Copyright (c) 2001 Arizona Board of Regents
Arizona Law Review

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."