotive Co., 109 F. Supp. 78 (W.D.N.Y. 1952)
11: Exec. Order No. 10490,
18 Fed. Reg. 6279 (Oct. 1, 1953)
United States v. International Longshoremen's Ass'n, 116 F. Supp. 255 (S.D.N.Y. 1953)
12: Exec. Order No. 10542,
19 Fed. Reg. 4117 (July 6, 1954)
13: Exec. Order No. 10543,
19 Fed. Reg. 4117 (July 6, 1954)
14: Exec. Order No. 10689,
21 Fed. Reg. 4117 (July 6, 1954)
15: Exec. Order No. 10710,
22 Fed. Reg. 3405 (May 14, 1957)
16: Exec. Order No. 10842,
24 Fed. Reg. 8249 (Oct. 6, 1959)
United States v. International Longshoremen's Ass'n, 177 F. Supp. 621 (S.D.N.Y. 1959)
17: Exec. Order No. 10843,
24 Fed. Reg. 8289 (Oct. 9, 1959),
United States v. United Steelworkers of Am., 178 F. Supp. 297 (W.D. Pa. 1959)
18: Exec. Order No. 10949,
26 Fed. Reg. 5731 (June 26, 1961)
United States v. National Maritime Union, 196 F. Supp. 374 (S.D.N.Y. 1961)
19: Exec. Order No. 11013,
27 Fed. Reg. 3373 (Apr. 7, 1962)
20: Exec. Order No. 11025,
27 Fed. Reg. 5467 (June 7, 1962) and Exec. Order No. 11029,
27 Fed. Reg. 5699 (June 13, 1962) United States v. International Ass'n of Machinists, Civil No.
62 C 662 (E.D.N.Y. 1962)
21: Exec. Order No. 11054,
27 Fed. Reg. 9695 (Oct. 1, 1962)
22: Exec. Order No. 11068,
27 Fed. Reg. 11793 (Nov. 28, 1962) United States v. Lockheed Aircraft Corp., Civil No. 52-1575
(S.D. Cal. 1962)
23: Exec. Order No. 11078,
27 Fed. Reg. 629 (Jan. 23, 1963)
United States v. Boeing Co., 215 F. Supp. 821 (W.D. Wash. 1963)
24: Exec. Order No. 11181,
29 Fed. Reg. 13557 (Sept. 30, 1964)
25: Exec. Order No. 11314,
31 Fed. Reg. 13419 (Oct. 17, 1966) United States v. General Elec. Co., Civil No. 3350 (S.D. Ohio
26: Exec. Order No. 11321,
31 Fed. Reg. 16301 (Dec. 19, 1966)
United States v. Union Carbide Corp., 265 F. Supp. 756 (D.D.C. 1966)
27: Exec. Order No. 11329,
32 Fed. Reg. 3811 (Mar. 2, 1967)
28: Exec. Order No. 11344,
32 Fed. Reg. 6173 (Apr. 15, 1967)
29: Exec. Order No. 11431,
33 Fed. Reg. 14697 (Sept. 30, 1968)
United States v. International Longshoremen's Ass'n, 293 F. Supp. 97 (S.D.N.Y. 1968)
& 31: Exec. Order No. 11621,
36 Fed. Reg. 19435 (Oct. 4, 1971)
United States v. International Longshoremen's Ass'n, AFL-CIO, 337 F. Supp. 381 (S.D.N.Y. 1971)
32: Exec. Order No. 12042,
43 Fed. Reg. 9269 (Mar. 6, 1978)
United States v. United Mine Workers of Am., 1978 WL 1582 and
97 L.R.R.M. (BNA) 3176 (D.D.C. 1978).
United States v. United Steelworkers of Am., CIO, 202 F.2d 132, 134 (2d. Cir. 1953).
id. at 135.
n245 See id.
n246 See id.
United States v. American Locomotive Co., 109 F. Supp. 78, 79, 87 (W.D.N.Y. 1952).
id. at 85 (referring to the Union's citations to
Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803);
McCulloch v. State of Maryland, 4 Wheat. 316, 4 L. Ed. 579 (1819);
National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949)).
n249 See id. at 85. The union contended that the Taft-Hartley Act improperly vested
federal district courts with jurisdiction over
"administrative matters," and
"thus exceeded the restriction that the court is limited to cases and
controversies." Id. The union also maintained that the case and controversy requirement for
federal jurisdiction means that a
"controversy is definite and concrete and touches on the legal relations of the
parties having a legal interest." Id.
United Steelworkers, 202 F.2d at 139.
Federal Radio Comm'n v. General Elec., 281 U.S. 464, 467 (1930).
United States v. United Steelworkers of Am., 202 F.2d 132, 136 (2d Cir. 1953).
n253 See id.
n254 See id.
United States v. American Locomotive Co., 109 F. Supp. 78, 86 (W.D.N.Y. 1952). By exaggerating its conclusion, the court appeared to lack objectivity:
"The Union asserts that the emergency injunction provisions apply only to
strikes within the industry, i.e., the Dunkirk plant. If that were true the
strike would not affect an entire industry or a substantial part thereof. Were
that construction to be followed the efficacy of the Act would practically be
281 U.S. at 467.
Id. at 468. The Court explained:
But this court cannot be invested with jurisdiction of that character, whether
for purposes of review or otherwise. It was brought into being by the judiciary
article of the Constitution, is invested with judicial power only, and can have
no jurisdiction other than of cases and controversies falling within the
classes enumerated in that article. It cannot give decisions which are merely
advisory; nor can it exercise or participate in the exercise of functions which
are essentially legislative or administrative.
Id. at 469.
American Locomotive Co., 109 F. Supp. at 82. This is clearly revealed in the district court's statement:
"While technically not at war, existing conditions in Korea are tantamount to
war." Id. Given that premise, there was little to stop the court from concluding
"Board of Inquiry correctly found that the labor dispute in this plant is
immediately and seriously delaying the production of equipment and of
fissionable material essential to the making of atomic weapons for the national
defense." Id. The court papered-over the union's constitutional arguments when it
"The Taft-Hartley Act definitely has attempted to avoid...abuses through the
Board of Inquiry; the action of the President and the Attorney General followed
by a court hearing; opportunity for adjustment efforts after an injunction has
been granted; reconvening of the Board of Inquiry; report to the President and
a secret ballot of each employee. Seemingly a complete safeguard is thrown
around the rights of the parties." Id.
United States v. United Steelworkers, 271 F.2d 676 (3d Cir. 1959).
id. at 683.
n262 See id. ("The old law of the injunction in the labor dispute, to the extent prescribed,
seems to have been returned by Congress to at least part of its former standing
and we are compelled to adhere to the posture which Congress has placed upon it.").
n263 See id. ("Historically injunctions in labor disputes dealt with the status of groups,
sometimes large groups, of employees. Such decrees may perhaps be described,
not entirely inaptly, as 'status' judgments. Groups of employees were ordered
to return to work or face contempt proceedings.").
n264 See id. The court concluded,
"When a court enters a status judgment such as that at bar, in our opinion it
acts judicially and not legislatively." Id.
n265 See, e.g.,
Brown v. Retail Salesmen's Union, 89 F. Supp. 207 (N.D. Cal. 1950);
Douds v. Teamsters Local 24368, United Wire and Metal Workers, 86 F. Supp. 542 (S.D.N.Y. 1949).
United States v. United Steelworkers, 271 F.2d 676, 683 (3d Cir. 1959).
293 F. Supp. 97, 99-102 (S.D.N.Y. 1967).
n268 The court cited, for example, two very short affidavits when it found that the
"will have an adverse affect upon the Nation's balance of payments....(Okun
affidavit, pp. 1, 2; Fowler affidavit, P.7)."
Id. at 100.
n269 For example, the court estimated the impact of the strike on the nation's
balance of payments as a
"loss of 1.2 billion dollars at annual rates." Id. The court also found that
"[the strike] would prevent the handling, storage, and transportation of
merchandise normally entering or leaving the ports of the strike which ports in
1967 handled approximately 84% of the total tons exported or imported in the
ocean-going foreign trade of the United States in that year."
Id. at 99. This statistic was misleading because it implied that failure to enjoin the
strike would result in a total loss of the ports' 84 % share in export-import
id. at 103.
n271 See id.
n272 See id.
n273 See id.
United Steelworkers of Am. v. United States, 361 U.S. 39, 70 (1959) (Douglas, J., dissenting).
Id. at 70-71.
270 F. Supp. 665 (D. Conn. 1967). A similar problem appears in
United States v. Union Carbide Corp., 265 F. Supp. 756 (D.D.C. 1966).
United States v. Avco Corp., 270 F. Supp. 655 (D. Conn. 1967). One of the affected plants was the sole producer of the T-53 aircraft engine,
which powered Huey helicopters that ferried U.S. troops into combat.
Avco Corp., 270 F. Supp. at 669. The engine was also used for the OV-1 (MOHAWK), an airplane that was used
constantly for critical reconnaissance and surveillance missions. See id.
id. at 667.
id. at 667-68.
id. at 668.
id. at 667 (noting that the Board held a hearing in Stratford, Connecticut, the location
of the strike, during its only day of work).
United Steelworkers of Am. v. United States, 361 U.S. at 41 ("We do not believe that Congress in passing the statute intended that the
issuance of injunctions should depend upon judicial inquiries of this
nature.... Congress carefully surrounded the injunction proceedings with
detailed procedural devices and limitations including...the public report of a
board of inquiry.").
n283 In so many words, the decision said that the President's request will always
The direct connection between the Avco strike and the mortal peril in which
this Country finds itself in Vietnam and Southeast Asia is all too obvious.
Production of military aircraft engines and parts at Avco must continue without
a moment's interruption. The President of the United States has declared that
the national safety requires it. This Court has ordered it.
United States v. Avco Corp., 270 F. Supp. 665, 671 (D. Conn. 1967).
United States v. Union Carbide Corp., 265 F. Supp. 756, 758-59 (D.D.C. 1966) (finding that a national emergency existed after a lengthy strike by workers
of the only supplier of a high temperature liner for fighter jet engines had
nearly depleted this critical resource).
Avco Corp., 270 F. Supp. at 670 (estimating the time needed to find substitute suppliers).
246 F. Supp. 849 (S.D.N.Y. 1964). As with the United Mine Workers and United Steelworkers, there are several
cases with this caption, but these reflect different strikes.
Id. at 854.
id. at 854-55 (asking,
"From where do these claimed rights spring? Certainly not from the Act
itself....The granting of a 'hearing' is within the sound discretion of the
Board. The defendant unions are not legally provided with a right to a
'hearing' before the Board." The court continued by noting that the law
"expressly provides that the Board 'shall not make any recommendations,' but
rather shall limit its report to a statement of the facts and positions of the
parties with respect to the dispute."). Yet, in the Author's view, in almost every injunction case, the hurry-up
nature of the district court proceeding resulted in the judge's uncritical
adoption of the board's facts as conclusions of law.
n289 See 93 Cong. Rec. 6860 (1947).
361 U.S. at 39. The strike affected 96 employers in one or more stages of steel production,
including mining and transport of iron ore by railroad or vessel, operation of
blast furnaces for the conversion of iron ore into pig iron, production of
steel ingots, rolling and shaping of steel ingots into various shapes and forms
of steel products, and fabrication of finished products. See
United States v. United Steelworkers of Am., 271 F.2d 676 (3d Cir. 1959).
United States v. United Steelworkers of Am., 178 F. Supp. 297 (W.D. Pa. 1959). The strike shut down 85% of the nation's total steel production. Steel
inventories dropped from 24,800,000 tons at the start of the strike to
10,000,000 tons. See
id. at 300.
id. at 299.
United Steelworkers of Am., 361 U.S. at 39, 41.
id. at 42.
n295 See id.
n296 See id. The injunction was based on findings of fact showing that the strike
affected top priority military missile programs, NASA projects in general and
specifically the Mercury program, naval shipbuilding programs, and export of
products to NATO allies. See id.
n297 See id., when the majority stated:
"We need not resolve this question, for we think the judgment below is amply
supported on the ground that the strike imperils the national safety."
Id. at 42.
id. at 71 (Douglas, J., dissenting).
n299 Id. (Douglas, J., dissenting). Douglas' point was that
"no finding was made by the District Court on the feasibility of a limited
reopening of the steel mills."
Id. at 76 (Douglas, J., dissenting).
Id. at 71-72 (Douglas, J., dissenting). In this vein, Douglas amplified his criticism:
"Plainly there is authority in the District Court to protect the national
'safety' by issuance of an injunction. But there is nothing in this record to
sustain the conclusion that it is necessary to send 500,000 men back to work to
give the defense department all the steel it needs for the Nation's 'safety.'"
Id. at 73 (Douglas, J., dissenting).
n301 See id. (Douglas, J., dissenting). Justice Douglas remarked:
If more men are sent back to work than are necessary to fill the defense needs
of the country other objectives are being served than those specified in the
statute. What are these other objectives? What right do courts have in serving
them? What authority do we have to place the great weight of this injunction on
the backs of labor, when the great bulk of those affected by it have nothing to
do with production of goods necessary for the Nation's 'safety' in the military
sense of that word?
Id. (Douglas, J., dissenting).
Id. at 73-74 (Douglas, J., dissenting).
id. at 74 (Douglas, J., dissenting) ("Labor goes back to work under the present injunction on terms dictated by the
industry, not on terms that have been found to be fair to labor and to
industry. The steel industry exploits a tremendous advantage.").
Id. at 65 (Douglas, J., dissenting).
id. at 65 (Douglas, J., dissenting). He recalled that Congress had a nationwide coal
industry in mind when it enacted this provision. See id. (Douglas, J.,
dissenting). Douglas also recalled that some Senators wanted this strike
control to apply broadly
"to 'utilities and key Nationwide industries' in order to protect the 'public
welfare.'" Id. (Douglas, J., dissenting) (citing 93 Cong. Rec. A1035). The Senate
resisted this effort, however, when it adopted a much more stringent standard
"national health or safety," and as Douglas also noted, this standard prevailed in the Conference.
Id. at 65-66 (Douglas, J., dissenting).
n306 This occurred in
United States v. National Marine Engineers' Beneficial Ass'n, 294 F.2d 385 (2d Cir. 1961). The district court granted the government's petition to enjoin a maritime
strike affecting almost half of the nation's merchant marine. See
id. at 393. The parties sharply disputed whether continuance of the strike would imperil
the national health or safety. See
id. at 386. The government urged a
"broadly inclusive interpretation of these words of the statute whereas the
appellant unions claimed that 'health' is limited to the physical health of the
populace as distinguished from the general well-being of the nation and its
economy, and that 'safety' is limited to the national defense."
Id. at 386-87. Following the Supreme Court's resolution of this argument in Steelworkers, the
"We find it unnecessary to resolve the issue," even though
"Congressional clarification of so important a matter would surely be helpful."
Id. at 387. This was because
"a material depletion of petroleum supply would imperil the national health and
safety even on the most restricted interpretation of those terms." Id. In a passage that typified the swift race to judgment by Taft-Hartley
courts, the Second Circuit said:
"Without going into burdensome detail, it is evident that a supply of petroleum
products adequate for the production and transportation of foods and drugs, for
heating, for the making of electrical energy, and for many other purposes, is
essential to the physical health of the people." Id. (emphasis added).
335 F. Supp. 501 (N.D. Ill. 1971).
id. at 507.
id. at 506. In the opinion, Judge Marovitz noted that the
"words 'imperil' and 'national health or safety' when being used in a labor
context are terms of art of a most precise and limited meaning. The Government
expends a great deal of time and effort in its attempt to engraft an economic
context on the statutory terms of 'national health or safety.'" Id.
n310 See id. ("In conjuring up every conceivable economic argument as grounds for this Court's
jurisdiction to enjoin this strike the Government is asking us to do what no
other Court has ever done before--to enjoin the strike of a single local on a
purely economic basis totally devoid of any threat to the national defense.").
n311 See Judge Marovitz's allusive remark,
"This is not the first attempt by the Government to give 'national health' a
fiscal rather than a physical connotation." Id. While he did not openly condemn the Steelworkers Court, Judge Marovitz
clearly implied that the majority erred in failing to reject this theory of
Id. at 509.
304 F.2d 437 (9th Cir. 1962).
id. at 439.
id. at 444-45.
id. at 438.
id. at 438-40. Several unions, each representing different maritime occupations, were
involved in this labor dispute--the Marine Firemen's Union; Sailors' Union of
the Pacific; Marine Cooks and Stewards; Sailors' Union of the Pacific; Pacific
Coast Marine, Firemen, Oilers, and Watertenders; and Wipers Association. See
id. at 437.
id. at 444-45. The Ninth Circuit reasoned,
"The statutory limitation upon the duration of injunctions issued under the Act
is spelled out in words of command. Only such production as may be compelled by
injunctive sanctions limited to eighty days, may be achieved either under the
injunction or any order supplemental thereto."
Id. at 443. The court noted that it is
"immaterial that due to the uniqueness of the industry or prevailing economic
conditions this may be less than full production. Congress has not provided the
courts with an elastic jurisdiction to meet such special problems. It has
chosen to draw the line at eighty days." Id.
n320 See U.S. Dep't of Labor, Collective Bargaining in the Basic Steel Industry: A
Study of the Public Interest and the Role of Government (Jan. 1961)
[hereinafter Basic Steel Industry Study]; U.S. Dep't of Labor, Impact of
Longshore Strikes on the National Economy (Jan. 1970) [hereinafter Longshore
Basic Steel Industry Study, supra note 320, at 48.
n322 See generally id.
n323 Id. at 48. The Report stated:
Too often the losses of production, employment, and wages are evaluated in a
context which assumes that there would have been continuous high-level
operation had there been no strike. Such losses, as noted previously, if they
are to be placed in a realistic focus, must be weighed over a time span that
encompasses a period prior to the strike, the period of the strike, and a
period long enough following the strike to permit restoration of inventory.
Id. The report also noted that the impact of strikes must account for
"a context which recognizes the extent to which industry is subject to seasonal
and cyclical forces, the fact that American industry generally operates well
below capacity and the fact of inventory accumulation at several stages last
much longer...than is generally believed before the economy can be seriously
hurt." Id. at 49. History in steel indicates that once strikes begin to be seriously
felt over wide segments of the economy, pressure from those affected will in
most instances bring about a settlement. Id.
Basic Steel Industry Study, supra note 320, at 10.
id. at 207.
n327 See id. (stating that
"if Government provides the parties with an alternative road to settlement,
experience demonstrates that the parties will almost inevitably turn to the
alternative rather than settle themselves").
id. at 224.
n330 Id. at 48.
n331 Id. at 17.
Basic Steel Industry Study, supra note 320, at 48.
United Steelworkers of America v. U.S., 361 U.S. 39, 300 (1959).
Basic Steel Industry Study, supra note 320, at 6.
United Steelworkers of Am., 361 U.S. at 301.
n336 See id. at 41.
Basic Steel Industry Study, supra note 320, at 222.
United States v. International Longshoremen's Ass'n., 293 F. Supp, 97, 104 (S.D.N.Y. 1964).
n339 See Longshore Study, supra note 320, at 4.
United States v. International Longshoremen's Ass'n., 246 F. Supp. 849, 852 (S.D.N.Y. 1964).
n341 See Longshore Study, supra note 320, at 5.
United States v. International Longshoremen's Ass'n, 116 F. Supp. 255, 258-59 (S.D.N.Y. 1953).
n343 See Longshore Study, supra note 320, at 6.
n344 See Longshore Study, supra note 320, at 4 (concluding that these strikes
"had no visible impact on the economy as a whole," and
"did not significantly affect the national well-being").
n345 See id. at 5 (stating
"there is evidence in the data as well as statements from companies deeply
involved in foreign trade that there is both activity in anticipation of the
strike and a great deal of makeup after the ports open").
n346 See, e.g., Irving Bernstein
& Hugh G. Lovell, Are Coal Strikes National Emergencies?
6 Indus. & Lab. Rel. Rev. 352, 355 (1953) (arguing that national emergency strikes
"inconvenienced millions of people and caused small numbers to suffer genuine
hardship"); Edgar L. Warren, Thirty-Six Years of National Emergency Strikes,
5 Indus. & Lab. Rel. Rev. 3, 15 (1951) ("The actual detriment to the public welfare is only a fraction of that
anticipated"); see also C. Laurence Chistenson, The Theory of the Offset Factor: The Impact
of Labor Disputes upon Coal Production,
43 Am. Econ. Rev. 513 (1955) (reporting similar results).
n347 George R. Neumann
& Melvin W. Reder, Output and Strike Activity in U.S. Manufacturing: How Large
Are the Losses?,
37 Indus. & Lab. Rel. Rev. 197, 210 (1981) (finding no strike effects in 38 out of 63 industries; however, in six
industries, they found that strikes were associated with improved economic
output and had small negative effects in nineteen other industries).
Id. at 198.
id. at 210. Neumann and Reder said that
"in a debate on the merits of legislation intending to reduce strike activity,
we believe our findings would be cited by those opposed to such legislation as
evidence that strikes had not caused serious economic losses...." Id.
n351 See supra notes 9-11.
n352 See Harry A. Millis
& Emily C. Brown, From the Wagner Act to Taft-Hartley: A Study of National Labor
Policy and Labor Relations 311-14 (1950) (reporting intent of Republicans in
Congress in regards to the Act).
n353 See id.
n354 See supra note 212.
Basic Steel Industry Study, supra note 320, at 93-94.
n356 See id. The Report observed that the union and industry retained public
relations firms to prepare advertising copy, brochures, press releases, and
public opinion polls--"all the logistical planning and accoutrements which are attached to a major
advertising and merchandising campaign." Id. at 94.
n357 See id.
n358 See id.
n359 Id. at 93-94.
n360 Id. at 94.
n361 William J. Puette, Through Jaundiced Eyes: How the Media View Organized Labor
n362 Id. at 157.
n363 See Diane E. Schmidt, Public Opinion and Media Coverage of Labor Unions, 14 J.
of Lab. Res. 151, 160 (1993).
n364 See Paul Jarley
& Sarosh Kuruvilla, American Trade Unions and Public Opinion: Can Unions Please
All of the People All of the Time?, 15 J. of Lab. Res. 97 (1994).
n365 Christopher L. Erickson
& Daniel J.B. Mitchell, Information on Strikes and Union Settlements: Patterns
of Coverage in a
"Newspaper of Record,"
49 Indus. & Lab. Rel. Rev. 395, 406 (1996).
n366 See John Maher, The Wage Pattern in the United States, 1946-1957,
15 Indus. & Lab. Rel. Rev. 3 (1961). Labor negotiations in basic industries such as steel had a
"pervasive" effect on the economy, and functioned as
"key bargains." Thus, certain negotiations--for example, the 1959 talks between the
Steelworkers and industry employers--had strong implications for setting a wage
and benefit pattern in other employment settings. See
id. at 8. Maher concluded,
"The negotiators cannot conceivably negotiate independently of one another,
since so much of the 'data' given to one industry are the variables operated
upon by negotiators in another industry." Id.
n367 See Robert M. Macdonald, Collective Bargaining in the PostWar Period,
20 Indus. & Lab. Rel. Rev. 553, 556 (1967):
The end of the Korean War and the ensuing recession of 1953-1954 marked the
finish of the comfortable economic environment in which collective bargaining
had flourished for almost a decade. As competition returned in full force to
domestic markets, many companies found themselves in serious financial
Id. at 558.
n369 Id. Aggravating matters, unions were thrown on the defensive by stagnating
membership and structural changes in employment. See id. Even then, according
to Macdonald, the composition of jobs was shifting from goods-producing to
service occupations and from blue-collar to whitecollar jobs within the
goods-producing sector. See id. In short,
"The problem of worker security was compounded by the threat of institutional
security manifested in the efforts of unions to prevent erosion of the
bargaining unit." Id. at n.3.
n370 See Arthur M. Ross, New Concepts in Wage Determination, in George W. Taylor
& Frank Pierson, New Concepts in Wage Determination 177-205 (1949).
n371 See id. at 199.
n372 See Bureau of Labor Statistics, U.S. Dep't of Labor, Bull. No. 909, Extent of
Collective Bargaining and Union Recognition 1 (1946) (reporting that 7.9
million production workers--an astonishing 69 percent of the industrial labor
market--were covered by a collective bargaining agreement in 1946).
n373 See Statistical Abstract of the United States (1958) at 786-87 tbl. 1027
(showing that the four largest steel firms produced 65% of the industry's
output: Ford, GM, and Chrysler accounted for 75% of the nation's auto output,
and Firestone, Goodyear, Goodrich, and U.S. Rubber accounted for 78% of tire
n374 See Bureau of Labor Statistics, U.S. Dep't of Labor, Bull. No. 909, Extent of
Collective Bargaining and Union Recognition (manufacturing industries) at 2
tbl. 1 (1946).
Maher, supra note 365, at 8, providing this summary:
The penalty for a failure in negotiations in steel that results in a strike
must be borne eventually by auto workers because, without continuing steel
production, the output of automobiles must cease. Managers, workers, owners,
all share interests that cut across industries.
n376 See Bureau of Labor Statistics, U.S. Dep't of Labor, Rep. No. 603, Collective
Bargaining in the Basic Steel Industry (work stoppages in the basic steel
industry, 1950-1978), at 5 tbl. 1 (May 1980). Before the 1959 injunction, about
100 strikes occurred each year: 1950 (120); 1951 (146); 1952 (105); 1953 (130);
1954 (63); 1955 (118); 1956 (107); 1957 (75); 1958 (58); 1959 (82). After the
injunction, that frequency was cut in half: 1960 (44); 1961 (39); 1962 (44);
1963 (49); 1964 (46); 1965 (70); 1966 (72); 1967 (62); 1968 (79); 1969 (68);
1970 (68); 1971 (64); 1972 (42); 1973 (35); 1974 (54); 1975 (33); 1976 (39);
1977 (52); 1978 (52).
n377 See Bureau of Labor Statistics, U.S. Dep't of Labor, Rep. No. 538, Collective
Bargaining in the Maritime Industry (work stoppages in the maritime industry,
1958-1976), at 5 tbl.1 (Aug. 1978): 1958 (22); 1959 (22); 1960 (19); 1961 (9);
1962 (17); 1963 (12); 1964 (12); 1965 (15); 1966 (8); 1967 (10); 1968 (11);
1969 (11); 1970 (8); 1971 (3); 1972 (8); 1973 (5); 1974 (7); 1975 (8); 1976
n378 See Bureau of Labor Statistics, U.S. Dep't of Labor, Rep. No. 613, Collective
Bargaining in the Longshore Industry (work stoppages in the longshore industry,
1960-1978), at 6 tbl.1 (Aug. 1980): 1960 (36); 1961 (220; 1962 (18); 1963 (22);
1964 (18); 1965 (16); 1966 (21); 1967 (28); 1968 (16); 1969 (20); 1970 (13);
1971 (14); 1972 (18); 1973 (7); 1974 (13); 1975 (9); 1976 (10); 1977 (4); 1978
n379 See, e.g., Trevor Bain, Banking the Furnace: Restructuring the Steel Industry
in Eight Countries (1992) (documenting over-capacity and its adverse employment
effects in steel throughout the industrialized world dating to the 1960s);
Clifford B. Donn, Concession Bargaining in the Ocean-Going Maritime Industry,
42 Indus. & Lab. Rel. Rev. 189 (1989) (concluding that maritime bargaining concessions have been so deep because of
intense foreign competition and U.S. policies failing to protect the industry).
n380 See U.S. Dep't of Labor, Collective Bargaining in the Basic Steel Industry,
supra note 275, at 222-23.
n381 See, e.g., Emergency Disputes and National Policy (Irving Bernstein et al.,
eds., 1955); Jacob Seidenberg, The Labor Injunction in New York City, 1935-1950
(1953); Comment, supra note 239, at 848-51 (1951); Benjamin Aaron
& William Levin, Labor Injunctions in Action: A Five-Year Survey in Los Angeles
39 Cal. L. Rev. 42 (1951); Ackerman, supra note 199; Robert Dishman, The Public Interest in Emergency
Labor Disputes, supra note 238; James E. Jones, Jr., Toward a Definition of
"National Emergency Dispute,"
1971 Wis. L. Rev. 700, 710 (1971 ); George W. Norris, Injunctions in Labor Disputes,
16 Marq. L. Rev. 157 (1932); Charles M. Rehmus, Emergency Strikes Revisited,
43 Indus. & Lab. Rel. Rev. 175 (1990); Peter B. Shipman, The Scope of the National Emergency Labor Injunction Law,
9 Seton Hall L. Rev. 709, 710 (1978); Witte, supra note 144; Note, Current Legislative and Judicial Restrictions on
State Labor Injunction Acts,
53 Yale L.J. 553 (1944).
n382 See supra note 204 (emphasis added).
n383 See Ackerman, supra note 199, at 187 ("The president's decision to intervene was primarily political, in the sense
that the mineworkers' continued refusal to agree to terms came to be perceived
by the press and the public as a major test of the new president's judgment and
n384 See Government Intervention in Labor Disputes Grows, Experts Say, Aviation
Daily, Sept. 24, 1998, at 518 (noting that the trend toward government
intervention in labor negotiations escalated under President Clinton).
n385 See, e.g., Bruce Ingersoll
& Bridget O'Brian, Captain Speaking: Clinton's Intervention Halts the Costly
Strike At American Airlines, Wall St. J., Nov. 23, 1993), at A1 (reporting that
President Clinton's personal intervention in flight attendants' strike at
American Airlines resulted in binding arbitration); Tony Kennedy, Clinton Aide
Is Credited in Resolving Strike, Star Trib., Sept. 14, 1998, at 1A (reporting
that union leaders and the Northwest Airlines chief negotiator say that the
labor agreement would not have been reached without intervention of President
Clinton's personal mediator and government Aarm-twisting@); Terry Maxon,
American Pilots Approve Contract, The Dallas Morning News, May 6, 1997, at 1A
(reporting that President Clinton halted pilots strike at American Airlines and
helped to bring about settlement).
n386 See, e.g., Bush Derails Strike to Protect Economy, Fort Worth Star-Telegram,
Apr. 18, 1991, at 1 (noting that President Bush signed bill to end strike by
235,000 rail workers); Labor-Management Bargaining in 1995, 119 Monthly Labor
Rev. 25 (Jan. 11, 1996) ("President Clinton appointed two emergency boards to resolve a thorny dispute at
MetroNorth Commuter Railroad in the New York City area."); Rail Talks, Pittsburgh Post-Gazette, May 19, 1996, at C2 (noting that the
"threat of a major railroad strike prompted President Clinton to name emergency
boards to investigate the dispute between a group representing dozens of
carriers, including Conrail, and their unions"); Dave Hage, Railroad Union Poised to Strike, Star Trib., Sept. 8, 1988, at 1D
(reporting that Sen. Paul Simon drafted a bill to halt a strike at the Chicago
Northwestern railroad and impose a settlement recommended earlier by a board of
arbitrators appointed by President Reagan); Randolph Heaster, Labor Scene, Kan.
City Star, May 7, 1996, at D16 (reporting that the President intervened in
labor dispute involving major railroads, including Burlington Northern Santa Fe
and six of their unions); Ann Merrill, Soo Line Labor Pact May Cut Union Ranks
by a Third, Star Trib., Dec. 7, 1994, at 1D (reporting that presidential
emergency board recommendations led to labor contract that reduced the union's
ranks by as much as one-third); Sidney C. Schaer, Panel Backs LIRR Pay Offer,
Newsday, Apr. 19, 1994, at A25 (noting that presidential emergency board issued
non-binding recommendation for settling a contract dispute between Long Island
Railroad and United Transportation Union); John Schmeltzer, Possible Amtrak
Strike Averted Until at Least Nov. 6, Chi. Trib., Oct. 28, 1997, at 3
(reporting that presidential intervention averts strike at Amtrak).
45 U.S.C. § § 151-188 (1994).
n388 See Kevin Galvin, Business Leaders Seek Presidential Intervention to End UPS
Strike, Associated Press (Aug. 7, 1997); see also David Hosansky, President
Swings and Misses at Baseball Strike, 53 Cong. Q. Wkly. Rep. 447 (Feb. 11,
1995) (noting that President Clinton personally tried to mediate a settlement
between the baseball players union and owners in early February 1995; and that
as part of his mediation, he persuaded Rep. Pat Williams (D.-Mont.), and Sen.
Edward M. Kennedy (D.-Mass.), to introduce his proposal, H.R. 870 and S. 376).
This legislation would give the president the power to establish a three-member
National Baseball Dispute Resolution Panel. In the bitter 1989 strike by the
United Mine Workers against Pittston Coal Co., President Bush had his Secretary
of Labor, Elizabeth Dole, personally intervene as a
"supermediator" to assist in settling that protracted dispute. See Sandra Livingston, UMW
Leader Praises Dole Aid in Ending Pittston Coal Strike, The Plain Dealer
(Cleveland, Ohio), Feb. 21, 1990. As a 1981 baseball players strike approached
80 days, President Reagan dispatched his Secretary of Labor, Raymond Donovan,
to mediate. See Presidents' Prerogatives, Bost. Globe, Feb. 8, 1995, at 54.
n389 See Edgar Asks Clinton to Help End UPS Strike, St. Louis Post Disp., Aug. 10,
1997, at 4D. As the strike of the nation's largest private package carrier
entered its second week, various politicians urged the President to invoke his
powers under Taft-Hartley. See id. Interestingly, all were Republicans.
Governors Jim Edgar (R.-Ill.), Terry Branstad (R.Iowa.), and George Allen
(R.-Va.) pointed to the substantial impact of the strike on their state
economies. See id. Gov. Edgar noted that UPS employed more than 23,500 people
in Illinois, with an annual payroll exceeding $ 500 million. See id. He
"As a consequence of this dispute, the nation's distribution infrastructure has
been severely impacted, along with our local economy. As this dispute continues
into the future, the wide-ranging, detrimental effects on our national and
state economies will only worsen." Id.
n390 See Eleena de Lisser, Labor: Two UPS Part-Timers, Two Different Worlds, Wall
St. J., Aug. 14, 1997, at B1 ("The issue of parttime workers reverberates across many industries. Employers
like the flexibility and generally lower benefit costs that part-timers allow.
But workers and unions sometimes slam the practice, calling it an abuse of
employees and a way around fair-labor practices."). The main issue in the strike was the union's demand that UPS convert a large
number of parttime jobs to full-time. See id.
n391 See Philip Dine, Teamsters Win Was Just That, St. Louis Post Disp., Aug. 22,
1997, at 12C ("the Teamsters-UPS settlement may well lead to a more aggressive labor movement,
if unions use their new appeal to draw in the unorganized"); Charley Hannagan, Teamsters Rally over UPS Pact Members of Many Unions Join
in March, The Post-Standard (Syracuse, N.Y.), Aug. 22, 1997, at C9 ("The strike against UPS, which forced the company to promise to create 10,000
full-time jobs out of parttime ones, was seen as a victory by members of the
labor movement"); Frank Swoboda, Labor's Win May Be Brief, Wash. Post, Aug. 20, 1997, at A01 ("For a labor movement that has been on the defensive for so many years, this
positive image was a pleasant change....The very fact that the Teamsters struck
UPS in the first place was seen by many as an act of courage.").
n392 See supra Part III.B.
n393 See id.
n394 See George R. Neumann, The Predictability of Strikes: Evidence from the Stock
33 Indus. & Lab. Rel. Rev. 525, 532 (1980).
n395 See Bureau of Labor Statistics, U.S. Dep't of Labor, Bull. No. 2070, Handbook
of Labor Statistics 412 tbl.165, col. 7 (Dec. 1980) (Union Membership as a
Proportion of the Labor Force, 1930-78, Membership Exclusive of Canada as a
Percentage of Employees in Nonagricultural Establishments).
n396 See AFL-CIO: BLS Figures Show Organizing Strategy Is Working, Organizing
Director Adams Says, Daily Lab. Rep. (BNA) No. 16, Jan. 26, 2000, at A13.
According to current Bureau of Labor Statistics figures, the number of U.S.
workers belonging to unions in 1998 grew from 16.1 million to 16.2 million. See
id. To put this in perspective, this was the first increase in membership in
the past five years. See id. More important, since the labor force grew at a
much faster rate that gains in union membership, this meant that the percentage
of union membership in the workforce actually decreased from 14.1 percent in
1997 to 13.9 percent in 1998. See id.
n397 See Linda Bell, Explaining Union Concessions in the 1980s, Fed. Res. Bank of
N.Y. Q. Rev. 44 (Summer 1989); Peter Cappelli, Plant-Level Concession
39 Indus. & Lab. Rel. Rev. 90 (1985); Audrey Freedman
& William E. Fulmer, Last Rites for Pattern Bargaining, Harv. Bus. Rev.,
Mar.-Apr. 1982, at 30; David J. Walsh, Accounting for the Proliferation of
Two-Tier Wage Settlements in the U.S. Airline Industry, 1983-1986,
42 Indus. & Lab. Rel. Rev. 50 (1988).
n398 See Work Stoppage Data, supra note 23. Annual strike activity in the 1950s and
1960s ranged from about 200 to 450: 1950 (424); 1951 (415); 1952 (470); 1953
(437); 1954 (265); 1955 (363); 1956 (287); 1957 (279); 1958 (332); 1959 (245);
1960 (222); 1961 (195); 1962 (211); 1963 (181); 1964 (246); 1965 (268); 1966
(321); 1967 (381); 1968 (392); 1969 (412); 1970 (381).
n399 See id. (showing that strike activity plummeted in the 1980s and 1990s: 1980
(187); 1981 (145); 1982 (96); 1983 (81); 1984 (62); 1985 (54); 1986 (69); 1987
(46); 1988 (40); 1989 (51); 1990 (44); 1991 (40); 1992 (35); 1993 (35); 1994
(45); 1995 (35); 1996 (37); 1997 (29); 1998 (34)).
n400 The impact of globalized trade on labor markets is examined in Robert Kuttner,
Everything for Sale: The Virtues and Limits of Markets (1997); Robert B. Reich,
The Work of Nations (1991); Lance Compa, Labor Rights and Labor Standards in
25 Law & Pol'y Int'l Bus. 165 (1993); Katherine Van Wezel Stone, Labor and the Global Economy: Four Approaches to
Transnational Labor Regulation,
16 Mich J. Int'l L. 987 (1995).
n401 See, e.g., Linda A. Mabry, Multinational Corporations and U.S. Technology
Policy: Rethinking the Concept of Corporate Nationality,
87 Geo. L.J. 563, 579 (1999) (observing that the
"movement offshore of R&D facilities by U.S.-origin firms--seen as contributing to the erosion of U.S.
preeminence in advanced technologies and a loss of vital high-wage, highskill
jobs--is also producing opposition to overseas investment"); see also Lois S. Gray
& Ronald L. Seeber, The Industry and the Unions: An Overview, in Under the Stars
15, 42-44 (Lois S. Gray
& Ronald L. Seeber eds., 1996) (discussing technological displacement of NABET
n402 See Michael H. LeRoy, The Changing Character of Strikes Involving Permanent
Striker Replacements, 1935-1990, 16 J. Lab. Res. 423 (1995).
n403 Compare employers in Taft-Hartley strikes, such as
Boeing, United States v. Boeing Co., 215 F. Supp. 821 (W.D. Wa. 1963),
General Electric, United States v. General Elec. Co., Civil No. 3350 (S.D. Ohio 1966), and Union Carbide, United States v. Union Carbide Corp., 265 F. Supp. 256 (D.D.C. 1966), and recent replacement-worker strikes at
Caterpillar, Caterpillar, Inc., 321 NLRB 1178 (1996),
International Paper, International Paper Co., 319 NLRB 1253 (1995), and the
Detroit Free Press, Detroit Newspaper Agency, d/b/a Detroit Newspapers, 326 NLRB No. 64 (1998).
n404 Descriptions of these less permanent employment relationships are found in
Richard S. Belous, The Contingent Economy: The Growth of the Temporary,
Part-Time and Subcontracted Workforce (1989); Mark Berger, Unjust Dismissal and
the Contingent Worker: Restructuring Doctrine for the Restructured Worker,
16 Yale L. & Pol'y Rev. 1 (1997); Henry S. Farber, Are Lifetime Jobs Disappearing? Job Duration in the United
States: 1973-1993 (National Bureau of Econ. Research Working Paper No. 5014,
1995); Stefanie R. Schmidt
& Shirley V. Svorny, Recent Trends in Job Security and Stability, 19 J. Lab.
Res. 647 (1998); Kenneth Swinnerton
& Howard Wial, Is Job Stability Declining in the U.S. Economy?,
48 Indus. & Lab. Rel. Rev. 293 (1995).
n405 For an illuminating analysis, see Gillian Lester, Careers and Contingency,
51 Stan. L. Rev. 73 (1998), treating
"contingent employment" as a variety of work forms such as limited hours, duration, or security. See
id. at 101. Lester reported that a very high percentage of contingent
workers--56%--describe themselves as
"involuntary" contingent. Lester notes,
"There is also a large group whose specific reasons for working in a contingent
job imply that they sought but were unable to obtain suitable employment:
'employer laid off, but rehired'; 'could only find this type of employment';
'job may lead to a permanent one.'" Id.
n406 Archibald Cox et al., Labor Law 469 (11th ed. 1991).
n407 2 The Samuel Gompers Papers: The Early Years of the American Federation of
Labor, 1887-90, at 316 (Stuart B. Kaufman ed., 1987) (quoting a news article on
Gompers's and the AFL's advocacy of an eight-hour workday in 1890:
"The eight-hour movement means higher wages for everybody, and work for all. It
means more time for selfimprovement, for pleasure, more time to spend with your
wives and families....We have no 'ists' or 'isms' in this movement....We are
all united for eight hours.").
n408 See Charles Craver, The National Labor Relations Act Must Be Revised to
Preserve Industrial Democracy,
34 Ariz. L. Rev. 397, 421 (1991) ("The Mackay Radio doctrine has been employed with greater frequency since
President Reagan decided in 1981 to terminate 11,000 air traffic controllers
who participated in an illegal strike against the federal government."); Grant M. Hayden, Some Keys to the NBA Lockout 16 Hofstra Lab.
& Employment L.J. 453, 460 (1999) ("President Reagan's replacement of striking air traffic controllers during the
PATCO dispute is widely viewed as the signal to employers to take the offensive
when it comes to work stoppages."); Daniel M. Katz et al., A Commentary on Professor Morris's Comparison of
Discrimination for Union Activity under the NLRA and RLA, 3 Employee Rts.
& Employment Pol'y J. 305, 312 (1999) ("President Reagan's take-no-prisoners approach has had repercussions beyond the
discharge and blacklisting of thousands of strikers and the destruction of
their union."); Douglas L. Leslie, Retelling the International Paper Story,
102 Yale L.J. 1897, 1906 (1993) ("My impression is that managers, who used to think that union-busting was in
some vague moral sense wrong, no longer think so. Reagan's notorious discharge
of the air traffic controllers may have set this change in motion."); Robert B. Reich, Handful of Senators Strangling Labor Bill, Plain Dealer
(Cleveland, Ohio), July 16, 1994, at 9B, available in
1994 WL 7210879 ("Since President Reagan replaced striking PATCO workers in 1981, a small but
ominously growing number of companies have locked themselves into this...route
by hiring new workers to permanently replace striking employees.").
n409 Daily Lab. Rep. (BNA) No. 53, at E-2 (Mar. 17, 1978) (statement of Secretary
of Labor Ray Marshall). In fact, President Carter's questionable use of
Taft-Hartley powers in the 1977-1978 coal strike raises questions as to whether
he intended to break a union's bargaining power. According to his own
administration, his goal in seeking an injunction was not to avert a national
emergency. Instead, the
"major goal was to use this action as a catalyst to bring about the resumption
of productive collective bargaining negotiations." Id.
Great N. Ry. Co. v. Brosseau, 286 Fed. 414, 416 (D.N.D. 1923) (observing that the
"most serious complaint that can be made against injunctions, which have become
so prominent a part in the law in dealing with strikes in the United States, is
the fact that courts have become accustomed to decide the most important
questions of fact, often involving the citizen's liberty, upon this wholly
untrustworthy class of proof").
n411 See Comment, supra note 248, at 849 (asserting that TaftHartley was designed
"limit Government intervention to delaying emergency strikes while the
psychological pressure of public opinion is brought to bear").
Northern Sec. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting).
n414 Id. at 401.
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