Spring, 2001

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).

SUMMARY:
... 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. ...

TEXT:
[*63]

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 ¹

I. Introduction

A. Context of the Public Policy Problem

When the National Labor Relations Act (NLRA) was enacted in 1935, ² Congress enabled employees to bargain collectively by providing an unabridged right to strike. ³ 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. ⁴

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. ⁵ That Act, however, was only partially successful in protecting peaceful strikes, because the individual worker remained powerless to bargain with her employer. ⁶ Moreover, without a federal right to strike, state courts--unaffected by Norris-LaGuardia--continued to enjoin strikes. ⁷ Thus, when Congress provided a right to strike in the NLRA, it carefully chose language to forewarn courts not to interfere in labor disputes. ⁸ [*65]

Sixty-five years later, the right to strike is a shadow of what Congress intended. One explanation centers on Mackay Radio v. NLRB. ⁹ There the Supreme [*66] Court stated that employers have a right to hire permanent striker replacements. ¹⁰ Many scholars see this doctrine as a negation of the right to strike. ¹¹ 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 strikes. ¹² Some observers argue that this strike-response encouraged private employers to break, rather than settle, strikes. ¹³ [*67]

A more general explanation is that the declining right to strike results from strategic union avoidance. ¹⁴ According to this view, employers provoke strikes to sever bargaining relationships with unions. ¹⁵ They defy the NLRA ¹⁶ in order to hinder employees who participate in union activities. ¹⁷

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 Act, or "LMRA") amended the NLRA in 1947, it restricted employee rights to bargain collectively. ¹⁸ The law imposed several strike controls and deterrents. ¹⁹ 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," ²⁰ and authorized the Attorney General to petition a U.S. district court to enjoin these otherwise lawful walkouts. ²¹ In permitting injunctions to last for eighty days, Congress believed a cooling-off period would promote strike settlements. ²²

We expect the reader to greet our Article with skepticism. Considering that the last 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 in which Taft-Hartley injunctions were ordered. ²³ 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 1982). ²⁴ 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. ²⁵

2. We view the PATCO thesis as facile and unrealistic. ²⁶ 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. ²⁷ 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 conditions.

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 ²⁸ and 1994, ²⁹ 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. ³⁰ We present evidence that leads us to conclude that President Clinton demurred in using Taft-Hartley powers only because public opinion strongly supported UPS strikers. ³¹ 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. ³²

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. ³³ 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. ³⁴ 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 [*71] disputes. ³⁵ These efforts at limitation, embodied in the Clayton Antitrust Act and discussed in Part II.C, ³⁶ 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. ³⁷ By the early 1930s, the American public and Congress were so inflamed by labor injunctions that a new federal law resulted. ³⁸ Part II.E discusses how the Norris-LaGuardia Act removed federal courts from labor disputes. ³⁹ Overall, this section shows that federal courts generally heeded a jurisdictional law that limited their intervention in labor disputes. ⁴⁰ This section also updates the extent to which federal and state courts enjoin strike-related conduct, apart from national emergency strikes. ⁴¹ 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. ⁴² 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 strike injunctions. ⁴³ We reach five conclusions: (1) Taft-Hartley courts have not exercised judicial powers; ⁴⁴ (2) Taft-Hartley courts have relied on unrealistic or distorted assumptions to support injunctions; ⁴⁵ (3) Taft-Hartley courts have interpreted national health to mean national inconvenience; ⁴⁶ (4) Taft-Hartley courts have given the impression of antilabor bias by granting eighty percent of government petitions for injunctions, ⁴⁷ and (5) Taft-Hartley court orders with eighty day limits have been impractical in some disputes. ⁴⁸

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. ⁴⁹ 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. [*72]

Part IV asks whether Taft-Hartley strike 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. ⁵⁰ 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. ⁵¹ 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. ⁵² 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 injunctions, ⁵³ 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 labor injunction. ⁵⁴ 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: [*73]

. courts developed and applied injunctive powers without legislative oversight or input, and therefore tended to abuse their authority; ⁵⁵

. when Congress belatedly tried to curb federal jurisdiction in labor disputes, courts construed these laws as not applying to labor disputes; ⁵⁶

. injunction courts were guilty of several excesses, such as criminalizing lawful conduct, depriving union supporters due process, and stereotyping these activists as unsavory; ⁵⁷ and

. 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. ⁵⁸

These matters were well known to the 80th Congress, which adopted the national emergency provisions of the Taft-Hartley Act. ⁵⁹ 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. ⁶⁰

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 economic interests. ⁶¹ However, the common law prohibited economic conspiracy. ⁶² In the employment context, this meant prohibiting coercive conduct, such as forcing employers to pay union wages. ⁶³

Workers were permitted by law to withhold their labor until their employer met certain conditions. ⁶⁴ 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." ⁶⁵

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...." ⁶⁶ Typically this prohibition applied to strikers who induced replacements not to take their work. ⁶⁷

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. ⁶⁸ 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 of intimidation. ⁶⁹

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 state legislatures. ⁷⁰ 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. ⁷¹ Injunctions were the ultimate expression of this power. [*75]

By a steady accretion of common law decisions, state and federal courts transplanted the English prohibition against striker molestation or obstruction of replacement workers. ⁷² These decisions also created a right to strike, with certain limitations. ⁷³ 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. ⁷⁴

When workers crossed this threshold, they often encountered the full force of judicial power. ⁷⁵ [*76]

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. ⁷⁶ 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. ⁷⁷

American courts relied on an 1868 English precedent, Springhead Spinning Co. v. Riley, ⁷⁸ 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. ⁷⁹ The court based its novel use of equity on precedents involving injunctions to abate nuisances that threatened irreparable harm to private property. ⁸⁰ 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 of property." ⁸¹

This ruling set a powerful precedent for merging equity and criminal jurisdiction in labor disputes. ⁸² 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 line. ⁸³ 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. ⁸⁴ Sherry v. Perkins ⁸⁵ involved the first American labor injunction. ⁸⁶ The court used equity to enjoin the union's conduct. ⁸⁷

Many other state courts followed this example. ⁸⁸ The widely cited Vegelahn v. Guntner ⁸⁹ 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. ⁹⁰ 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. Perkins." ⁹¹

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. ⁹² Holmes objected to the breadth of the injunction, finding that it prohibited lawful striker conduct such as "social intercourse and even organized peaceful persuasion." ⁹³ 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." ⁹⁴

In a contemporaneous development, federal courts enjoined lawful strikes. ⁹⁵ These actions disgraced federal courts. Stereotyping was evident in some injunction decisions. The judge in United States v. Elliot ⁹⁶ 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." ⁹⁷ [*80]

Other injunctions were so vague as to make their enforcement arbitrary. The order in United States v. Agler ⁹⁸ 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. ⁹⁹ 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. ¹⁰⁰

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. ¹⁰¹ 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 jurisdiction. ¹⁰² [*81]

Eventually, the Supreme Court upheld the legality of labor injunctions. Hitchman Coal & Coke Co. v. Mitchell ¹⁰³ 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. ¹⁰⁴ The union secretly signed up workers as members and then planned a massive strike to induce employers to bargain. ¹⁰⁵ 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. ¹⁰⁶ The order also enjoined striking. ¹⁰⁷

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. ¹⁰⁸ 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. ¹⁰⁹

[*82]

This reasoning expanded the injunction beyond its English common law origin. ¹¹⁰ 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. ¹¹¹

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 proceedings; ¹¹² depriving union leaders of constitutional rights; ¹¹³ violating separation of powers by usurping legislative and executive functions; ¹¹⁴ [*83] personalizing judgments and orders; ¹¹⁵ favoring capital over labor; ¹¹⁶ and resurrecting the tyrannical Star Chamber in American form. ¹¹⁷ [*84]

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, ¹¹⁸ elements of this bill would reappear in the Clayton Act in 1914. ¹¹⁹ 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. ¹²⁰

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. ¹²¹ During the same time, the Supreme Court held that the Sherman Act applied to "labor combinations"--meaning unions--in the seminal Danbury Hatters case. ¹²² This ruling was pivotal because it brought so much strike activity within the ambit of antitrust law. ¹²³ [*85]

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 antitrust law. ¹²⁴ It finally achieved this result in $ S 6 of the Clayton Act. ¹²⁵ 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." ¹²⁶

In short, Congress intended to insulate workers from federal injunctions when it limited federal jurisdiction in a labor dispute. ¹²⁷ Congress also recognized the right of employers to be protected from certain economic injuries. Thus, $ S 20 provided for injunctions in labor disputes, but only if "necessary to prevent irreparable injury to property, or to a property right...for which no there is remedy at law." ¹²⁸ At the same time, Congress also immunized a broad range of peaceful worker activities from injunctions. ¹²⁹ [*86]

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." ¹³⁰ 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. ¹³¹

But Congress expressed concern that courts would abridge the rights of union activists in equity proceedings. ¹³² As a result, Congress provided for a jury trial for a striker charged with contempt: [*87]

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 upon information. ¹³³

American Steel Foundries v. Tri-City Central Trades Council, ¹³⁴ 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. ¹³⁵ 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. ¹³⁶ After some picketers assaulted workers, a district court enjoined a broad range of union activity. ¹³⁷

The Supreme Court overruled that part of the injunction prohibiting area unions from peacefully persuading foundry employees to go out on strike. ¹³⁸ In broad language, the Court noted that the newly enacted Clayton Act protected unions and strikes. ¹³⁹ 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." ¹⁴⁰ 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. ¹⁴¹

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. ¹⁴² By implication, the Supreme Court would not protect from antitrust law any strike activity that obstructed trade beyond these areas. ¹⁴³

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 ¹⁴⁴ and Bedford Co. v. Stone Cutters Ass'n ¹⁴⁵ 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. ¹⁴⁶ [*89]

The union in Duplex Printing represented workers at three of the nation's four manufacturers of large printing presses. ¹⁴⁷ Duplex refused, however, to recognize the union. ¹⁴⁸ It paid wages below union scale and had longer working hours than unionized firms. ¹⁴⁹

To compete against Duplex, two of the other unionized firms informed the Machinists union that they would have to terminate their labor agreements. ¹⁵⁰ As a result, the union began a campaign to pressure Duplex into negotiating an agreement. ¹⁵¹ 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. ¹⁵² 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. ¹⁵³ 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. ¹⁵⁴ A court enjoined this secondary activity, and the Supreme Court upheld the injunction. ¹⁵⁵ [*90]

Justice Brandeis' dissent showed how the Duplex Printing majority thoroughly breached the Clayton Act. ¹⁵⁶ The enjoined conduct was neither violent nor threatening, nor did it induce workers to break existing contracts. ¹⁵⁷ The union's "justification was that of self-interest. They have supported the strike at the employer's factory by a strike elsewhere against its product." ¹⁵⁸ 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 legal relationship. ¹⁵⁹

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 building construction. ¹⁶⁰ The company terminated the agreement in 1921, thus closing its shops to union members. ¹⁶¹ The national union retaliated by declaring a strike against any builder who used Bedford stone. ¹⁶²

This declaration led to secondary strikes. ¹⁶³ In Denver, union workers who enjoyed a good relationship with their employer went out on strike because the builder used Bedford stone. ¹⁶⁴ 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. ¹⁶⁵ 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." ¹⁶⁶ 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." ¹⁶⁷ 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. ¹⁶⁸ One enjoined peaceful strike conduct by narrowly construing "employee" and "employer" in $ S 20. ¹⁶⁹ Another found an imaginative way to circumvent the requirement of jury trial for contempt. ¹⁷⁰ 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. ¹⁷¹ Other federal courts ruled that [*92] peaceful strikes were enjoinable as restraints against trade, ¹⁷² and collection of union dues was enjoinable because that money was used to organize nonunion mines. ¹⁷³

In sum, the Clayton Act moderated equity in some labor dispute cases. ¹⁷⁴ 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." ¹⁷⁵

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 Duplex Printing: "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." ¹⁷⁶ Congress was therefore again compelled to limit injunctive relief available to employers during a labor dispute. [*93]

The Norris-LaGuardia Act of 1932 resulted from judicial usurpation of the Clayton Act. ¹⁷⁷ Senator Norris justified his bill by calling attention to 389 labor injunctions from 1922-1932, many of which enforced yellow dog contracts. ¹⁷⁸ 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. ¹⁷⁹ 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. ¹⁸⁰ Thus, workers were not only able to strike against their employers, but to engage in sympathy strikes against neutral [*94] employers. ¹⁸¹ 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 labor disputes. ¹⁸²

The Norris-LaGuardia Act achieved Congress's main objective of removing federal courts from most labor disputes. ¹⁸³ 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. ¹⁸⁴ In another case, the Court removed federal jurisdiction to enjoin secondary picketing under the Railway Labor Act. ¹⁸⁵ In another ruling, it narrowed application of the Sherman Act to unions. ¹⁸⁶ [*96]

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 770 ¹⁸⁷ ruled that courts may enjoin strikes that violate a no-strike clause in a collective bargaining agreement. ¹⁸⁸ 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. ¹⁸⁹ The employer sought an injunction to compel the union to honor its promise to submit contract disputes to arbitration. ¹⁹⁰ 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. ¹⁹¹

More recently, the Supreme Court limited Boys Market in Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO. ¹⁹² As a result, federal courts cannot enjoin a union from engaging in a sympathy strike, even though it agreed by contract not to strike. ¹⁹³ The Court also held in United States v. United Mine Workers ¹⁹⁴ 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. ¹⁹⁵ Such orders generally do not present the problem of judicial [*97] interference in substantive aspects of labor negotiations. ¹⁹⁶ They enjoin conduct that endangers public safety and welfare. ¹⁹⁷

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. ¹⁹⁸ [*99]

III. Taft-Hartley Regulation of National Emergency Strikes

Taft-Hartley is as short on definitions as it is long on prescriptions....

--John A. Ackerman ¹⁹⁹

A. Legislative History of the National Emergency Strike Provisions of the Taft-Hartley Act

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 interfere. ²⁰⁰ Second, to make this a reality, there should be equality of bargaining power. ²⁰¹ Without reserving economic weapons to the parties, the law presumed that unions and employers would have no economic incentive to bargain in good faith. ²⁰² [*100]

By enacting the national emergency provisions in the Taft-Hartley Act, ²⁰³ 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 investigate. ²⁰⁴ The board must "ascertain the facts with respect to the causes and circumstances of the dispute." ²⁰⁵ Upon petition of the Attorney General, ²⁰⁶ federal district courts may enjoin a work stoppage. ²⁰⁷ During this time, the parties should try to reach a settlement with the aid of the Federal Mediation and Conciliation Service. ²⁰⁸ If the [*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. ²⁰⁹ The NLRB must submit this offer to a secret ballot of the employees. ²¹⁰ After the Board certifies this vote to the Attorney General, she must petition the district court to discharge the injunction. ²¹¹

Congress believed that public opinion should be mobilized in this period to pressure the parties to settle. ²¹² If no settlement occurs, the President must report to Congress and may recommend a legislative resolution. ²¹³

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? ²¹⁴

They also questioned what "substantial curtailment" of industry means. ²¹⁵ This vague standard virtually assured that the President's intervention would "add to the heat of controversies" ²¹⁶ and "tend to aggravate rather than to resolve labor disputes in essential services." ²¹⁷

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 "public welfare." ²¹⁸

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." ²¹⁹ 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. ²²⁰

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. ²²¹ They believe that judges were poorly qualified to intervene in national emergency strikes. ²²² [*103]

These opponents also believed that injunctions would more likely frustrate than promote dispute settlement. ²²³ 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. ²²⁴ In addition, a provision for a secret vote by employees on a proposed settlement "implied that employees are always the adamant party in their refusal to accept the offer of the employer." ²²⁵

Senate Democrats had different concerns. Their report drew upon the negative experience of labor injunctions prior to enactment of the Norris-LaGuardia Act. ²²⁶ 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." ²²⁷ It failed to provide the Attorney General clear guidance "in determining at what stage of the negotiations a strike may be 'threatened.'" ²²⁸ 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 industries." ²²⁹

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. ²³⁰ [*104]

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 of Taft-Hartley. ²³¹ 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." ²³² 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." ²³³ Since "feelings run high, and witnesses are often biased," courts cannot reach sound conclusions of fact. ²³⁴

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. ²³⁵

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." ²³⁶ 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. ²³⁷

[*105]

Soon after courts ordered Taft-Hartley injunctions, Witte's concern were realized. The law's hasty process raised questions about fairness. ²³⁸ The law also inhibited bargaining and prolonged labor disputes. ²³⁹ Experience contradicted the notion that union leaders obstructed settlement by withholding a vote on an employer's final offer. ²⁴⁰

Table 1 reproduces and supplements a summary of all national emergency strikes from a 1978 Department of Labor report. ²⁴¹ 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. ²⁴² [*107]

Table 1:

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. ²⁴³ After extensive settlement efforts failed, they went on strike on August 29. ²⁴⁴ President Truman invoked the emergency provisions of Taft-Hartley by forming a board of inquiry on December 3. ²⁴⁵ By December 12, the board concluded that the strike involved an entire industry and imperiled national safety. ²⁴⁶ 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. ²⁴⁷

The union argued that the injunction provision of Taft-Hartley violated the Constitution by granting federal courts more than judicial power. ²⁴⁸ 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. ²⁴⁹ 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. ²⁵⁰

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. ²⁵¹ The district court, in its haste to act, granted an ex parte restraining order. ²⁵² When the union appeared at the next hearing and moved to dismiss the complaint, it contended that the district court lacked subject matter jurisdiction. ²⁵³ In addition, [*109] the union argued that Taft-Hartley vested non-judicial functions in the court. ²⁵⁴ The judge resolved these important issues in bench rulings, and in writing his decision two weeks later brushed aside the union's serious arguments. ²⁵⁵

This injunction proceeding was similar to that in Federal Radio Comm'n v. General Electric, ²⁵⁶ 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 essentially legislative." ²⁵⁷ The fundamental issue here was the appropriate response to a shortage of military supplies during a war--more a legislative than judicial controversy. ²⁵⁸ By ignoring this balance, the court acquiesced to an emergency powers law that bent judicial power out of constitutional shape. ²⁵⁹

The Third Circuit offered a more detailed justification for the injunction in the steel strike of 1959. ²⁶⁰ It conceded that Taft-Hartley orders were similar to [*110] labor injunctions that the Norris-LaGuardia Act sought to end. ²⁶¹ The court shrugged off this problem by blaming Congress for reviving this order. ²⁶² In contrast to the Second Circuit, this court spoke openly about Taft-Hartley's potential problem in re-creating "status injunctions." ²⁶³

The court dismissed this concern by reasoning that its jurisdiction was akin to judicial review of NLRB orders. ²⁶⁴ This reasoning was unpersuasive because by then federal courts exercised independent judgment in denying NLRB requests for injunctions. ²⁶⁵ In contrast, they routinely deferred to Attorney General requests for injunctions. ²⁶⁶

2. Taft-Hartley Courts Have Relied on Unrealistic or Distorted Assumptions to Support Injunctions

The emergency nature of injunction hearings led courts to act upon assumptions rather than findings of fact. Evidence in the United States v. International Longshoremen's Association ²⁶⁷ 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. ²⁶⁸ 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. ²⁶⁹ [*111]

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." ²⁷⁰ This argument was valid, because the board took only one day to investigate and report dramatic findings. ²⁷¹ 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." ²⁷²

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." ²⁷³ 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 imperiled.

Other 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. ²⁷⁴

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." ²⁷⁵

United States v. Avco Corp. ²⁷⁶ 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. ²⁷⁷ The Executive Order required the board to report back within a day. ²⁷⁸ Complying with the order, the board sent back its report, and Johnson immediately directed his Attorney General to petition for an injunction. ²⁷⁹ The court issued a temporary restraining order from the bench just two days later, and a preliminary injunction on April 25th. ²⁸⁰

The emergency board and court failed to make any meaningful inquiry. ²⁸¹ 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. ²⁸²

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. ²⁸³ 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? ²⁸⁴ 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, ²⁸⁵ 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 Association, ²⁸⁶ 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. ²⁸⁷

In rejecting these arguments, the court stated that neither the emergency board nor federal courts could provide the unions with these rudiments of an adversarial hearing. ²⁸⁸

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." ²⁸⁹ In several strikes, however, the Supreme Court expanded the meaning of "national health or safety" to mean national inconvenience. [*114]

This debate on definitions was at the heart of the steelworkers' strike in United Steelworkers of America v. United States. ²⁹⁰ Their work stoppage began on July 15, 1959, and continued until an injunction was issued on October 20. ²⁹¹ 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. ²⁹²

The issue before the Court was whether the strike imperiled the nation's health or safety. ²⁹³ The government contended that the term "comprehends the country's general well-being, its economic health." ²⁹⁴ The Steelworkers countered that the term meant "the physical health of the citizenry." ²⁹⁵ Relying on the board of inquiry's findings that the strike affected national defense, the district court issued its injunction. ²⁹⁶ In a per curium ruling, the Supreme Court accepted the Government's interpretation with little explanation. ²⁹⁷

In his lengthy dissent, Justice Douglas accused the district court of rubber-stamping the Attorney General's petition. ²⁹⁸ "An appeal to the equity jurisdiction of the Federal District Court is an appeal to its sound discretion," ²⁹⁹ he noted.

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 against 500,000 [*115] workers when the inactivity of only 5000 or 10,000 of the total imperils the national safety. ³⁰⁰

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. ³⁰¹

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 the Nation. ³⁰²

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. ³⁰³

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 like." ³⁰⁴ He seemed to prevail in this argument by showing that the Senate preferred a narrower definition of national emergency. ³⁰⁵ [*116]

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. ³⁰⁶

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 418 ³⁰⁷ 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. ³⁰⁸ The court wrote a scathing critique of the federal government's abuse of its emergency powers. ³⁰⁹ The exceptionally small scale of this strike, confined to Chicago-area grain ports, contributed to the court's view. ³¹⁰ [*117]

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. ³¹¹ 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 governmental intervention. ³¹²

5. 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, ³¹³ 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. ³¹⁴ The threat of a mid-voyage work stoppage would deter shippers from sending cargo. ³¹⁵

After the court issued its preliminary injunction, seamen were forced to enter into employment contracts called shipping articles. ³¹⁶ 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. ³¹⁷ [*118] The district court modified its injunction to prohibit this rider, which extended the injunction for months. ³¹⁸

Although the Ninth Circuit overturned this ruling, ³¹⁹ 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

When Taft-Hartley injunctions were used most frequently, the federal government conducted two careful studies about national emergency strikes. ³²⁰ 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. ³²¹ Although commissioned by the U.S. Department of Labor, the study was an independent inquiry led by a Harvard professor of business administration, E. Robert Livernash. ³²² 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." ³²³ [*119]

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." ³²⁴ 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." ³²⁵

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. ³²⁶ A Taft-Hartley solution was part of the problem. ³²⁷ The other criticism was more oblique, implying that courts did not adequately consider union arguments to tailor injunctions to meet defense needs in emergency contexts. ³²⁸ In theory, "An injunction seems to be a sufficiently flexible device to be used at a single plant or group of plants within one industry." ³²⁹ 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 partial operation...." ³³⁰

Taking a broader view of emergency strikes, the report came to its ultimate conclusion:

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. ³³¹

[*120]

Table 2A

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 exaggerated. ³³² 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. ³³³

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. ³³⁴

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. ³³⁵

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. ³³⁶

[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 dispute. ³³⁷ [*121]

Table 2B

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. ³³⁸

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 employment. ³³⁹

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. ³⁴⁰

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 this country. ³⁴¹

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. ³⁴²

Some commodities such as petroleum imports and coal exports are not affected by a longshore strike. ³⁴³ [*122]

The second Department of Labor ("DOL") study, conducted in 1970, concluded again that the effects of national emergency strikes were seriously exaggerated. ³⁴⁴

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. ³⁴⁵

These DOL reports were consistent with earlier academic studies that showed large strikes have minimal impact on the nation. ³⁴⁶ 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. ³⁴⁷ 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." ³⁴⁸ 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 general, however, "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." ³⁴⁹ In [*123] their view, these results clearly implied that strike controls such as Taft-Hartley injunctions were unnecessary. ³⁵⁰

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.

IV.Do Taft-Hartley Strike 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 controversy.

--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. ³⁵¹ 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.

A. 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 effect. ³⁵² 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. ³⁵³ 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. ³⁵⁴

The 1961 DOL report addressed the importance of public opinion in pivotal strikes. ³⁵⁵ Before negotiations began in 1959, the union and steel industry launched nationwide publicity campaigns. ³⁵⁶ Union newspaper ads emphasized the benefit to the public of improved wageearnings for steelworkers, as well as corporate greed. ³⁵⁷ The company countered that the union's demands were inflationary and would harm the national economy. ³⁵⁸

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." ³⁵⁹ 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." ³⁶⁰

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 reporting supplanted "the influence of family, neighbor, teacher, preacher, and co-worker" in the formation of public opinion about unions and activities such as strikes. ³⁶¹ Furthermore, it found that reporting concentrated on "bad news," which coincided with "organized labor success in developing bargaining power." ³⁶² Soon after, another analysis found that public disapproval of labor unions increased because of strike-related coverage. ³⁶³ A 1994 study found a positive and significant relationship between strike activity and public disapproval of unions. ³⁶⁴ A 1996 study of newspaper reporting of strikes and contract settlements concluded that "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." ³⁶⁵

B. Taft-Hartley Injunctions Benefitted Employers and Harmed Unions in Key Pattern-Setting Labor Negotiations

Taft-Hartley injunctions altered the balance of bargaining power in critical strikes, usually to the detriment of unions. ³⁶⁶ 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. ³⁶⁷ 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." ³⁶⁸ 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." ³⁶⁹ [*126]

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 relationship. ³⁷⁰ 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. ³⁷¹ The fact that unions had organized a dominant share of industrial labor markets limited employer options for substituting nonunion labor. ³⁷² Since production of basic goods such as steel, autos, and rubber was densely concentrated among just a few firms, ³⁷³ and because unions represented more than 80 percent of the employees in these industries, ³⁷⁴ 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. ³⁷⁵

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 suggests that 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, ³⁷⁶ [*127] maritime, ³⁷⁷ and longshoring. ³⁷⁸ 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. ³⁷⁹

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 ³⁸⁰

Our research literature opens a dormant inquiry into the harmful effects of labor injunctions. ³⁸¹ But since there has not been a national emergency strike since 1978, why are Taft-Hartley injunctions relevant? [*128]

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 safety." ³⁸² 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. ³⁸³

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. ³⁸⁴ They have intervened in labor disputes affecting airlines ³⁸⁵ and railroads ³⁸⁶ under the Railway Labor Act, ³⁸⁷ and those that are subject to the TaftHartley [*129] Act. ³⁸⁸ Although disputes that potentially arise under the national emergency provisions of the TaftHartley Act are rare, they are also extremely important. ³⁸⁹ They matter greatly to the striking union, ³⁹⁰ and more generally to the labor movement. ³⁹¹ [*130]

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. ³⁹² In nine strikes, settlements were reached after the cooling-off period expired. ³⁹³ This evidence is important because it relates to the empirical finding that "firms 'win' more long strikes than unions." ³⁹⁴ 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, ³⁹⁵ has fallen sharply to about fourteen percent. ³⁹⁶ This decline in union representation clearly implies that the need for TaftHartley injunctions no longer exists, or is greatly diminished. [*131]

. Pattern bargaining and its closely related analog, industry bargaining, are relics. ³⁹⁷ 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. ³⁹⁸ 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. ³⁹⁹ 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, ⁴⁰⁰ combined with technological displacement of labor, ⁴⁰¹ 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. ⁴⁰² As our research here shows, the type of employer involved in a Taft-Hartley strike--an industry leader--fits this description. ⁴⁰³ These large employers once relied on a traditional model of permanent employment for its workforce; but today, this is displaced by more contingent work. ⁴⁰⁴ 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. ⁴⁰⁵

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 explains:

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. ⁴⁰⁶

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 been realized. ⁴⁰⁷

President Reagan's firing of air traffic controllers is often cited as a primary cause in declining strike activity. ⁴⁰⁸ 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 this phenomena.

The first sharp drop in strikes that began the current decline occurred just after President Carter invoked Taft-Hartley national emergency strike procedures. ⁴⁰⁹ 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. ⁴¹⁰ 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, ⁴¹¹ 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." ⁴¹² He reasoned, "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." ⁴¹³ 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." ⁴¹⁴

FOOTNOTES:

n1 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 amended at 29 U.S.C. � � 151-169 (1994)).

n3 See 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.

Id.

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.

Id.

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.

Id.

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 thirtyfive non-strikers "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 demonstrations:

The term "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.

Id.

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.

n9 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 Relations Act, 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 Example, 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 Doctrine, 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).

n10 See 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:

Senator Metzenbaum: "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...."

Mr. Donahue: "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."

Id.

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 recognition.

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 decertification.").

n18 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., 1st Sess., � 2, at 10 (1947), reprinted in 1 NLRB, Legislative History of the Labor-Management Relations Act of 1947, at 463, 472 (1948) [hereinafter LMRA Legislative History].

n20 29 U.S.C. � 163 (1994).

n21 See 29 U.S.C. � 176(a) (1994).

n22 See 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. See 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. Meltzer & Cass R. Sunstein, Public Employee Strikes, Executive Discretion, and the Air Traffic Controllers, 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 database, 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 concluded: "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 Stat. 136.

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.

n64 See 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....

Id.

n65 6 Geo. 4, ch. 129, � 4 (1825) (Eng.).

n66 Id.

n67 See 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).

n75 See 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).

n77 See 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.

n78 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.

Id. "Minders" refers to the trade on strike. See id.

n79 See 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.

n82 See 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 courts: "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 Spinning. See 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.

Id.

n84 See Gregory, supra note 4, at 492.

n85 147 Mass. 212 (1888).

n86 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.

n87 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 continuous." 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).

n89 67 Mass. 92 (1896).

n90 Id. at 97.

n91 Id. at 98.

n92 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.

n93 Id. at 104.

n94 Id. at 105.

n95 See 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).

n96 64 F. 27 (E.D. Mo. 1894).

n97 Id. at 31.

n98 62 F. 824 (N.D. Ind. 1894).

n99 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.").

n100 Id.

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 "the "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 contents." Id. at 827-28. The judge concluded that the injunction was too vague to support an order for contempt:

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 Greene cited 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).

n103 245 U.S. 229 (1917).

n104 See 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).

n105 See Hitchman Coal & Coke Co., 245 U.S. at 246-48.

n106 See id. at 259-60.

n107 See id. at 261-62.

n108 See 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....").

n109 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).

n110 See 5 Geo. 4, ch. 95, � 5 (June 21, 1824).

n111 See, e.g., Commonwealth v. Hunt, 45 Mass. (4 Met.) 111 (1842).

n112 See 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 nature.").

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 political powers.

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 legislation, and...that "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.

Id.

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.

Id.

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.

Id.

n117 See William Draper Lewis, Injunctions to Restrain Libels, and Courts of Criminal Equity, 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 employers "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.

n121 See 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 contract." 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.

n122 See 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 combinations, because, "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 or trust").

n126 15 U.S.C. � � 1-7 (1994).

n127 See 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.

Id.

n129 See 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....

Id.

n130 38 Stat. 730 � 24.

n131 See 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. Id. Construing � 22 of the Clayton Act, the appeals court dismissed this contention, concluding, "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....

Id.

n133 15 U.S.C. � 22 (1994).

n134 257 U.S. 184 (1921).

n135 See id. at 196.

n136 See id.

n137 See 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.

n138 See id. at 212-13.

n139 See 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 struggle....

Id.

n140 Id.

n141 See Clayton Act, 38 Stat. 730 (1914) (codified as amended at 15 U.S.C. � � 12-37 (1994)).

n142 See 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.

Id.

n143 See 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).

n144 254 U.S. 443 (1921).

n145 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.

Id.

n147 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.

n152 See 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.

n157 See id. at 479-80 (Brandeis, J., dissenting).

n158 Id. at 480.

n159 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 voluntary quits.

n160 See Bedford Cut Stone Co. v. Journeyman Stone Cutter's Ass'n. of N. Am., 274 U.S. 37, 41 (1927).

n161 See id. at 42.

n162 See id. at 43. The union referred to the Company's product as "unfair" stone. Id.

n163 See id. at 43.

n164 See id. at 43-45.

n165 See id. at 55.

n166 Id. at 54.

n167 Id. at 51.

n168 See 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).

n169 See Canoe Creek Coal Co. v. Christinson, 281 F. 559 (W.D. Ky. 1922). The employer sought an injunction against strikers and nonemployee sympathizers. 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.

n170 In 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, noting:

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 jury trial.

Id. at 814.

n171 See 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 appeal. See id. at 912.

n172 See 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).

n173 See 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).

n174 See 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 injunction. See id. at 45. Under the Clayton Act, defendant union members were convicted of contempt by a jury. See 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.

n177 See � 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 (1932).

n180 See � 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 defined).

(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.

Id.

n181 See 29 U.S.C. � 113(c) (1994) (defining the types of labor disputes in which courts were divested of jurisdiction):

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).

n182 See 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 employment;

(b) Becoming or remaining a member of any labor organization or of any labor organization...;

(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 heretofore specified;

(h) Agreeing with other persons to do or not to do any of the acts heretofore specified; and

(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified....

Id.

n183 See 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 activity.

Id.

n184 See 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.

n185 See 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 Congress "responded directly to the construction Clayton Act in Duplex, and to the pattern of injunctions entered by federal judges." Id. at 438.

n186 See 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 issued. See 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 violations." Id. at 513.

n187 398 U.S. 235 (1970).

n188 See id. at 238.

n189 See id. at 238-39.

n190 See id. at 238-40.

n191 See id. at 249-53.

n192 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").

n193 See id. at 408 n.10.

n194 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. Ferguson: "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."

Mr. Murray: "But it authorizes the employers to bring suit in the Federal courts, if they so desire."

Mr. Ferguson: "That is correct. That is all it does. It takes away no jurisdiction of the State courts."

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 nervous. See 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.

In 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).

n198 See 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 here." 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 exacerbated.

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.

See also 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 economy." 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.

n202 See 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 side.

Id.

n203 See Labor Management Relations (Taft-Hartley) Act of 1947, Pub. L. No. 101, 61 Stat. 136 (1947).

n204 See 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.

n205 29 U.S.C. � 176(a) (1994).

n206 See 29 U.S.C. � 178 (1994). The Attorney General must show that a threatened or actual strike or lockout 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 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 safety." Id.

n207 See 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 commerce; and

(ii) if permitted to occur or to continue, will imperil the national health or safety....

Id.

Congress also gave courts authority to fashion an injunction "as may be appropriate." Id.

n208 See 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.").

n209 See 29 U.S.C. � 179(b) (1994).

n210 See id.

n211 See 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.

n213 See 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 occur." Id.

n216 Id.

n217 Id.

n218 See the colloquy involving Representatives Kennedy and Owens at 93 Cong. Rec. 3513 (1947):

Mr. Kennedy: "I believe that this country should certainly be in a position to combat a strike that affects the health and safety of the people...."

Mr. Owens: "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."

Mr. Kennedy. "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."

Mr. Owens: "Does not the gentleman agree that 'welfare' is the stronger and in line with the President's idea?"

Mr. Kennedy. "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."

Id.

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 field.").

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.

n227 Id.

n228 Id.

n229 Id.

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.

Id.

n231 See Edwin Witte, The Federal Anti-Injunction Act, 16 Minn. L. Rev. 638 (1932).

n232 See id. at 652.

n233 See id. at 651-52.

n234 See id.

n235 Id.

n236 Id. at 657.

n237 Id.

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 Table 1:

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 1966)

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)

30 & 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).

n243 See United States v. United Steelworkers of Am., CIO, 202 F.2d 132, 134 (2d. Cir. 1953).

n244 See id. at 135.

n245 See id.

n246 See id.

n247 See United States v. American Locomotive Co., 109 F. Supp. 78, 79, 87 (W.D.N.Y. 1952).

n248 See 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.

n250 United Steelworkers, 202 F.2d at 139.

n251 Federal Radio Comm'n v. General Elec., 281 U.S. 464, 467 (1930).

n252 See United States v. United Steelworkers of Am., 202 F.2d 132, 136 (2d Cir. 1953).

n253 See id.

n254 See id.

n255 See 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 destroyed." Id.

n256 281 U.S. at 467.

n257 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.

n258 Id.

n259 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 that the "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 concluded, "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.

n260 See United States v. United Steelworkers, 271 F.2d 676 (3d Cir. 1959).

n261 See 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).

n266 See United States v. United Steelworkers, 271 F.2d 676, 683 (3d Cir. 1959).

n267 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 strike "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 trade.

n270 See id. at 103.

n271 See id.

n272 See id.

n273 See id.

n274 United Steelworkers of Am. v. United States, 361 U.S. 39, 70 (1959) (Douglas, J., dissenting).

n275 Id. at 70-71.

n276 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).

n277 See 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.

n278 See id. at 667.

n279 See id. at 667-68.

n280 See id. at 668.

n281 See id. at 667 (noting that the Board held a hearing in Stratford, Connecticut, the location of the strike, during its only day of work).

n282 See 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 be approved:

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).

n284 Compare 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).

n285 See Avco Corp., 270 F. Supp. at 670 (estimating the time needed to find substitute suppliers).

n286 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.

n287 Id. at 854.

n288 See 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).

n290 See 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).

n291 See 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.

n292 See id. at 299.

n293 See United Steelworkers of Am., 361 U.S. at 39, 41.

n294 See 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.

n298 See 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).

n300 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).

n302 Id. at 73-74 (Douglas, J., dissenting).

n303 See 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.").

n304 Id. at 65 (Douglas, J., dissenting).

n305 See 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 of "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 court said, "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).

n307 335 F. Supp. 501 (N.D. Ill. 1971).

n308 See id. at 507.

n309 See 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 national emergency.

n312 Id. at 509.

n313 304 F.2d 437 (9th Cir. 1962).

n314 See id. at 439.

n315 See id. at 444-45.

n316 See id. at 438.

n317 See 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.

n318 See id. at 437.

n319 See 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 Study].

n321 See 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.

n324 Basic Steel Industry Study, supra note 320, at 10.

n325 Id.

n326 See 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").

n328 See id. at 224.

n329 Id.

n330 Id. at 48.

n331 Id. at 17.

n332 See Basic Steel Industry Study, supra note 320, at 48.

n333 See United Steelworkers of America v. U.S., 361 U.S. 39, 300 (1959).

n334 See Basic Steel Industry Study, supra note 320, at 6.

n335 See United Steelworkers of Am., 361 U.S. at 301.

n336 See id. at 41.

n337 See Basic Steel Industry Study, supra note 320, at 222.

n338 See 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.

n340 See 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.

n342 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).

n348 Id. at 198.

n349 Id.

n350 See 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.

n355 See 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 4 (1992).

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 difficulties.

Id.

n368 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 output).

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).

n375 See 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.

Id.

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 (7).

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 (6).

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 County, 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 will.").

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).

n387 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 contended, "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 Market, 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 Bargaining, 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 International Trade, 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 members).

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.

n410 See 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 to "limit[] Government intervention to delaying emergency strikes while the psychological pressure of public opinion is brought to bear").

n412 See Northern Sec. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting).

n413 Id.

n414 Id. at 401.

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