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A Reconsideration of the Right to Strike

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A Reconsideration of the Right to Strike The Catholic Lawyer Volume 9 Number 2 Volume 9, Spring 1963, Number 2 Article 4 A Reconsideration of the Right to Strike James Graham Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Labor and Employment Law Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. A Reconsideration of THE RIGHT TO STRIKE JAMES GRAHAM* A DECISION BY the United States Supreme Court in June of 1962 denying injunctive relief to employers in federal courts against strikes in breach of collective bargaining agreements may be one of the more signifi- cant events in the field of labor relations since the passage of the Taft- Hartley amendments to the National Labor Relations Act in 1947.1 The Sinclair Case Mr. Justice Black's majority opinion in Sinclair Refining Co. v. Atkin- son2 certainly clashes with the temper of the times and will probably pro- voke serious proposals for corrective federal legislation. Insofar as the decision reanimates the statutory language and doctrines of a more turbu- lent era in labor relations,' it should also generate fresh discussion about the scope, viability and morality of the so-called "right to strike." In substance, the Court in Sinclair decided that when Congress amended the NLRA and gave federal district courts jurisdiction over breach of contract suits by or against labor organizations, 4 it did not intend to waive the ban of the Norris-LaGuardia Act which prohibited injunctions "in any case involving or growing out of any labor dispute." 5 Norris-LaGuar- dia was enacted ih 1932 as a result of the tendency on the part of many * A.B., Fordham University; LL.B., St. John's University. 61 Stat. 156 (1947), 29 U.S.C. § 185 (1958). 2 370 U.S. 195 (1962). For a discussion of this decision, see 37 ST. JOHN's L. REV. 167 (1962). 3 See Stewart, No-Strike Clauses in Federal Courts, 59 MIcH. L. REV. 673, 676 (1961); Note, 72 HARV. L. REV. 354, 355-56 (1958). 4 61 Stat. 156 (1947), 29 U.S.C. § 185 (1958). 547 Stat. 70 (1932), 29 U.S.C. § 104 (1958). It should be noted that unions have been successful in using § 301 to enforce collective bargaining agreements against their employers. Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957). The petitioner thus claimed in Sinclair that since the no-strike clause is the quid pro quo in consideration of which the employer consents to arbitrate grievance disputes, RIGHT To STRIKE federal judges to enjoin strikes and other in his contract are generally considered to forms of union conduct which disturbed be inadequate either as compensation or as their private views of order in society.6 a deterrent. 10 Federal courts may award Congress, in 1.947 and again in 1959, money damages in these cases but this re- clearly had exempted from the effect of lief is small consolation if the respondent Norris-LaGuardia those amendments to the union lacks the funds to satisfy a substan- NLRA aimed at curbing national emer- tial judgment. Arbitrators and judges, as a gency strikes and certain unfair labor prac- group, are also reluctant to regard unions tices by unions as, for example, "black- as entities apart from their constituent mail" picketing by a minority union, i.e., members who may be earning little more one that does not represent a majority of than the legal minimum wage. the employees of the picketed employer. 7 A It sometimes happens that strikes are proposal by the late Senator Robert A. "wildcat" in origin, unauthorized by the Taft that any breach of a collective bargain- leadership, or perhaps called in defiance of ing agreement be deemed an unfair labor the current administration of the union. practice and enjoinable by the National The problem then arises, which is unre- Labor Relations Board passed the Senate lated to the plight of the employer, of but was removed from the 1947 bill during awarding damages commensurate with a House-Senate Conference. 8 union responsibility for the illegal strike As a practical matter, an employer still activity. Furthermore, the strike, though has the right in a specific case to a court unlawful, may have been called to protest order compelling the striking union to arbi- misconduct on the part of the employer. trate the matter in dispute and the continu- Finally, arbitrators, judges and even em- ation of the strike in the face of such an ployers must take into consideration the order might constitute contempt of court.9 fact that the course of future labor-man- But an employer, without an injunction, has agement relations at the struck plant will no advance protection against future strikes not be aided by an oppressive verdict in of a similar nature. Absent injunctive relief, money damages. the remedies presently available to an em- ployer for violation of a "no strike" clause The Newspaper Blackout Is it possible, however, for an employer granting specific performance of the latter would to take the law into his own hands? May require the same remedy for the former. See Hoe- he, as a defensive measure, retaliate against breckx, Federal Courts Under Section 301, 43 an illegal strike with a lockout affecting MARQ. L. REV. 417, 434 (1960). 6 See Feinsinger, Enforcement of Labor Agree- neutral employees? In December, 1962 the mnents- A New Era in Collective Bargaining, 43 five-member NLRB reversed its trial exam- VA. L. REV. 1261, 1263 (1957). iner who had concluded, after ahearing,that 7 61 Stat. 146 (1947), 29 U.S.C. §§ 10(h), 208(b) (1958). the Publishers' Association of New York 8 Hearings on the Operation of the Labor-Manage- City and its member newspapers had vio- ment Relations Act Before the Joint Committee lated the NLRA by maintaining an agree- on Labor-Management Relations, 80th Cong., 2d Sess. 111-12, 114, 239, 241-42 (1947). O Sinclair v. Atkinson, 370 U.S. 195, 217 (1962) 10 See Hoebreckx, supra note 5, at 437; Rice, A (dissenting opinion); see Note, supra note 3, at Paradox of National Labor Law, 34 MARQ. L. 371. REV. 233, 234-35 (1951). 9 CATHOLIC LAWYER, SPRING 1963 ment which contemplated city-wide shut- June 1960 when Actors' Equity precipi- downs as a deterrent to illegal strike ac- tated a thirteen-day shutdown of Broad- tivity., way's legitimate theaters by threatening to Aside from its enormous legal implica- strike seriatim the more recalcitrant mem- tions, the Publishers' case is important be- bers of the League of New York Theaters. cause, unlike most Board decisions which The Supreme Court, in Buffalo Linen are moot when handed down, this NLRB Supply, reasoned that multi-employer bar- determination apparently encouraged the gaining in this country had developed as a New York newspapers to blackout the city necessary response to the growth of large, when the Typographers' Union struck four powerful unions and that members of an of their members during negotiations only employer association reasonably could pro- several weeks after the Board had an- tect the integrity of their bargaining unit nounced its decision. against the threat of disintegration implicit Prior to this decision, the NLRB and the in a whipsaw strike." The Court in Buffalo courts had permitted lockouts, retaliatory Linen Supply declined to pass upon the or otherwise, only in very limited circum- question whether a lockout might be stances, such as a "whipsaw strike" during equated with the right to strikes although contract negotiations,' 2 or when the threat in a somewhat converse situation the Court of an imminent strike presented unusual affirmed what loosely may be described as 1 economic hardship to an employer. 3 A re- a national policy of non-interference by the cent instance of "whipsawing" occurred in government with the substance of collective bargaining, by deciding that harassing tac- tics, such as shutdowns, by a union during 1 The Publishers' Ass'n of New York City, 4 CCH LAB. L. RFP. (LAB. REL.) (CCH N.L.R.B.) 11776 the course of negotiations did not consitute (Nov. 21, 1962). bad faith bargaining in violation of the 12 NLRB v. Truck Drivers' Local 449, Teamsters NLRA." s Congress, indicated the Court, Union, 353 U.S. 87 (1957) (Buffalo Linen Supply to determine Co.). In NLRB v. Great Falls Employers' Council, did not empower the Board Inc., 277 F.2d 772 (9th Cir. 1960), a union struck what economic sanctions are legally avail- only one of the members of an employers' associ- able to the parties in an ideal or balanced 7 ation and the remaining employers locked out their state of collective bargaining.1 employees. Subsequently the employees were per- mitted to work only a part of each week so as to The Publishers' decision nevertheless be disqualified from receiving unemployment com- represents a considerable extension of the pensation. This was held not to be an unfair labor Buffalo Linen Supply principle in that it practice. 13 "[T]he Board has held that in single-employer encompasses situations where the alleged cases lockouts cannot be used as a weapon against threat to the bargaining unit results, not a union; they may only be used to protect against from a whipsaw strike, but from the possi- v. NLRB, 262 economic loss." Teamsters Union the future at the F-.2d 456, 463 n.19 (D.C.
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