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:D 5/481 U.S. A THE PROS AND CONS OF COMPULSORY

LIBRARY ARBITRATION SANTA BARBARA UNIVERSITY OF CALIFORNIA Prepared for The New York Chamber of Commerce APR 2 1971 by G UBUCATIONS DEPT, Theodore H. Kheel, Esq.

Senior Partner, Battle, Fowler, Necman, Stokes and Kheel

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A Limited Number -of Additional Copies Are Available on Request

NEW YORK CHAMBER OF COMMERCE-

65 .iberty Street

New York 5, New York

Rctor 2-1123

March, 1961 Reproduced by the Library of Congress, Legislatve R;fercnce Service, July 12, 1963 M Ebb

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INDEX Pages

1. The Purpose of This Study...... 3

2. How Much Compulsion Is Needed...... 5

3. What This Study Includes...... 7

4. The Differnece Between Compulsory and Voluntary Arbitration...... 8

5. The Extent of the Strike Problem, the Various Types of Strikes, and the Existing Machinery For Setting Them...... 10

6. Why Both Management an Labor Are Opposed to Voluntary Arbitration of Terminal or Contracts Disputes...... 13

7. Wartime Experience With Compulsory Arbitration...... 16

8. The Case Against Compulsory Arbitration...... 18 A.Adverse Effect on Collective Bargaining...... 18 B.Enforcement...... 20 C.Inevitability of Government Control Over Prices and Wages...... 22 D.Senatro TaftIs Reviews...... 23

9. The Case For Compulsory Arbitration...... 25

10. Compulsory Arbitration in Federally Regulated Industries...... 27

11. Compulsory Arbitration in State Regulated Industries...... 30 A. Types of Statutes...... 30 B. Legal Consequences...... 31

12. Compulsory Arbitration in Foreign Countries...... 36

13. Alternate Ways of Handling National Emergency.Disputes...... 41 A. The Taft-Hartley Approach...... 41 B. The Search For a Better Formula...... 44 1

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1. The Purpose of This St-idy to the fire. Even in local disputes, considerable agitation developed over strikes that spread far beyond their own bound- President Eisenhower, a staunch advocate of a hands-off policy in recent years of several months in the Summer and Fall of 1960 in labor-management disputes, became visibly alarmed when the aries. A strike elevator constructors brought New York City's 116-day steel strike of 1959, temporarily stopped by an 80-day by a few hundred building construction program almost to a halt. Taft-Ilartlcy Act injunction, threatened to break out again. Aban- billion-dollar-a--ear doning his traditional policy of non-interference in labor-manage- Tfle strike problem, particularly when it involves the national ment affairs, the Presidcnt sternly warned both sides: welfare, came in for considerable discussion by the candidates and "America will not-indeed, it cannot-tolerate for long the of both major parties during the 1960 campaign. Republicans and it is clear that the public crippling of the entire economy as the result of labor-management Democrats alike promised a solution, Congress to find an effective disputes." The choice for "free American employers and em- expects the new administration and conflicts that ployees," he added, was clear. "Voluntarily, in the spirit of free device for coping with large-scale union-management immediate circles. collective bargaining, they will act responsibly; or else, in due have a serious impact far beyond their -course, their countrymen will see to it that they do act responsibly." Secretary of Labor Arthur J. Goldberg recognized this deep- particular His "or else" was widely interpreted as an ultimatum that, felt need when he was named to the cabinet. "Of unless the steel strike was quickly settled, compulsory arbitration concern to me," he said, "is tle pronhtion of labor-management would be invoked as a solution. The strike was settled on January peace." He called this "an objective toward which I am whole- 4, 1960, three wecks before the injunction was due to expire. But heartedly dedicated, for which Y have worked in the past, and what if it had not been settled? What would Congress, into for which I will work unceasingly in the years ahead." whose reluctant lap this dispute would then have been dropped, The idea that compulsory arbitration might be used to head have been able to do about it?\What can this country do to pro- off feuds between industry and labor did not, of course, originate tect itself against tie impact of such strikes? with President Eisenhower. Such proposals, frequently pro- More than a year has passed since the steel strike ended, but pounded by persistent foes of industry-wide strikes and as often the continuing concern over national emergency strikes is still with condemned by opponents of any type of compulsion, have been us. A special committee of the National Council of Churches, the advanced and denounced, off and on, for more than forty years. nation's single most influential group of clerical and lay religious A wave of strikes immediately after World War I provided con- leaders, recently issued a report condemning industry and labor siderable imp(!,s in Congress for a law to prohibit large-scale for shirking public responsibilities in the steel stoppage, and work stoppages, and the view that compulsory arbitration may be . making recommendations to prevent a repetition. The proposals, the tool to insure labor peace has gained acceptance in some quar- discussed later in this study, seem, however, to fall far short of ters as the cold war has intensified. any guarantee that a similar crisis in steel or another vital industry The purpose of this study is to explain what compulsory will not occur again. arbitration is, how it works, and what ifs advantages and disad- The-belief that a positive formula must be found to prevent vantages are. There is no intention here to endorse or oppose national emergency strikes stems from more than the steel walk- conpulsory arbitration; rather, the aim is to present both sides ,ut. 11e distasteful prospect of a stoppage on most of the major of this important and controversial subject so that intelligent railroads in a disagreement over work rules spurred the search Ainericans way become better informed on whether comrplulsory early in 1960 for new methods to achieve peace in that critical arbitration is a practical and desirable way of pieren;i;ng Strikes industry. An 11-day shutdown of the Pennsylvania Railroad, that might otherwise become national emergencies and threats to America's largest rail carrier, in September, 1960 added new fuel the public welfare. - 9 - S 6

disobedience. fo".t of 2. How Much Cosnpulsion Is Nccdcd alatlilLi, often to the point of wil ilful us remember how millions of Americans expressed their disap- are the direct results disagreements between man- Str'kcs of Froval of a law banning the transportation and sale of alcoholic agement and labor in administering or renewing approximately liquors for 14 years, to say nothing of the casual and widespread I 25,C00 collective bargaining contracts under which some 17 z way current laws against gambling have bcen flouted. This patent million Americans, members of about 200 national unions and resentment against being told by law what to do and how to do a strike 15,000 locals, earn their livelihoods. But the prospect of it is especially evident in the head-on clashes between industry and is the single most potent factor in persuading the disputing sides labor. Neither, although for different reasons, wants to be ordered to sit down at a bargaining table and compromise their differences. around by the government. Management's fear of strike-caused losses of production and of management and labor to compul- profits, along with a union's worry over lost wages hardly ever Indeed, the opposition recouped, jointly constitute the prime pressures in hammering out sory arbitration as a national or state policy is so deep-rooted, subject to public regulations, that a peace pact, either before or during a strike. except in the few industries there is little chance that it will be imposed in the foreseeable Where a strike affects only the disputants themselves, no future. Nor, for that matter, do the most vigorous advocates of great need exists for any restriction on its use. But when non- compulsory arbitration seriously advance it as the panacea for rill combatants are hurt, obviously thought mu t be given to their disputes., Thcy confine their recommendations primarily to those with the economy. there- protection. B,, as sdcnts of industrial relations point o;t, disputes which threaten wide segments of If, rc;)no l"' of the strike ince;'tIve for ind'striad corn promise, another fore, there is any likelihood at all of a compulsory arbitration law way of blinding age.,nen;s. ii be joiinndl since, izncr sI/Cl) being enacted on a federal icvcl in the next few years, it will Crci1msances, companies and mInions will frcl .:fentlyfail to reach certainly be carefully circumscribed, most labor relations experts accord1 by themselves. ienc theIe proposal oJ con/pudsory arbitra- are convinced, to apply only in cases of work disruptions and lion, which its sa'pportcrs say is the only possible alternative if production stoppages described by the Taft-Ifartley Act as threaten- strikes are banned. - ing the "national health or safety." Obviously, a ban on strikes and compulsory arbitration, the necessary correlative, can come only through government action. Consequently, the government has two jobs to perform when such a program is undertaken. It must first of all prohibit and enforce the prohibition against strikes; and then it must provide the ma- chinery for resolving unsettled disputes through compulsory arbi- tration. This includes picking the arbitratu:s and defining the issues they are to hear.

Advocates of compulsory arbitration minimize the perils ethers feel will arise from government intervention in a field that traditionally has been a private preserve. The geed of the nation, say its supporters, outweighs any consideration that would nor- mally e given to the rights of uIonized workers and company stockholders to settle their own affairs without government direc- tion. But history records that compulsion of any sort breeds. -3- 8 7 4. The Difference Betwcen Compulsory 3. What This Study Includes and Voluntary Arbitration For reasons cited directly above, the main emphasis of this Voluntary arbitration is a time-honored way of settling dis- e er- one commentator recently study is on the use of compulsory arbitration in national putes. Its origins are so remote that that history. In labor gency disputes. But the picture is drawn on a larger scale so said it existed before the dawn of recorded disagreements the reader may see where compulsory arbitration fits in the com- disputes, it is used most frequently today to settle contract. In plex processes of industrial relations and the search for a path that arise during the life of a collective bargaining is first that approximately to industrial peace. Consequently, compulsory arbitration fact, it is so widely accepted in such situations are devices to between unions and manage- compared to voluntary arbitration, and, since both 95% of the 125,000 agreements extent that disputes settle disputes that might othenvise result in strikes, the ments in the United States contain clauses specifying of by voluntary of the strike problem is described. The various types labor over interpretations of those contracts be adjudicated with defini- by either labor or disputes which can result in strikes are then classified, arbitration. It is rarely accepted, however, is also of a new or renewed tions of the existing machinery for settling them. There management for disputes over the contents disputes in voluntary arbitration is a brief description of the procedures used to settle contract. Reduced to its simplest terms, is indisputable. a final and binding wartime, when the necessity of banning strikes the submission of a dispute to a third party for employees to dispute or one or. more dis- Restrictions imposed on the right of government decision. It may include an existing analysis of the It is voluntary because the strike is also discussed.. This is followed by an putes that might arise in the future. kind of third- agree to abide by the dcci-. reluctance of both industry and labor to use any disputants, without legal compulsion', to settle terminal agree on how he is to be selected, and are party intervention or voluntary arbitration sion of the third party, terms, as contrasted to the pre-specified types of disputes disputes, or the making of new contract in accord as to the dispute or contract terms. The decide. disputes over the interpretation of existing he may hear and of compulsory arbitration are then dis- principal pros and cons Arbitration becomes compulsory when the submission of the some, states in disputes cussed, as is the use of this process in by law, despite the possible unwilling- utilities. This, incidentally, dispute is made mandatory affecting, for the most paft, public to have their disagreements decided has had with com- ness of one or both parties is the only peacetime experience this country the Railway Labor in this fashion. pulsory arbitration. There is also a survey of ago to handle labor disputes used to settle disputes that might otherwise Act, a law enacted almost 35 years Both devices are of foreign But voluntary arbitration is invoked by the in the railroad and airlines industries. The experience develop into strikes. taken up, and the in reality, a form of countries with compulsory arbitration is then parties ihemnselves to avoid a strike. It is, compulsory arbi- of the dispute final section deals with techniques, other than agreement providing merely that the final resolution The prospect of a tration, now being weighed for dealing with national emergency shall be made by a third person or panel. in collective disputes. strike, usually the most potent force for agreement bargaining, plays its same role when voluntary arbitration is used as it does in bringing about a direct accord.

Compulsory arbitration is imposed when, for some compelling public reason, the government decides to ban strikes. It is gen- erally recognized that, when strikes are ruled out by law, compul- sory arbitration is the only possible way of reaching agreements. b 9 10 Sin(e COmpulISOy arbitration is reg;arded by lOtt stiitlnts of ov- 5. lie Extent of the Strike Problem, crnlmcnt, cConomics, and 1.1bor relations as drastic and distasteful, for re wons discussed more fully later in this study, the question the Various Kinds of Strikes, then arises: how compelling is the need to ban strikes? What, and the Existing Mfachincry n other words, is the extent of the strike problem, and whit for Settling T1henm machinery is already available for coping with the various types of labor disputes? A profusion of work stoppages occurred in 1916, the first full year after the end of the war. But the nuiiMber has decrcascd in recent years. Nevecrthlcss, the time lost is not inconsiderable. Ie!e, in capsule form, is the Bureau of Labor Statistics' 25-year table of all strikes involving six or more workers and lasting at least a full day or shift: Per Ce'ntj

N1. mcr of ,i n Year Sroppage; Nid Losil Tine 1935-39 (average) 2,362 1,1:10,00 16,900,000 0.27 39,700,000 .46 19-17-49 (average) 3,573 ; 0 1915 4,750 3,-1,0,0;00 3 ,000,000 .A7 1.43 1916 4,9s5 210 C 116,000,003 1947 3,693 3 1,6)0,000 .41 19.13 3,119 3,'0 31,1c0,00 .37 ,0 1919 3,606 2,1~0, 50,500,000 .59 1950 4,513 23,51),000 10 0 30,300,000 .4S 1951 4,737 22,900,060 .23 1952 5,117 59,100,000 .57 1953 5,091 3,$2,26 , 00J90 23,300,00) .26 1954 3,463 22,600,000 .21 1955 4,320 23,60n,000 .26 1, .S, CCO 1956 3,825 33,100,00 .29 1957 3,673 2,6000 16,500,000 .14 1958 3,694 1,5)0,0001,63 ,000 23,900,000 .23 1959 3,703 69,000,000 .61

The records for 1960 Lrye not yet been fully assembled, but preliminary reports indicate that the 1960 statistics oil the number of strikes will resocLle those of 1959, but with the numbers of workers idled and man-days lost closer to those of 1953. The 1959 record of um:a-U ys lost and the percentage of lost time rose sharply chicly because of the steel strike.

13y far the bulk of the 62,9.9 strikes that idled 37,210,000 employees for a total of 615,6C0,CC0 :n.'n-days since 1945 occurred because mnanaocgmnent and labor fail!cd to aorce in collective bargaln- ing on the wages and conditions to be included in contracts they were then negotiating. in other words, the main area of the strike 11 -5- 12 problem, at least in terms of numbers, is centered in disputes over the terms and conditions customarily included in collective bargain- has powers broad enough to head off or halt strikes which violate ing agreements. the no-strike pledges of labor agreements. In a recent decision, A fewy the courts have upheld the right of such an arbitrator to issue in- of the strikes were for union recognition. But the number in this junctions to enforce no-strike agreements. This gives the arbitrator classification is relatively insignificant and is steadily tools more effective than those of the courts themselves, since declining because of the widespread use of the election federal statutes and the laws of most states prohibit courts from machinery of the National Labor Relations Board, various similar issuing injunctions in labor disputes except state labor bodies, and card checks accepted by managements. under extraordinary Picketing circumstances and only after a number of stringent requirements restrictions in the 1959 Labor Reform Law may further reduce have been met. the number of walkouts or demonstrations called by unions The leading New for organizational or recognition purposes. A similarly small York case upholding an arbitrator's power fraction to enjoin a strike or slowdown that violates a contract of strikes in recent years was jurisdictional, based on involved a deliberate work slackening disputes between two or more unions battling for the right of their at several breweries (AM1

side carefully selects those cliteria w,'hich best 6. \Vhy Both Management ;lid Labor Are arguments, and each its position. Opposed to the Voluiit etry Arbitration suppOit of Terminal or Contract Disputes Consider, for example, how companies and unions shift their ability to pay, depending on which way Widcspr ad as the use of voluntary arbitration is-and the position on the matter of that it cannot ford vage in- American Arbitr.ion Association has a ro tcr of 13,000 for its the fu res point. Oftcn, arguing concessions, a company will offer to national pancl of neutral umpires--it is seldom invoked for so- creases and other monetary to suStantiate its clairn of called terniinal arbitration, in which a third party or panol makes show its books to union negotiators the binding decision on wa cs, hours and other terms and condi- financial distress. T1be union will rarely rise to this bait, arguing not be expected to subsidize the tions of a contract. But, as we have seCn, disaercements over these instead that its members should company's bu incss by working for less than the goin, rate. iven maters, mostly the so-called "money" items, are the principal union will contend that an un- disputes rcsilting in strikes. Is there, then, any possibility that the if a company is losing money, the rate for labor, just as it has to pay the voluntary use of arbitration for disputes over the terms of new ployer should pay the going and supplies. B t when contracts can lead to an declination or decline in the number of same prices 1s its cmci vjtitors for materials argument will be that the strikes in such cascs? The answer is a de'fnite no. a company is pjrospering, the union's profits shncld Fe sh ard with the employees, and it will ask for The rea_,cns ire not hard to find why both industry and labor "a Iccs-C-e at the Looks' to prove its clain of exo:;bitant es rtnns. are, sor tVe mct 'ar -'d m-ntly OpposiC{ to having even the most 'The employer w lI tlcn mataim that the union has no right to trusted allbitrator f x .ages or other terms of new contracts for ld to see its bc-ks -,ad thit, m any event, it Shou d not : cornel them, eCn th -it'hthey are vwillig to have grievances determined py morm thall its competitors. by outsiOrs. O;e reAon is thAt a dispute over a grievance, whether it be a matter of discipline or an interpretatlon of a contract pro- The tr tI atta to'ards the use of arbitration for vismO;, is not likLly to W as sweeping or a COly as a dispute over terminal isOtes was If 41~slul ly n by JI(k P'iicr, the wav.-es, pensions, or supplmenctary unemployment events, to General Eile tic Company Vic, P iden t cmSt mtmunatjy con- meution a few important contract terms. Be ides, the ground Cecued CiI labor relations for tt cm1lany's 250,000 employees. rules of the contract the arbitrator must follow in deciding a Addressing the American Mining Cngirss in the Fall of 1959, grievance almost invariably limit him to "a interpretation or Mr. Parker spoke of the 'reat ( anlin r of using arbitration" be- application" of the provisions of the ;aet he has to administer. cause it stifles any practical attempt at collective -airg mmng.' whiic, as shal see, applies also to ucfopiclsory Tue. erum! rules, for obvious reasons, cannot be made as In in garvumkent we that: "'ls as both j';ilies -. e any specifc, however, when the "money" issues invmlvin' the signing arbltraticn, he obhamcd long !,at iss te !s goIng to be conzjoronuise by an of a new contract are placed before hin. It is true that there reason to believe Ike inCenitli'e' for either site to b.rg

- 7 - . 15 16 whatever offer he made would merely be regarded as the 'floor' for the compromise, as the outside third party normally feels 7. Wartime Experience With obligated to jack it up to a higher level." Also present in Mr. Compulsory Arbitration Parker's speech is the concern, frequently expressed by manage- When this country is at war, the importance of preventing ment, "of allowing decisions to be made by a group of people strikes which might interfere with the war effort is obvious. Im- who are in no sense representative of the business." The arbitrator, mediately after the United States entered World War II, labor he explained, may impose "additional costs on the business, for quickly gave a "no-strike pledge" on the basis of which President which there is no offsetting gain or revenue, often without any Rooseveit, by Executive Order, created the National War Labor idea of their magnitude." Nor has he any responsibility "for what Board to resolve unsettled disputes. For the most part, this pledge is going to happen the business to and all who are associated with was faithfully carried out, but there were exceptions, and on June it" or "for the loss of customers that can follow if prices have 25, 19,3, Congress passed the War Labor Disputes Act because to be increased to cover dictated cost increases which the business of the urgent necessity of preventing strikes which might inter- is not prepared to bear." fere with the war effort. This law gave the President the power Mr. Parker acknowledged that arbitration may sometimes be to seize "any plant, mine or facility" whencvr lie found that a "helpful in settling disputes over the interpretation of a contract, strike or other labor disturbance" might unduly impede or delay and the application of its provisions to sonic particular grievance," our drive for military victory. It also gave statutory recognition to but he emphasized that it "can only cause trouble" in the settle- the National War Labor Board and 'empowered it to decide the ment of contract terms. Instead, he strongly urged "direct negotia- rights and wrongs of unsettled labor disputes by providing "by tion between those who are actually going to be affected and bound order the wrges a:d holrs 'nd all other terms an;l coldi,'ions by the contract, and who will have to live with it after it is signed." (CustoIarily inCluded il coilcclive bargaininga-greements) gozernl- Although it starts from the opposite point of departure, labor ing the relations between the parties" (italics supplied). expresses substantially the same views about the arbitration of 'This was compulsory arbitration, imposed as a wartime neces- contract terms. Of course, one side or the other may propose arbi- 'compulsory arbitration" were not tration in a particular case. But as one astute observer remarked, it sity, even though the words essential elements: a strike ban and is usually the weaker party that is anxious to open the door for the used. Present were the third party to enter. machinery for adjusting unsettled disputes. Whether or not labor and management are right in their Necessary as the National War Labor Board was during unwillingness voluntarily to submit disputes over contract terms World War II, that agency's experience shows plainly that its to arbitration, such opposition is so deeply ingrained in the think- availability to intervene in strike situations stilled collective bar- ing of both sides that there is little likelihood that either will gaining. As the war progressed, more and more disputes between change its position. Since voluntary arbitration cannot be viewed management and unions were submitted to the Board for decisions as the solution for what is the major source of strikes, the question that the parties themselves should and could have made. John W. is now posed more precisely: to what extent should companies and Gibson, Assistant Secretary of Labor in President Truman's ad- unions be forced to submit disputes over contract terms to com- ministration, went so far as to say that it resulted in the 'paralysis' pUlSOry' arbitration? First, let us consider the use of compulsory the collective bargaining process with practically all disputes, arlhitration at a time when there is no question about the impera- of to the Board for Live ncce)sity of curtailing strikes. including many over trivial issues, brought settlem117'nt. -B-

Li 18 N rthlc ; the loard nhAeved its CS"[tial pur (,IsOn .Itributes ose. Mr. the succCss of the Board, however 3. The Case Against Compulsory Arbitration that "to the fact it \\As foumcd upon an agrcemcet of labor and industry, the A. Adverse Affect .k on Collective Bargaining l Nor c.an it Le d ted that wVithout the rco- Cpcr.htn Ot mdutry and labor this Country's great record of As we have scen, experience during World War 11 howcd production would never have been acj. d But there is. no denying the that, once the possibility of a strike was removed, both companies fact that collective barg ining was a adversely affected. and unions tended to resist making the difficult decisions that collective bargaining necessitates. Those who look glumly on coin- pulsory arbitration as a rcmccy to end national emergency strikes continic to insist it will frust- collective bargaining if adopted today. The reason, they say, is obvious: if the diputants know that someone else will ultimately settle their disagr _c ments, and witlot: t the fin ocia1 damage of a strike, they have l;th;ng to goad them into reaching an accord voluntarily through the cvcry-day processes of bargaining. This may Ib either because of a reu. tance to assume disagreeable responsibility or Lc-cause both sidcs recog- nizc that their dispute is likely to vi'd p in the ands of a third party anyhow. Add to this a conviction that any conccs:ion sooner or atcr becomes a floor or. ceiling for bar.inin ' and neltlur side bCcomes ready to move an inch from is original position. This, in turn, puts the warming parties in unrealistic positions which thcy themselves created ierely to tilt from il collective bargaining that never really takes place.

R. Conrd Cooper, the chief negotiator for the steel corn-. panics in tlIe 1959 impasse, consistently fought againt any uiter- ention by ;overnment or any other third-party agency to help ,eatle that strike. After the stoppage ended, he explaincd the reason for this view in this way:

"We wanted collective bargaining - not a fa t-rlding board, not government intervention, not arbit ration. .. . We thou ght it wrzng to cast our problems to third paltics for solution. \Ve believed that if the parties were going to learn low to msani ge a prol!cm of these Iimnensions, whIich can come about through the existing frlIaevo:k of collective b arguing, then we had Kt tcr be finding out whether and how we can do it ourselves in the course of coll~eti e bargaining, for otherwise we will have to -ive up all hope that the right for such raining can be freely eCercised.. -9-

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Associ-tion of Manufacturers, after, analyzing faith-- The National in preserving the right of true collective bargaining in good the experience of six foreign countries with compulsory arbitra- without the threat of compulsory arbitration. tion, issued a 28-page study on December 22, 1960, rejecting the process as being "contrary to the American tradition of freedom B. En forccmcnt and ... again the public interest." Compulsory arbitration, that a law flatly prohibiting strikes added the NAM, could not "be applied in the United States with- Most everyone recognizes Not the least of the problems attending out sacrificing the essential factors which have made our economy is an extremist measure. of the right of employees, backed by a the most produvCe and progressive in the world's history." It such a statute is the question involuntary servitude, to with- listed, as its two main objections, that "compulsory arbitration constitutional prohibition against of course, that laws prohibiting strikes violates the Aroerican tenets of freedom of opportunity and inten- hold their labor. It is true, have been passed by the Congress and sive competition" and that "it is at complete variance with the by government employees that such laws have been upheld by American trawtica of freedom and non-compulsion in economic various state legislatures, and says that no one may work for the affairs." Basicahly, the NA M study continued, "compulsory arbi- the courts. The federal law in any strike or asserts the right to tration appears to flourish best in a setting of planned economy government if he "participates or belongs to an orga nation as- with wage-price controls--in nations that have experimented strike against the government" against thre government. The reasening' widely with teehni nes of economic checks and balances." seiting the right to strike concept that refusal to behind such a law goes back to the historic same argument does It isn't only industry that is concerned with government inter- obey the sovereign cannot be tolerated. The ference in relations between companies and unions. AFL-CIO not apply, of course, to private employment. George Meany, testifying before a Congressional com- President even this doctrne emerge, how,ver. tinkcrimg' with Problems of enforcing mite, cautioned lawmakers against government more than 2,500 public- In 1947, spurred by a five-day strike of coiled ive bargaining. Any advantage to be derived, he warned, school teachers in Buffalo, tire New York State leg;:ture passed worth the "would be short-run or illusionary and would not be the Condon-Wadlin Act, which applies a similar no-strike ban price paid in terms of values lost as a result of ciitailing the agency within the stite. It pro- no matter to em ployees of any governmental fundamentally free and adaptable bargaining process, and, vides that those who flout its provisions should be disChargCd how frustrating that process may seem at times." for five years and if they are rehired, must remain on probation 'ilne Condon- Shortly before he was named Secretary of Labor, Arthur J. cannot, for three years, obtain wage increases. ignored, Goldberg spoke at the National Association of Manufacturers' \Wadlin Act is a mandatory law, yet it has been widely school teachers, sanitation 65th Congress of American Industry on the same program with especially in New York City, where cultural Mr. L. A. Peterson, President of the Otis Elevator Company: Mr-. men, transit workers and employees of publicly-supported in strikes or slowdoWlns. Gold'rrg from the union viewpoint, Mr. Pcterson from the man- institutions and others have engaged agernnt outdeok. 1The two disagreed on almost everything except The Condan-Wadain Law was bluntly challenged, and ig- their opposition to compulsory arbitration. On that subject, for nored, when subway 1notormen went on strike, for example, Mr. Goldberg said: "Compulsory arbitration is not the answer. obtained an injunction eight days in 1957. The Transit Authority free economy and our free labor rctuined to work It is irncomnpati le with both our lirainst the strike, and the motormen eventually arbitration would have serious and dcle- But the Act was not movement. Co:npulsory without arhlmaeviing their avowed objectives. 'ects functioning of both labor and industry.' Mr. to return to work tcricus on the invoked, and mot of the strikers were allowed "join with management im discouraging Only their leaders were Peterson urged labor to withoutt any meaningful punishmrient. in the settlement of labor disputes and rules, and two-were government interference tried, under Transit Authority departmental - 10 - 21 22 liter dishlargod. Not cvcn this form of enforcement ws taken by the C'y wh" .00 school teachers struck in the Fall of 1960, or to emphasize the problem of enforcing a restriction on strikes, wn, aI0,000 fuimer Secretary of Labor James sacation m1n quit work for three days a few wccks P. Mitchell, in a speech not ng e lr her. - a;o on compulsory arbitration, said: '' t itlhough conipz/sion was introduce le innte ?d.Icrlir of the Condon-Wadhin Law and other in o!her countries to similar c,:d s1riles, it cul not end no-strike s'alutes lies in its failure to balance the harsh (1hen) . Wha1 you fnd, ins/cad, is a rigidity of its conswfn? rawh of hit-and-run lrikes, day-long x:1nishments with a remedy to provide a forunm sf0 j/age, Slow- where the lons, ec. Lhese are lcbor's way of violator may be heard on the. very issues mhich would proesling what Ikey hh:nk impel him to strike. That, of course, is the role compulsory'arbi- u,;: air decisions fr1-ow goz'rc1 nc'. 'y ie /ine they :re dragged trat ion i1:10 co'rt for s/iLing, is intended to play vhn it is used in private emiployncnt. They are not on srihe . .. unuil the next This d(!CeClCy fn Ia), n/k/ i s!-1r/s /1 Over the l \V was recognized in a conference of Re- ag'4n." (Italics supplied.) pushlican State preparing for the 1961 legislative session. \v'hile reaIc C. n trir Sujpport of the controversial Condon- T:'c rtAbility of Covrnn'cr;:ent Co;:rol 'h-i La', thi-y lioted 1h1 t "there has bcen an apparent rc- OrCr Prices 4dm Wages, lee no" by Icl unts of government to invoke the law because of During tIhe nationa11 campai :n, both President Kernned a feeling t u ,i t Cs should 1 and be acconpanicd by adcpUnte Former Vice Preside-nt Nix -n rie 1ae e pIain their Op- irtn to cion- im rce ru : which the 1.1w does not prescit!y contain." pIulsory ar bit rat on. Mr. Nix(,n1 ;1sertCd t llt the anii c Cs involved aor that raon, Q awrecd l o do Their pait to umcnd the by law linl mfosinY s clh ceaa lion "far Otvih any t, onar ad- setting up L1r-,Circ, nachi cry for public cmploy ces VutL-w c it --u- t 'ae in cng' the abuse by rnla re-t cr Lcor of The NV r I aor DisputIs Act, which authorized seizure of power wIch n'y jopardize the pu blic interest." a pant in-talt or ):n by the President dhiring World War 1,, care- "On c the O'vennr eint ts i to tie bin:- leSs of fixing va fully exempted a ywc from gc-s beig accsed of Wolating the law or workins condtions, 'by it imi bly begins Ixin:; ;-:ricC.S ']is reason of ls Ii ving c"'ed work or having rcf' sed to continue "OUhl create a vicious ci kl that could destroy twe collwtive to v-O k onr to acc~ri c-ri'.'I( 1n t. 1,!1,t,( It pi' iC d th t when- bargaining-- nd along with it, our roductive free enter c \er -2ny plirt, mci or facility' is in the possession of the uy inm s w k.no v it. ;oveimimnt, -i a be unlaw.f lF for any person (1) to coerce, instigate, induc, conspire with, or encourage any per:,on to inter- Prei t K-enndy pointed out that he feels coinplilsory lere, by arbitration cannot Ic out, Si Tike, sitdown or other mitelruption, with the Ie reconiled with a free cuterpr-i- economy." Like operation of such plant, mine or facility, or (2) to aid any such 'Mr. NixGn, he emplhrasized th:t "a go':rn-niclt ubi Ich under- tok to lodkout, strike, slowdown or other inmcmgraption intel ferin g wh re ulnte wages anld conditions of enmpIloymcnt by comn- the operation of sac h plant, mirne or facility by giving 1I1-cton or pi1l Ory !rhtr ion would soon be coipellel to re;ulIte prices and g id ance in the condo uct of such inter ption, or by providing Other Aliments of our economic system." finds for the cndi:ct cr direction thereof or for the payment of E-n to-Prry G-'Alw ah r, in his recent - 0ok "Th- Cenreence strike. niamplnovmrent or other LencEts to those panticip. of a tiig Co se r'tive," arrived at a similar coni---, therein." --but by a rnmt roe. COnceding that "e my to (lch unions' I-oe.r 13 thccr words, the law sought to iinobil ize strike action is for th~ e 'n r nm-i to di te threuih cOmpulinIry' ri-irr ion w1it{out, the tumns at th 1e Ser.o t;e, i i i a lim tat iO 0n the s pecilca ly of e ploymct thronghout an Centire indutry," he nver- tKI CS ('Ap'CSId prot eted ri:.U ht of an indivi ull Cp Lye-C to !Cfuse to work. And hk-j i Mdist ste f 1r sucl a t "i m Opposed w0his CU re,. hle said b'ecause it simply transfers cconnmic - 11 - 26 25 chllllenged former Vice President Nixon to clarify his stand on 9. The Case For Compulsory Arbitration issues of the day, Governor Rockefeller said: Despite the force of the arguments against compulsory arbi- "I believe firmly in the democratic process of collective bar- tration, the campaign for a law to impose it is kept alive by the gamng, and I am firmly opposed to automatic or general use of fear that a particular strike, or a series of strikes, may precipitate a compulsory arbitration. Yet 1 believe the President should be given discretionary national emergency which neither the cooling-off provisions of the authority to use compulsory arbitration if an Economic conflict Taft-lHartley Act nor any other existing device could solve. reaches the point of clearly endangering the national welfare Briefly, Taft-Hartley now provi des for an SO-day anti-strike and if all honest attempts of collective bargain- ing, mediation and arbit injunction if the President finds that a strike, or the imminent ration have been exhausted." public welfare. The theory is that threat of one, may imperil the Without specifically mentioning compulsory arbitration, luring the so days, 60 of it to be spent in collective bargaining and Adlai Stevenson seemed to lean the same way. In a speech in employer's the reinaiing 20 in polling employees on accepting the New York on Decemher S, 1959, the two-time Democratic last effcr, the dispute will have cooled down enough to make an standard-bearer said: agreement likely. "The President should have authority to convene a special But what happens if no agreement is reached during the 111/2 board---a Board of Public Responsibility-well in advance of the weeks that a Federal Court injunction is in effect? By statute, the strike date in any key industry....-Its effectiveness would be to the court which issued the no- Attorney General must return immeasurably enhanced by the parties' knowledge that the Board's be dissolved. 'IThen the President must strike writ and ask that it final responsibility, if its efforts at mediation should fail, would make a report to the Congress, with recommendations for legis- be to recoimenld to the President what further action should be which neither the courts, nor menia- lative action to end an impasse taken . .. (including possihlv) that the President be authorized or even the White Ilouse, with all ton agencies, nor the parties to require in one form or another that production be continued were able the prestige and influence that the President commands, while the dispute was resolved by reason rather than by subjecting to ease. the economy to grievous injury. . . . When the public is denied Here is where advocates of compulsory arbitration cme alternative sources of supply it is entitled to demand that the in. 'Ticir remedy, they say, is' the only effective alternative to a supply not be shut Off." renewal of the strike that the court enjoined in the first place. Certainly, they point out, another injunction cannot 'c issued, because such a step would be tantamount to forcing employees to re-main on the job inefiiitely against their will without settlement of their complaints, a judicial maneuver which is obviously un- con<:t itional. Nor is government seizure, they say, a better soluti.n. It may end the strike but it does not settle the dispute.

This laves compulsory arbitration as the only practical 1ltcrnative. say its exponents, some of them persons whose views d(_erve :erous consideration. Perhaps the most outstanding of these is NLw York's Governor Nelson A. Rockefeller who, during the steel strike. called for compulsory arbitration of national emrency dIutes. \gain, on June 8, 1960, in a >tatemnC nt which - 12 - 27 28

10. Compulsory Arbitration in Federally a fact-finding board, while railroad unions are free to reject them. Regulated Industries Allen P. Matthew, a specialist in transportation law for more than forty years, said in a recent three-installment series of articles in One of the most telling arguments against compulsory arbi- "The Traic World," that obedience by the carriers to provisions tration is that its use will inevitably lead to price controls. Some of the Railway Labor Act has "played a large par t in contributing industries, however, are already price-regulated, and in these, to the burdens and difficulties of the railroad industry." public utilities such as railroads, local transit and power, light and The chief trouble, so air. Matthew says, gas companies, t]e opposition to compulsory arbitration is not as in proposing swcep- ing changes in the law, is that a sort of unilateral heated as amon unregulated industries. In fact, the constitution or one-sided of the largest uni:en of bus and transit workers, the Amalgamated compulsion exists on accepting the recommendations of the Piesi- dent's emergency board. The railroads feel, Probably 1-ecarsc Association of Street, Electric Railway and Motor Coach Employees they run so vital an industry and are price-regulAted, that of America, repires its locals to propose arbitration before a they cannot afford to reject recommendations strike may take plc. '11C Transport Workers Union, representing of a board appointed by the \White house. The unions, they contend, almost 40,000 s'_-wanymcn and bus workers in New York City are not so bashful and often turn down the recomlmenldltins alone, has frequently accepted voluntary arbitration to avoid a after the carriers accept them. Thus, from a practical strike. The same is true of many transit companies throughout dollars-and-celts standpoint, the recommendations made by the emergency the country. board become cc the floor for further negotiations between [lte railroa Is and the unions. America's railroad and airline industries, both of them price- Ar. Matthew feels thit, once the board hls rcp itI,) its regulated, have a special law, the Rail.ay Labor Act, to handle recoiniendations should be binding on both sides. This is oAm- their labor disputes. A cumbersome statute, the Act sets up the pulsory arbitration, no matter what other name anyone chcoces foliow1'ing procedures before management or labor may call a to give it, but apparently the railroass don t object, sin e ,hey feel strike or lockout over terms and conditions of a new contract: that (1) the unions should be subject to the sane coimpulsiun the carriers believe they face Either side must give at least thirty days' written notice to and (2) the railroads aC arelady sbjcet the other of an intended change in the current contract. If nego- to price control, in the sense that their tariffs nd chairges are tiations then reach an impasse, the National (Railway) Mediation regulated by the Interstate Commerce Commission "s Vell as-i state Board steps in and tries to make peace. If this fails, the Board agencies. attempts to persuae - the parties to agree to arbitration. If this James IM. Syme, President of the Pennsylvania Railroad, step is rejected, the Board then notifies the President, who has America's largest rail carrier, specifically advocated comlifsory the power to name an emergency board to investigate and report arbitration last September, at the end of a 1 2-day strike on his on the dispute, milh recon:nc'nda:ions for a slctmecnit. Strikes, lines, with this explanation: lockouts or other changes in the existing terms and conditions "It has been nade crystal-dcar that strikes cannot be per- of employment are banned for a period of 30 days after the mitted to occur in a related industry upon v. hich the pu-l ic board has made its report to the President. depends so icavily for essential transportation servics---and That After more than thirty years' experience with tile law, the Congress should put an end to thel by re< ui ing bin ng a IaI- trt-ion in the railroad ndustry. railroad industry feels a thorough overhauling is rieeded because, We are dilferent fiom mlOct ill- railroad officials say, they have been put into a position where they dustries. We provide a public transportation service, and sasp-cn- sion of operations directly must, as a practical matter, accept any recommendations made by and ilmmediately afccts the welfare; and - 13 -

30 29 11. Compulsory Arb station in State convenience of millions of families. We are different, too, Regulated Industries because our prices are controlled by Government." A. Types of Statutes A similar stand for compulsory arbitration was taken in January of 1961 by the American Tnicking Association, Inc., Aside from the \Var Labor Disputes Act, experience in this which pointed out that its industry's routes and rates are fixed by country with compulsory arbitration has been restricted almost state and federal regulations, and that, therefore, its labor costs completely to the public utilities field. Kansas was the first among should also be fixed by government fiat. those states which adopted statutes containing compulsory arbi- tration features. In the unrest following, the First \Vorld War, the Kansas legislature passed a law which forbade strikes and lock- outs in industries "affected with a public interest," which speci- fically included the food, clothing, mining, and transportation in- dustries, as well as public utilities. The law vested an industrial court of three judges with power to fix terms and conditions of employment, with emphasis on a "fair" wage for workers and a "fair" return on capital for management. Violators of the law would commit a misdemeanor and would be subject to fine and imprisonment. Fourteen other states have regulated public utilities in varying degrees. Statutes in Florida, Indiana, Minnesota, Nebraska, Penn- sylvania and \Visconsin provide for compulsory arbitration of public utility labor disputes, with Minnesota limiting its use to cha ritab!e hospitals. In Virginia and Missouri, the Governor is empowered to 'seize public utilities where a strike is considered detrimental to public welfare, with strikes and lockouts prohibited during the seizure period. Hawaii can- invoke this procedure only in the case of disputes in the stevedoring industry. New Jersey's statute combines seizure by the Governor of public utilities with compulsory arbitration of disputes, while the Massachusetts law, in addition to providing for seizure, makes available to the Governor an arsenal of weapons that includes numerous approaches to emergency disputes, short of compulsory arbitration. The only compulsory feature in the Colorado and Michigan statutes is a cooling-off period, under which strikes and lockouts are barred during state-conducted mediation and conciliation pro- -,11d - 31 32

Ccedings. Hawaii and M ivnea have similar legishtion, in IThe circuit com ts in India11 :nd Florida. dIa rred their rc- add ition to the imetld seiu re and com:npulsery a rb'irat ion statutes sCtie stCautes iuncons titutronal on the grolinfds tluat theCy C( :1- taiCd the same defc ts as the Wisconsin law (.:Is/z!/ mentioned above. In I lawaii, for example, if an impasse is reached V S/;rJcer, CC11 Lab. Cas. ; 66372 (Ind. 1951); S/tct of T/orll, in any labor dispute between a. ublic utility employer and its cx rc/. Lee v. / United States Congress has supreme . . authority to legislate in this iheld of activity. supposed, s:nCe the adoption of the Constitution," the Court said, " "that the business of the butCler, or the baker, the tailor, the wood Ilawai1 has never deigned to sci:e any stevedorin g facilities. chopper, the mining operator cr the miner was clothed with such In the public utilities fild, cooling-of periods were imposed in a public interest that the fourteen prices of his product or his wages could cases from 1945 through 1919, but in recent ycus, the be fixed by State regulation" (C/.:/es 1Vol[ Pac.ing Co. v. Cotrt statute has not been enforced because the state attorney general's office has labeled of l,:rdlstra,; Reltions, 262 U.S. 522, 537 (1923)). Today, the it invalid. Kansas statute remains On the books , unused and inoperative. In trying to deal with public utility strikes, Michi~in has encountered Approximately twenty- eight years later, the United States legal obstacles on several occasions. The l.iw, in its Supreme Court in'.:!idatcd the Wisconsin law on the grounds that original form, provided for compulsory arbitration, but the .Mici igan Supreme Court declared Congress, through the Taft- Irtlcy Act, had preempted the field this section Lucon i tUt: onal (Loc'l 170, of regul .ting stril:es in ind.r.ies actingg connecrce," and that Trw:s/or: lor,'ers ULIion;, et :. v. Ga./o!.t, 322 Mich. eren public utilit:es ',lose acti':ities were confined to a single state 332 (19-1S)). Several years later, the United Stats Supre came within tile e!cnition cf industries "affecting commerce" Comlrt, relying on the doctrine of federal preempt ion, st cSthdown these ( A>inlgan'atei Ass'n. of SWuet, Elec. Ry. and Afotor Co.:ch sections of the law which dealt with strike votes and bargaiin- ing units Enfplo;ect, D:iinc 993, et . '. lvicco,;inJ Eie/K) n.'c1:, Re/a- (Ul et ; ' V. O'Brpen,.339 U.S. 154 ( 1950) ). In 1955, a io:slo.:r.d, 3<0 U.S. 333 (1951)) federal district court enjoined state officials frin imple- .14

- 15 -

33

ment in o the fact-finding and cooling-off provisions, because the there exists still another theory under which the courts could con- lubIic uitii ty in ('es on was in interstate commerce and, con- ceivably invalidate several of the statutes. I Ia'a'aii, Massachusetts, seqeCrntly, was under Taft-I lart!cy jurisdiction (Grand Ra/is Missouri, New Jerscy and Virginia all provide for seizure. llis C,,y Coic' /.in's, Inc. v. lIo-leI, 137 F. Supp. 667 (D.C.\W.D. would seem to contemplate loss of control by the rightful owners Micl. 1955)). Although the Court nevcr reached the issue of and temporary operation of the seized industry by the state, which constitutional ty, for all practical purposes the statute was rcgrded amounts to a taking of private property for public use. Of the as I:roperltie ind, in the last five years, thcse have been provisions five states m.ntioncd invoked oniy once. above, Only two make any provision for pay- mcnt of just compensation to the owners. 'The Massachusetts In Minnesota, imposition of cooling-off periods has been statute declares that the seized rlant vill be operated for the greatly curt :led since the Wisconsin decision. And despite the benelt of the owner unless he chooses to waive all claims to the fact t it the MInncsota Supreme Court approved the use of con- proceeds of such opcmation in return for "fair and reasonable con- pulsoly arbitr ition in charitable hospital disputes because the pensation'" for the temporary use of his property. In (letermnin g public has a direct and vital interest," (1ariewI osuital Assn. the amount of compensation, the statute provides that the state should ma ike v. P '/I-c D!dig. Srr, ice and hospital Emp/lo)ees Union, el a?., allowance for the Cffcct that a tlhreatened disruption 211 Lfinn. 523 (1954) ) Minnesota has taken advantage of this of prod action would have had on the ov-i'ner's business. mandate only twice in the last six or seven years. InVirgnia, the state compensates the owners of seized plants In 1953, the Supreme Court of Missouri defended that state's by turning over to them 35 percent of the net income of the opera- sCeire law on the grounds that the privi!cged position of a public tions realized durn th seizure IrrOd. But the statute provides utility inurcs "to the hcneth of the utility coriployces in the form furthe-r that the 35-15 -Cuelt si t is not necessarily controlling of greater continuity and sccnrity of jobs and compensation... . and can he challcngcd by either par ty as too little or too much. If The ciployces' duties are owed to the public though rendered a p ant has been struck prior to seci re, the prospects of a hish throul;h the utility. . . . Regulation by the state is necessary because p omrniit are dim, as illustrated by th follo'Ving lanuape of the utility service is not an individual but a community problem"' or 'h'cSt c':rt in Viriniia: It " etcs a goi;g concern at the time (Si/c of Misso;ri v. Local s06 07, C/1Cnic:i & Ato;nic Forkers' Of the taking. . . . (T)he prois that have been made [by the Int'l. Union, AFL-CIO, 317 S.W. 2d 309 (1958)). In line with State} . . . are not the measure of just compensation to be paid this rationale, seizure was invoked by the Covernor on eight the . . . company. . . . (t)he powv;er of the State to quicken into occasins since the law's enactment. The most recent example action an idle enterprise . . . shculd not be used to make money occn rrcd on Augmust 5, 1960, after an IBEW local had been on for the owner that the owner could not have made himself" strike for 2- days against the Kansas City Power and Light (iln1cson v. Chesap'aeke berry Co., 186 Va. 481 (19-17)). Company. As to the d(iiration of covcrnmccint intervention, the Signficantly, although the N: a' ersey statute contains no Chairman of the Missouri State Board of Mediation said: provision for compensation, none of the New Jersey companies "\Vhen I c:11n mediate a settlement of the dispute and net a to V.- which the statute was applied wore operating at a loss at the cd ::ract 'I'r.nd, rem vin athe cause of the strike, we w\ill terminate timn of seizure, and no claim of con.pcnation was ever made. But the senii:ure, but net before" (letter to the author, dated Nov. 16, New jersey has had problems in other areas. 1( 60). In 1917 the act set forth severe penalties for willful viola- In addition to the constitutional problem of he process and tions, but such an outcry was raised wlien three people were the le; I barrier erected by the (ldlruie of federal prcecmption, pmro'cceted in connection with a strike hcn in progress, 0h1t the - 16 - . .35 36

act was promptly amended by eliminating the penalty of imprison- 12. Comnpulsoiry AriItraiO in ment and reducing Iile amount of fines. Foreign Countries Several )cars later, the statute ws\'S struck down by the New The experience of other countries with compuleoy Jersey Supreme. Court because there were no adequate standards arbiaicn to as a weapon to outaw strikes reveals the same types guide the arbitration boards to be appointed under its terms of probernhs (Neu that we face. Australia and New Zealand are usually hcld Jersey v. Tragic Telephone Worters' e2crition 2 N.J. out as c>amplcs of places wliere conpulsoiy arbitration has worked 335 (1949) ). This defect was immediately corrected by a special ex- tremely well. But the fact is that, ahhough session of the le;islahture, and the amended version was upheld strikes are prohibited under certain narrowly-restricted (New Jersey Ic/I Tel. Co. v. Connunticn/ioslliorECrs of An;er- conditions, Australasia has as ira,.5 N.J. 358 (1950)). many, if not more, strikes pcr ca-pita than the United States. During \Vorld War Australia 11, had so many strikes in so many IIowever, since the Wisconsin decision in 1951, of Its war production centers, the constitu- includin, steel mill and coal ii ws, tonality of the Ncw Jersey statute that the government became a matter of consid- clam4ped a political censorship on strk n' erable uncertainty. Consce cuntly, it has not been invoked, except being cab led abroad. The then Prime Mxiister, John Curt, tcid in a token manner, since 1951. one American war correspondent: -"\e don't want our al!ici to know that some of our peop!ecare slacelers." This situ :ioo 're- In 1954, a committee was created to make an intensive study vailed during a war fought fur alinet two yeais on Austrai in of public utility disputes and to report its findings and recommuen- territory dc-spite tihe existence of numerous saud dations to the Governor. Tie committee found that the incidence tionls: f nes, ll prisonmlent, and suspension of registration (t e ofTc no Cs. of public utility stakes had risen since the passage of the New is no longer entitled to Cou t enforced: t of ar Jersey statute. In recommending that the state discard its present for those who defy the arbitration court law, the Majority Report stated: Tie s id ri of course, were rarely invoked. "Not only do we doubt the ability of such laws to do food, A major wekeSs of the Auistralasian system has 1-ci Its but we beeve that they have actually done harm. The' clearly tencdncy to encourage lengthy ligation, whichV'Lo ci impair the efTorts of the parties to arrive at k agreement through months from the date of the initial collective bargaining because hearing to the date of the of the belief that the substitute de- award. Aioreu\er, vices of (le law according to a study of the Austnlian labor seizure and compulsory arbitration] will probably courts by M ark Perlman the system of basic ages cstabli'led by be used and that any concessions voluntarily made 'will simply the court tends to flatten out wage patterns by gi\in g unskilled serve as the flocr or the ceiling.... " (Report to Go:m'u nor Robert labor more than a free B. Afeyner, 19 , p. 19). bargaining system would achieve, and leveling down the more killedd to compensate. Six years I-or, Allan \Veisenfeld, Secretary of the New Jersey Commenting on the operation of the Australian State Board of iaion, observed that failure to invoke the labor Cert, New Cyrus Ching, former Director of the Jerse' law had posed no problem. lie FederA lMediation and Con- said: cili.t ion Service, noted: "We have found that we can live with disputes in utilities, '-Te lb1sor coust i, in fact, coinulsory arbitration, this Further, we have found that if the parties are not assured of some an - d -eta h e form of 'St.ie intervention our chances of mediating used aiSly, if ever. It is not free a settlement enterprise, it isn't free lal'cr, are enhanced" (letter to the author, and it isn't free 1n,1a m'itnt (R- dated Nov. 15, 1960). sricw; :u1 l/'ct/on, B. C. Forbes & Sons (1953)p. 119). - 17 - 37 38

of Labour now makes available to the ties TIe practices in various countries on handling potentially pai government concilia- tion and arbitration services only upon request. large-scale dangerous strikes differ widely. ThIcy vary, of course, with the For strikes threatening the nature of the political structure in the particular country. national economy, Britain may invoke a court of inquiry, vhcne-ver the Minister of Labour, who names On a national level, Canada provides machinery for concilia- the court's members, feels the step warranted. After hearings, the tion and voluntary arbitration of labor disputes which arise during court issues a statement of findings and recormmendations. Since the course of contract negotiations. But cach province has legisla- recommendations are niot binding, the government has to rely on tion prohibiting strikes and lockouts during contract negotiations the pressure of public opinion. In practice, the reconmnendations at until attempts conciliation and voluntary arbitration have bcen usually form the basis for settlement. In extremely critical strikes, concluded. Other than a cooling-off period, there is no compulsion the government can petition the Qucen to proclaim a state of emer- included and no outright ban to block a strike after all peacc- gency. The proclamation empowers the goverrlment to use troops making moves have failed. to replace strikers. In France whcre, (lue to extensive nationalization of industry, Japan has c)npilsory mediation and arbitration for disputes the gus crnmunt's role has often been that of an employer, the involving employees of the govcrirn-nt or of government- cOvernment has exercised its power to Seize struck plants an( to crntrolled corporations whicl comvpcte wth private enterprise. draft ci kers into the arnied forces when walkouts thrcatcncd the In the private sector of the economy, the law provides for con- national economy. As recently as June, 1959, Premier MiChel ciliat ion, fact-fuinding and voluntary a rbitration, vth the assistance . Deare called for drafting many thousands of striking railway of a labor relations commission. If public umtiitics or the public w\rikC.rs into the armed services. But the order was cancelled welfare are involved, fact-finding by a tri-partite board, with non- because the strike ended before the directive could be put into bindinig recommendations made public, may be initiated by the eTect. France has frequently used troops to maintain during a Commission, the labor minister or the governor of the area where sti ike what the government considered essential services, two out- the dispute arises. In public utility and national emergency standing examples being the use of Army trucks to replace Paris di>putcs, there wvas just a 30-day cooling-olf period, but in 1952 buses iled by strikes, and soldiers substltutng for strjking garbage the law.' was amended to give the Prime Minister the power to collectors. enjoin such a strike for 50 (lays. After that period, however, the Great Britain's experience with compulsory arbitration of stoppage imay start or be resumed, with no conip ulsory settlement labor d(iputes goes back to World War I. In 1918, a Parliamen- rcqiuired by law. tary Committce reported that "the experience of compulsory arbi- In much of Latin America, strikes involving the public wel- tration during the war period 1has shown that it is not a successful fare are generally barred. In Brazil, walkouts are prohibited in method of avoiding disputes and in normal times it would un- "essential industries," public services and government enterprises; doul:tc iy prove less successful." Despite this flat indictment, a Supreme Labor Court also hears important union-management cumpubury arbitration was again 1nttoduced by the British Gov- disputes and makes assards, agaInst which a unron may not strike er1nent in 1910 as a wartime measures, long with a ban on without the court's permission. trikcs and lockouts. The 1910 order 'as continued for five years Chile has a system of compulsory cencihation, with arbitra- until it wvas rep!accJ, it 1951, by a new after the war ended, tion mandatory in public services; all strikes against the govern- guvernmnut direcive which pcimitted strikes or lockouts and ment and public utilities are banned. \s widh Crated the Industrial Disputes iribunil to arbitrate dis- Colombia in dis- putes referred to it by the Minister of Labour. In 1959, compulsory Compulsory arbit ration is also in.effect in putes 'nvolving public services, but there is no ban against other arbitrat :on was banished from the Briti:h scene, and the Mbnister - 18 39 40

strikes, so long as they are conducted peacefully, are non-political, In Argentina, members of 113 different unions participated in a and occur within prescribed time limits. costly 24-hour strike over President Arturo Fronrdizi's veto of a bill increasing severance pay. Brazilian seamen, railroaders and Costa Rica, too, has compulsory arbitration in the public poit workers, all employed by the government, struck over a wage service field, with strikes in agriculture also banned by law. dispute, and in Chile, a one-day general strike tied up the country In El Salvador, public service strikes are illegal, with concili- after several demonstrators were killed in a campaign cdiin2 for ation and arbitration compulsory. The law also states that all other higher wages. strikes must pass the test of "for a lawful purpose," which has In the Philippines, the constitution provides that ''the State been interpreted to outlaw sympathy strikes. may provide for compulsory arbitration." In 1936, a five-man Guatemala has compulsory conciliation, with an unusual con- Court of Industrial Relations received the pow' or to use the stand- dition added: if no scttlcment is reached, failure of employees ard of "justice" and a "fair wage" in arbitration, to cnain strikes to strike immediately is regarded as an agreement to submit to if such a step was in the public interest, and to decide whCther binding arbitration. The law also grants double pay to employees an employer could replace a striker. In 1953, with a baklog of where a public utility Cmployer is found to have caused a strike 1,583 cases pending, the law was amended to limit no-strike and the union has provided enough workers to prevent an emer- injunctions to prevention of vio!CncC or fraud, and to deprive the gency. couit of p0-w-r to dictate vwrges and conditions of cmplisyinxt, except where the national interest is involved and the President Nicaraguan law calls for compulsory conciliation as a general Thme 1933 amendment said tb:t true policy, and for compulsory arbitration, plus a strike ban, in public of the country so certifies. achiccd by compulsion of la' .. . services and entcipriscs serving the public interest. All awards industrial peace cannot be . . on an c '1- are binding for at least six months. [andl sound stable industrial relations must rest tially voluntary basis." In Panan, compulsory conciliation is the pattern. It is sitiiatmcn -on couthmu l ory ar, :tmanu in handled by a panel that can issue binding awards, if th ey are IHere, in bricf, is the arbit of laia .r d is- unanimously approved by panel members. other countries: Pakistan has conmpulsory ration putes before an industrial court if government ceni!iat ion fails, Peru has compulsory conciliation and arbitration, with strikes as well as an absolute ban on public utility strikes. Denmark has barred in public services. The law calls for monetary penalties a ban on strikes followed by compulsory aiitration in the case against the side deemed by the arbitration board to be at fault. of national emergency disputes. Sweden's approach consists Cssen- Venezuela also-has compulsory conciliation, with the Labor tially of government mediation during staIc mated con tact ne;oti- does exist and Ministry cmpowered to order binding arbitration. ations, although compulsory arbitration machinery could be employed in serious national disputes. West Germany Uruguay and Mxc::ico provide only voluntary steps for avert- offers mediation facilities, if the parties requcst them. The Unitcd ing or ending all labor discord, altIhomigh the Mexican Constitution Arab Republic bans strikes pending conciliation and requires would appear to make arbitration Comrpulsory. compulsory a iitration if conciliation fails; collective bargaining A :.tudy by A dolf Sturmthal on Latin-A merican labor affairs contracts, incidentally, are binding there only if registered with the for a Senate sub-committee asserted that, despite the laws, almost government. every. country south of our border has had a general strike or a wave of strikes in r.:ent years. As recently as November, 1960, Argentina, Brazil, and Chile were the scenes of large-scale strikes. r-

0

- 19 - 42 41 or by the mediators. If the dispute remains unsettled after sixty W~X.ayrS National 13. Alternate of HLndul;g day;, the board of inquiry then reconvenes and reports the status Emerelency Disputes of the strike to the lPresident. This report is then made public, thC National Labor Relations Board follows up by conducting Althou h there is no overwhelming demand for drastic and a secret ballot among employees to sec if they wih to accept thc changes in the law to eliminate strikes generally, there is wide- employer's fmal offer. Tlic injunction must, by law, be dissolve, spread support in many circlCs, particularly among public and os ernlemnt spokesmen, that "something" be done about the so- after S0 days. been invoked 17 called emergency disputes, or those affecting the national health The emergency provisions of the law have Truman and the other or safety. What this "something" should be is a highly-debatable times since 19,7, ten of them by President writ was issued in March, point, chiefly because the experts realize that the prospect of a sevCn by Presidcnt Eisenhower. The first AFl costruction strike, or the outbreak of a strike, is a major factor in making 1918, amd it aVerted a str;,:k threatened by atomiC center. The dISpute was ce:9ective bargaining work. unions at the Oak Ridge, Te'n., Nettled a wcek after the injunction expired. 'the public, of course, is far less concerned with what it the act in a ronsi is the abstract value of tihe process of COlective bargaining On March 15, 1948, President Truuan invoked doard reported than it is with the conomic disrupton and the possibility of grave meat-packing indilutr}iy di!SpltC. lI s fa't-finding ag'.inst the ntiona- .a1n.1eto the nation from a long strike in a key industry. to him on 8, 19ilarch thlt a p te:ial threat miglht be crcatcd, but no writ 'as issued, and the strike I his sense of InsCcurity received its greatest i:,petis from the welfare following June 5. steel strike. While the settlement of that dispute ls temporarily was sCUled the an unucilred coal mine allayedI thCse (cars, contined dtscuSSion of the stceI tr houdi- The third use of the act involved all through March, 1-9.13. ela thatt.tes they have not i-; 1'pCarcd. 'The I 'vln is still sqtie t'at plagued pit operators L. Lewis and the miners on prevail iutnthn Taft-II'rtlcy, the only oreial injunct:en \\ as issued against John it. Te strike ended pm;Cedu re now on the books-for dcan, with national emergency April 3, and both were fined for diseleying disputes, should be passed. I t us ce-n-idcr just how Taft-ITattlcy on April 29. arbitra- induced works ::!id then the altermative ways, short of compulsory A strike threat by long lines telephone workers being considered. board on M.ray tion, which are currently Prcsident Iruman to name a fourth fact-finding em pa ny 18, 1 9\. No junction was sui'ght, and the uion and ..The Tarft-ilar11cy, Appro~ch setcld their dispute en June 1.1 vitout a strike. T strikes lTbc Taft-I Tat icy Ac t provides that, whenever the President Injunctions against "ast and "N cst Coast maritime national strike was links a threatened or actual strike mW enda n cr "the were issued in June, 1913. The casern end of the . board of inquiry Coast long- helltth or safety , he hI.a s the powc to appoint settled within the 20-day cooling -off period, but V%'est the facts and out until to in lig!te the di.lte :11nd1 to report to hirm shorcinemn went on strike n September 3 and remained it may be u- vitil i) uf the p.atic-s. TIis board, howCver, :1lke the National an aurcemerit was re-ached on November 25. Congress, rccon:me21 Ol. (Rai'a'. ) edition Board, cannott ;n ae noted, took no action to end the itoppage. the Pre 'a+iint di rects the Attor- t ion r c Tt of its factual reort, by Mr. Lewis in mid- or stop the strike. Another coal strike w.-as threatened hey GeiCi. to ask for an injunction to prevent Truman, but June, 1918, and fact-finders were named by President iilucti(;i is issued, th1 i ' ts must attemlipt, w\itl an injunction was Onc the inj an agreement was reached en June 21, before tuecr disigrecinent, although the ail of fc dera Il medlia tors, to s(til lanled down. neither siae is coenp lle'i to a c-pt any proposal made' by the other - 20'- h -' 43 44 On August 21, 1918, an injunction was issued to block an Another ijunct:on was issued on May 15, 1957 to blrc: a East Coast longshore strike. The full S0-day cooling-off peiod strike by members of the Oil, Cherrical and Ato-ic %Vorkers was observed, but no agreement was reached. The day the writ Union at was dissolved, the dockers went on strike, and remained out until an atomic energy plant near Waverly, Ohio. Exactly 80 days later, on August 5, 1957, a new contract November 28, whefl they settled with stevedore and shipping com- was signed. panics for a substa:tial increase. Tie East Coast iongshoreenn were once agin cnjoined in On February 11, 1950, another injunction was issued against October, 1939, and their dispute with employers was settled a coal miners' strike, the second such stoppage in five months. before the writ expired. Mr. Lcwvis ordered the miners back to work, but they stayed out. The Let injunction, issued eIn October 20, 1959 in tle 1 6- On March 3, President Truman asked Congress for authority to day steel strike, was taken by the un inn to the United States seize the mines, but before Congress could act, a settlement was Supreme COUrt, wWIeh upheld it u::: Nove obor 7. The union rEnd reached. tie steel compa nits reached agreer:>nt on J3aanary ., three we :s before the writ An injunction hated a copper strike on September 5, 1951, was to have expired. a withn i:y 'ys .l companies involved signed contracts with hid Thus we see that of the 17 oce<:rns w.i'n hr cmnl r-0m the u nions involved. provisions of Taft- ITartley wec- insohel, a strie p-rsrild in Simail y, an mination haled a 3 -month stcclwoikbse seven r:tanes after sever ntcve:l. hin l cr a n. strii> in 19e e 19, at the A merican Locomotive Compalny nvr P In ncc n, at no tun see tch 1 ws pan: w pdaut produce, 1i v:''cw ns eqpirpmnt. Jie dispute was sCt- dent Truman 's veto, in 191 / d the Wrn (Are,; Kje meo' ed tied bC fore the imj-ct:on CXqurcd. unddr the final proven of the emerency strive 1.. 1on: ti ' t Presid it i' nhower firt invoked the act on October 1, 1953 take action recomme nde to it by the Piesidcnt to halt an S C(o1st lon hofcm en's strike . When the writ expired en 1 imbI r 24, strikes bue out In several poris f urn h. TJ'e Sr Ci) Ior 11' Be'i' iorne da Maine to lorida, and it took miure than a year of sp ralic bar- the unpiecdcaNted wave of concern over To t t.' str :e gaiinig f( I Ie an ageemnt was icaced. which has stinulated cries that "sointlnf'le ihm to pr nt

On July 6, 1954, fact-Findcrs vre Inad in a threatenedw a repetition of such a stalemate, is best illk'rat'd 1'y t0 AIl strike at 2t01ic plants. Tie Prcsidential board found that of a special committee of the National Cu:mcil of Chur.0Cs, "Vich nO \\aukout uas inmnent, and so reported to tile hie I louse. ,was mentioned earlier. This renrt w\'.s5 issued o N 'imbhr 25, The dispute was settkld and contracts were signed on August 18. 1960, ImOre than a year after the strike wxa. Il IKd} 1:? Tft- lIartley Act injunction. Authored by a 17- rnn0,ro-'p in 2 1 V C1O mci I bers in atoinic plants hnd been on st ikC for four Charles P. Taft, former Mayor of Cincinnat' d' . r tie days in July, 1951. On August 11, they were enjoined from late Senator aft, the Councils dcenIcnt s" 'sds09 mr a. striking mn c n' tion with the AFL' d'kute. An aoriCecnt was set ip by the Taft-I11.;:ley A t cals the nepgtiamtd on Nexmnber 7, a wec: after the inmjuncton expired. PrOVils anl R: &V, 1. mont of new" courses for the Presidert to us, t cops wih On Nox Liilcr 16, 1956 came another East Coast dockers' potentially .n croius strikes. strile, and o 1in1 iniunction was handed down. An agreement MAny othmr s'ra stions, Mth drmn' anJ m I was gu'tidatCd FWir days after the injumilton expired in l'bruary, have come fors a rd. Practically all 1o1t Mut, as dns the Co:'nells 1957, althiolui s :nc lerlg lunrlimnCn struck aan. report, that the i Qt to strike should be prese ixed,' tiis I:y - a - 21 -

15 46

rej-eting cmpulseiy arbitration as a sUlbstitutc for strikes. Tie 5. Finally, the President should be given his most important Conned's report ci'11 ifeinOs, however, tlht "our society, though power in explicit terms---the power to do nothing." m aInl tainirg the Olsic riit to strike, has advanced to the i:t where vwouk :sto'Pages will incrCesingly be felt to have out- The objections to third party recommendations are based 1ived their uscfulnc:A. it then asserts that the SO-day injunction prinarily on the view that, like voluntary or compulsory arbitra- procedures are mindcale and should be revised. As a cure, it tion, they will tend to stifle collective barmlining. Of CoursC, the pronoscs Jovcernicit mintervcntion "in some few situations to fact that the President night not choose to use this approach prctcct the public iitcr"t. It then puts forward the proposal, would eliminate, to some extent, the adverse effect this has orl likelise recently al vIanced by several leading experts in labor collective bargaining, as experience under the Railway Labor Act r 'utio'st hi thcic :.lm"Id be an assortment of possile procedures has shown. During the presidential campaign, President Kennedy or the r-s !Cut t,) ii, with neither side nnov g i advance and former Vice President Nixon agreed on expanding the Presi- Ai:h sRp will l: ten. The purpose of this of "choice pro- dent's powers to include authority to appoint a fact-finding board .ue, approach I:41 preserve t.e values of collective barga mrng M .ait power to make rccornmnendations before an inritncton is that y rinoving in ad-.iuw the stultifying impact on bargaining :o:nght, and it is highly likely any new legislation will include cOmIs With tie co lnty that.the dispute Al wind up in some Such a provision. l r: ?_ rmi: d wiy. But Presideift Kennned a C r. Nixon (I:isa-rced on this p 1iaCon" crable supnort, siithoujoh there is -J the u.e of seizure as one of the alternatives. fr. Nixon hat wn.e isi rca ent in to i third party rcco;mendations, Helieved i wcul be ii r tt n m . hefs arue inaddito11 that injurtlions, and scur 'e imcth:dd 1011n tie alternate t merely postponcs a solution without providln any red ( ':bl s 0:cn to t1: I Mr I. 0f :cir GenrCal Archibald settle- Cox, hit, :nhClh I , .-'' fur(C . , it toes nze the stri!:e one aphnt the o ernmnent a ,a, unIJ 55aier WoPr "emtnt Kenncdy ain Inor affairs, d c- And tlht'efore puts it on an entirely diU et bas s Lon a S ibT:d dhs 1*o,14h i an atidle on "Strihs aid the iblic private spute. It has also been urged tiht seizure mayidi be pplied I st whic h aiJ. A in the FCbIraiy 1960 issue of 'TIhe unevenly in different mndustrics. F-or exam le, public Iidities At1nnc Mtlhly . weoul make availble to the on Ihe choie he a shun narg4in profit mi rht f that.d sMure, rather thin causing Src irict lie decrib( d .is follows: a loss, may iiuV the companies to get a rate increase. ThCle, too, "1. Ie tle 1ridnt] might appoint a fat-finding board seizure mruans the status qIuO for labor and an economic formula with powfr to ncdi,1 and also to iace p blic recommendations for manra genient which will not necessarily be unfavorable. A Aor the sottlcment of (he dispute. constitutional question, mentioned earlier in connection with state seizure laws, nst also be considered: tliat of taking private prop- 2. A board of it' puiry night be appointed for the purpose erty for pubic use without providing just compensation to the of .ran,; 1 1Awl.Iy :aibiitration, or, ifthis fEi's, reportin to owner, ;nd this, in turn, poses the practical jrobileom of deter- tl. p--'h -le bl.:nc for inlplrAc:n; the national Iihd? or safety. Inm nno wng t constitutes 'just conpensaton."'finally, from the Si an in i< tinl fay be the only wy to .op a strike, JSVemment s point of view, enforc<:ment winI in all likelihod be clli the st.:':te sniOU .n1th rize the Preutidet to c llmn 1n injunction cult if, on an individual basis, employees refuse to work. for :s ln Is six mrn11(h1. TIhe public health and safety "re moe Prof.:>sor (ox, Condorsing the idea of seizure, said: imp rtl .t ih1nthe ights of either party. SSuch a step [seizure] woulI be as distasteful to employers 4. The Presih. it -honoud also have pov.er to seize and oper- as are inJunctions to unions, bult the very aim is to make presi- triil pmi afTcOctd by the dispute. ate the indu tiy dential itervention objectionable to both. Since strikes wvculd be ..san

- 22 " - 47 48 forbidden dining the period of government operatiC n, the Presi- mission. In 1952, the North American (lent should be authorized, but not required, to appoint an adjust- Aviation Com-)any "was the only maker of j(t airplanes ment board to recommend any Changes in wages and conditions for the Korean conflict. of employment for the period of Sovcrnment operation. The There are also industry speol-esmcn who feel that the elimina- parties would be under heavy pressure to adopt these interim tion of industry bargaining or sirmultancous bIargaiung in any conditions as the terms of the final settlement in order to terminate industry wouid ultimately hurt industry more than it would ec p the seizure, but the appearance and some of the reality of voluntary labor. They base this view~ on the inability of any OPe (injany action -vould be preserved. The pressure is less than under com- in a competitive industry to withstand a strie vihilc its CC,:-mpittors pulsory arbitration, v.hich I reject, even as an available procedure, remained at work. If industry bargaining were banned, th- 'cn- upon the ground that it would too easily become the normal panics in that industry undoubtedly would forfeit the ri nit to course." shut all of their plnts simlUltancously in the event aly onr cr1- pany is struck. 'le right comp-onics Chereare those, in addition, who believe that the answer to of to take this on h Len reccoOniz- y the Courts in a scrics of iml;: nt c.s's d lin national ecince tr ' is to !mkuT !nduitry -i' e barizaiiiin P with tle im instance of equal l arga inn p',O1 er for b6h 'ides. and wvith it e "i Ity of unions to strike -n en re industry, as in stel. They would this by Goldwater's do following Senator So the se''rch coNtinues. How shouhi p ti--o cw r o proposal to apiVy the anti-trunt l ws to unions. strikes ie h nd!e? T he in bi!;ty of anyone to Ce"'e up ri-h a

pat solution sa--s to ;i;:t it there may nQs 5)'. A On.- But this -ri,16: ' has st (ng pp i(tion. Sylvester Petro, a search nerethels! mUM and :adild -o professor at Ne. YOlk Unieriys Chv of L a, who has f- . Out of tl ',l' - writCn esX LivIey' in the ladr 1lations fied, and who has Stoidy by tlhe i:Cot minds ill Me C'n)fily G;1 v.Let to (iii o~ come at th s -( a gCretnr of e-n C-l exrcssed coilCcrn over union power, said in this re r:ard in a soe',e en e Of everyone November 1959 ar ltile in "i tune Magazine" entited "Can to d 'hevcr pN'ole to avi'd a Lin.,1n'I 1- Antitrust Cuib Union Power?'": ACtut ly, the CoUn y 1s not as wl ess : t -Ur r- . !e-nt of the c)?UlI :oS i ts-lm: n-t . T1W e is: -, i a .. 1 subm it"here are sounder and more forthrigit m1eanus , Y of puic (i'ao r(.ec'a .. of daingf w ithr union power than those cocinplated by ad vocates in ni to-' Cn)GOti '1n Co W11-- of the antitrust 011 oac h, and it'; with a national cmcrSency. While it has not (Ave so to ditc, i' ' of corollary proposition of break- ' would rnq}e Ki no way ing uni ns douu S int smaller u iis by government action." Congress atilpy if other of pr, tCti1m the nation cistc . In tie mea-in, the cOCIncl Conrn' seS Of course, there is no actual inistry- wide bar;;ainin i1n st("c'1, to be that stress mcu be pl' -ceon .he rc j-ons;ibilrty of t' ' even through iht of the major piioduceis and the union Larain themselves to viFd solutons th t wll asid govcmineit ein rd simult a neously and :arrive invarifl at the same trims. 'o fore- thus reain for lbor and rnsmsa-'::n. nt the ability to d'. r1:'ne close an indu try strike in steel, te law would have to dis lve Wags and w-oking conditions through pri ivate porgo.- Arnoi 'tn the interiationh union, hardly , pm:ctrical solu:tioi, and of (ls- Jot action s. tionablc constitutionality. surl.mitted Nor w'o:rld this prevent a national eIcmergncy as the result Rcspectfilly of a strike at one plant or against one imrpany. As Professor Cox ph;iint out, a strIlc at o; e lt of the Ancr ic.n ocinotive Fcb. 7, 1961 Arbitration COImipaly in 192-53 rut off the ntire app!y of nKIe alloy pipe Cox.cil used in the I; L:ois difausion plants of the Atomic Energy Com-