The Catholic Lawyer

Volume 9 Number 4 Volume 9, Autumn 1963, Number 4 Article 4

The Settlement of Labor Disputes in Industries Affected with a National Interest

James J. Graham

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JAMES J. GRAHAM*

W HAT TO DO after the eighty-day "cooling-off" period? Congress left this question unanswered when it added emergency dispute pro- visions to the National Labor Relations Act in 1947,1 and since then much of the debate about the legislation has focused on this aspect of the problem of satisfying the public needs during labor disputes in industries affected with a national interest. However, in the opinion of this observer, a more accurate or complete description of the problem should also make reference to the prevention of emergency disputes ab initio by removing the underlying causes of such conflicts. The legislation has not been amended since its enactment, but periodic labor disturbances, such as the recent resumption of the Atlantic-Gulf Coast longshoremen's strike following the expiration of the injunction procured at the behest of President Kennedy, dramatically illustrate the problem and, at the same time, tend to provoke re-appraisals of the effi- cacy of the current legislation. Surprisingly enough, in an area as volatile and charged with partisan and political considerations as labor-management relations there is a fair amount of agreement among both neutrals and participants on basic * A.B., Fordham University; LL.B., St. John's University; LL.M., New York Uni- versity. I National Emergency Provisions of the Labor-Management Relations Act, 61 Stat. 155, 156 (1947), 29 U.S.C. §§176-180 (1958). The statute permits the President to appoint a board to inquire into the issues in- volved in a labor dispute which, in his opinion, may "imperil the national health or safety." Upon receiving the board's report, the President may direct the Attorney General to petition an appropriate United States district court for an injunction restraining the work stoppage. The injunction granted by the court may last eighty days at most, after which period the work stoppage may recommence. The Act also requires the National Labor Relations Board to poll the affected em- ployees during the fifteen days prior to the expiration of the injunction, to determine if the "final offer of settlement made by their employer" is acceptable to them. 9 CATHOLIC LAWYER, AUTUMN 1963 principles to be applied to emergency dis- constitute an important and integral part. pute legislation. These principles may be This calls for improved private and public summarized roughly as follows: procedures and techniques, and above all, 1. The American system of collective for an increased measure of maturity ... " bargaining for the most part has succeeded Accordingly, the report places great in maintaining industrial peace; hence, stress on measures which, though voluntary, 2. The federal government should inter- seem designed to encourage greater accept- vene actively in labor disputes only in those ance of the concept that the public has a rare instances when the national health and real interest in major negotiations. For safety is truly endangered. example, negotiators should employ the 3. On such occasions, the enabling leg- services of third parties for mediation, rec- islation should permit the President some ommendations, or for the arbitration of flexibility in his choice of procedures to be disputed items. Labor and management employed. should experiment more freely with tech- 4. Greater emphasis should be placed on niques of fact-finding by jointly-appointed the resolution of disputed matters on a con- experts or by personnel drawn from their tinuing basis during the term of the collec- own staffs. The report urges negotiators to tive bargaining agreement; and finally, exchange freely data necessary for intelli- 5. Congress should permit the states to gent negotiations and to make joint requests assert jurisdiction over those labor disputes for such information to the appropriate gov- presently subject to federal pre-emption, ernment agencies such as the Bureau of the impact of which, however, is primarily Labor Statistics of the United States Depart- local. ment of Labor. In the light of these principles the The President's Advisory Committee also proposed amendment to the NLRA that noted its approval of a proposed plan by the deserves most serious consideration is con- Federal Mediation and Conciliation Service tained in a report entitled Free and Re- to make greater use of panels of mediators, sponsible Collective Bargaining and Indus- to raise the professional status of its per- trial Peace2 submitted to the Executive sonnel and, the parties willing, to partici- Branch on May 1, 1962 by the President's pate at an earlier stage in the more difficult Advisory Committee on Labor-Manage- and important negotiations. ment Policy.The Committee's report affirms that collective bargaining, when responsive Industry Councils to the public, or common interest, is an es- With an apparent view towards assuring sential element of economic democracy. a national perspective among labor and However, "the growing complexities of our management leaders, the Committee also own industrial society and the instabilities proposed that periodic conferences be held of the international setting now require that under government auspices, addressed to the parties recognize not only their own in- national and international influences affect- dividual responsibilities but their joint ing economic problems. responsibility to the society of which they Here, the report may be criticized justly for not going far enough. Even if the Com- 250 L.R.R.M. 11 (1962). mittee contemplates separate labor-manage- LABOR DISPUTES ment-government conferences for each one-hundred and ten linotype and teletype- industry, discussions concerning the cold setter operators by at least fifty per cent.5 war, unemployment statistics or foreign The answer then lies in periodic labor- trade may develop a greater concern for the management conferences, preferably with national interest among union and corpo- some government participation, on all rate officials but this will not necessarily re- practicable levels - industry-wide, regional, duce the number of major work stoppages. and/or on the plant level - designed to A supplemental statement by Judge Joseph resolve the precipitating causes of work E. O'Grady, a member of the Board of Pub- stoppages. The late Philip Murray, first lic Accountability 3 appointed to inquire into president of the merged AFL-CIO, pro- the recent shutdown of the New York City posed a so-called Industry Council Plan newspapers, agreed that parties to a labor during the Second World War for each de- dispute may have moral obligations to the fense industry, which would have provided public and should take the public interest for tripartite cooperation and periodic into consideration before deciding upon a meetings for the avowed purpose of increas- course of action which might have a serious ing production, -plant efficiency and of pro- impact upon the public. However, Judge moting industrial harmony. Walter Reuther O'Grady also stated that, "it does not nec- in 1941 proposed a similar plan for the air- essarily follow that these obligations... craft industry. The CIO endorsed Murray's always outweigh in the mind of a union ICP but, for the most part, such overtures leader his obligations in a given situation to were greeted with apathy even in union his members. The same applies to an em- circles.6 Philip Murray reportedly com- ployer's obligations to himself or his stock- plained at that time that the conservatives holders . . .- said his plan was communistic and the Com- The temptation to favor self-interest pre- munists said it was papal. sumably will be more acute the further re- Though Murray's concepts of social jus- moved union and management officials are tice admittedly owed much to the influence from participation in the conferences con- of the papal encyclicals, his Industry Coun- templated by the President's Committee, cil Plan actually was timorous compared and, hence, more subject to local pressures. with the "syndicalist" reform proposed by 7 For example, the same issue of the magazine Pope Pius XI in Quadragesimo Anno. that published Judge O'Grady's remarks Pope Pius envisioned associations of em- also carried a feature on the "push button" ployer and union representatives in the newspaper of the future. The Los Angeles various industries which would function as Times now has in operation automated quasi-official agencies of the government in printing devices which will utimately reduce all matters of common interest." In addition, that newspaper's present complement of commencing with the chairmanship in the 3 The other members were Judges Harold R. Me- dina and David W. Peck. Their report charged that SId. at 15. the printers' strike was not a "move of last resort" OSee Commonweal, Sept. 2, 1960; Commonweal, but rather "a deliberate design formed by the print- Aug. 14, 1942. ers' representatives as the opening gambit in nego- 7 Pius XI, Quadragesirno Anno (1931), FivE GREAT tiations." Editor and Publisher, Jan. 19, 1963, p. 58. ENCYCLICALS 125 (1939). 4 Id. at 59. s Id. at 150-51. 9 CATHOLIC LAWYER, AUTUMN 1963

1 1930's of the late Father John A. Ryan, lems. " the Department of Social Action of the But enthusiasm for the "continuing con- National Catholic Welfare Conference tact" approach is not restricted to union perennially proposes for America modified leaders. A study entitled The Causes of versions of the formula of Pope Pius XI.9 Industrial Peace by the National Planning The controlling principle, of course, is that Association has concluded that in every since human society constitutes a truly successful collective bargaining relationship social and organic body "the various forms studied, this practice (of periodic labor- of human endeavor, dependent one upon management conferences) was a main, 3 the other," must be "united in mutual har- contributing factor. Professor John T. mony and mutual support... ."", The com- Dunlop, of Harvard, has recommended that plex interconnection among the various the current bargaining situation in steel sectors of the economy, the obvious inter- should set a pattern for other industries to relationship between wages and prices, pro- follow; in Professor Dunlop's opinion, none duction and employment, profits and tax of the complex issues confronting labor- revenues, militate against the archaic notion management relations today can be resolved that parties to collective bargaining negoti- satisfactorily "under the gun of a negotiat- 14 ations can, or should be permitted to, con- ing deadline.' duct their business in "splendid" isolation. It is also noteworthy, on this score, that Ironically, in his own industry, steel, an important element in the maintenance of Murray's proposal won partial acceptance industrial peace in Great Britain has been in the formation of a Human Relations the establishment of joint industry councils Committee as a result of the bitter and in most sectors at the top level and, in some costly steel strike of 1959-60. The steel cases, regionally.', David L. Cole, a former committee seeks to settle all labor-manage- director of the Federal Mediation and Con- ment quarrels during the term of the con- ciliation Service, and a prominent arbi- tract, free from the emotionally-charged trator, recently praised another European atmosphere of negotiating sessions. In ad- nation, Sweden, for evolving a harmonious, dition, the recent settlement of emergency fruitful, and yet inviolate, system of collec- dispute strikes in the airlines and longshore tive bargaining. Government participation industries generally have provided for in- in Swedish labor-management relations is terim conferences to avoid future crisis." restricted to periodic tripartite discussions George Meaney has stated that his union, a of such matters as the impact of automation, New York City plumbers' local, has had cyclical stabilism and related items affecting only two strikes and one lockout during the the economy as a whole. Sweden has no past seventy-five years, primarily because emergency dispute legislation because such a standing committee of union and manage- ment representatives meets every two weeks 121d. at 186. to discuss grievances or common prob- '3 Ibid. 14 Speech by Professor John T. Dunlop, 52 LAB. 9 Id. at 151. REL. REP. 65 (Jan. 21, 1963). 10 Id.at 144. 1"See Lester, Reflections on Collective Bargaining " Speech by W. Willard Wirtz, 52 LAB. REL. REP. in Britain and Sweden, 10 IND. & LAB. REL. REV. 164 (Feb. 11, 1963). 375-80 (1957). LABOR DISPUTES emergencies have yet to occur in that coun- or lockout in whole, or "to the extent prac- try. Mr. Cole also singled out the labor plan ticable," in part, but in no event for longer established between the Hart, Schaffner and than eighty days. Marx Company and the Amalgamated In addition, during the emergency period Clothing Workers of America as a form of the board would be permitted, in the discre- labor-management cooperation which has tion of the Chief Executive, to announce served as a model for the American clothing publicly its findings of fact and proposed industry. Hart, Schaffner and Marx has had settlement recommendations, and also to no strikes for almost fifty years. 16 recommend to the parties terms or condi- tions of employment which should be put Amending Taft-Hartley into effect during the injunction period on a 1 7 While emphasizing the voluntary ap- concurrent or retroactive basis. proach, the President's Committee never- The President's Committee also concur- theless acknowledged that extraordinary red in the widely-held view that the last- measures might be necessary in cases of offer ballot procedure has proved to be in- major disputes involving whole or impor- effective, and perhaps harmful to serious tant segments of critical industries and pro- negotiations, and should be eliminated.' 8 ceeded to recommend, in several respects, The Committee correctly noted that its revision of the current emergency dispute formula is mild in comparison with other legislation. proposed solutions for the emergency dis- Instead of a Board of Inquiry the Presi- pute problem. The more extreme among dent would have authority, in his discretion, these have included: (1) a plan for sub- to appoint an Emergency Dispute Board at mitting to the electorate in a national poll any stage of the crucial negotiations upon the decision as to whether a national emer- the recommendation of the Director of the gency strike should be permitted to resume Federal Mediation and Conciliation Service. after the injunction period' 9 and, (2) the In addition to conducting a hearing on the delegation to an administrative agency, such question whether the dispute threatens the national health and safety, the President 17 Messrs. Meaney, Dubinsky, Harrison, Keenan, would be empowered to direct the board to McDonald and Reuther demurred at this point on the grounds that such recommendations would be mediate the dispute, to work closely with "ineffective and illogical." They suggested instead the federal mediators and to propose rec- that the President should be accorded the power to ommendations for settling the dispute. compel the institution during the injunction period of whatever terms and conditions of employment On the basis of the board's report, the he deems to be equitable. President would have final authority (sub- 18 See Givens, Dealing with Emergency Labor Dis- ject, of course, to judicial review) to deter- putes, 34 TEMP. L.Q. 17, 32 (1960); Pierson, An mine if such a threat exists and, if so, to Evaluation of the National Emergency Provisions, EMERGENCY DISPUTES AND NATIONAL POLICY, 145 declare a national emergency. The President (1955); Rehmus, The Operation of the National then might direct the Attorney General to Emergency Provisions, 62 YALE L.J. 1047 (1952). procure a court order enjoining the strike 19 Rothenberg, National Emergency Dispute: A Proposed Solution, 65 DICK. L. REV. 1 (1960); see 16 Lecture by David L. Cole originally delivered at also, Givens, Professor Rothenberg's Proposed Harvard University, American Federationist, Feb., Solution for National Emergency Disputes: A 1963, p. 7. Reply, 65 DICK. L. REV. 201 (1961). 9 CATHOLIC LAWYER, AUTUMN 1963 as the NLRB, the authority, inter alia, "to health or safety is imperiled by the stop- determine appropriate bargaining units to page, the courts, apparently in every case, requests. 22 avoid exercise of monopolistic power by have acceded to the President's unions" and to determine when strike votes The courts in making such determinations 20 should be called. may be influenced by the same balancing of The President's Committee nevertheless interests which motivate the President; but regretted that further intrusions by the another factor is the decision by the United government into the collective bargaining States Supreme Court in United Steelworkers process need be made at all. The Commit- of America v. United States that there is "no tee did not recommend any measures for room in the statute" for less than a blanket protecting the public interest if the strike injunction. 23 In a sense, the statute interferes (or lockout) resumes after the "cooling-off" with the traditional equity powers of the period, beyond repeating the current pro- federal courts 24 and calls upon the courts to "rubber vision in Taft-Hartley for a report to the stamp" the executive determina- 25 congress by the President with "such rec- tions. ommendations as he may see fit to make for On the other hand, considering the enor- consideration and appropriate action."2 1 mous size of this country, a valid argument Mild though they are, the Committee's can be made that no labor dispute to date proposals, if enacted into legislation, will has endangered, or forseeably could en- 26 answer much of the criticism of the current danger, the national health or safety. statute and might well satisfy the country's There is, moreover, the serious question needs for many years to come. To begin of what criteria should be utilized to deter- with, there is some question as to how often mine that such an emergency exists; the a labor dispute actually imperils the national non-economic effects of a major stoppage, health or safety. It is true that Presidents e.g., nationwide revulsion for collective bar- Truman, Eisenhower and Kennedy all have gaining might be just as harmful as the 2 7 indicated no great reluctance to invoke economic impact. their emergency dispute powers; but the 2 See United States v. United Steelworkers of statute, though permissive, confronts the America, 202 F.2d 132 (2d Cir. 1953) where the President with the hard choice of either court granted an injunction at the behest of Presi- dent Truman restraining a strike at a single plant seeking an eighty-day injunction or doing of the American Locomotive Company. virtually nothing in the face of a disruption 23 361 U.S. 39, 43 (1959). in production which might conceivably en- 24 Id. at 70 (dissenting opinion). 25 See Comment, Injunction of Strikes Affecting danger, even slightly, this country's position National Health and Safety, 62 W. VA. L. REv. in the international "cold war." 284 (1959). It is also true that while the judiciary has 26 See Goldberg & Barbash, Labor Looks at the guarded the right of the district courts under National Emergency Provisions,EMERGENCY DIs- PUTEs AND NATIONAL POLICY, 117 (1955); Heron, section 208 of the Act to make their own Industry Looks at the National Emergency Provi- determinations as to whether the national sions, EMERGENCY DISPUTES AND NATIONAL POL- ICY, 128 (1955). 20 Cooper, Protecting the Public Interest in Labor 27 Wirtz, The Choice of Procedures Approach to Disputes, 58 MICIL L. REv. 873, 883 (1960). National Emergency Disputes, EMERGENCY Dis- 21 Labor Management Relations Act (Taft-Hartley PUTES AND NATIONAL POLICY, 163 (1955); Hilde- Act), 61 Stat. 156 (1947), 29 U.S.C. §176 (1958). brand, An Economic Definition, EMERGENCY LABOR DISPUTES

In any event, many spokesmen for labor noticeably successful in maintaining indus- and management (including the members of trial peace, such proposals have received 32 the President's Advisory Committee) are in few endorsements. Related to compulsory agreement that emergency disputes provi- arbitration and subject to the same objec- sions, of any kind, should be used spar- tions is the recent proposal by Mr. Bernard ingly. 28 The late Senator Robert A. Taft, Baruch for a court of labor-management who was the sole author of the emergency relations to decide disputes still unresolved 3 3 dispute provisions, 29 said during the 1947 after the "cooling-off" period. Labor-man- legislative debates that the contemplated agement conflicts, unlike ordinary litigation, was do not lend themselves easily to judicial peril to the national health or safety 34 "a condition which, it is anticipated, will determination. Perhaps the most important feature of the not often occur. "30 But assuming that the history of presiden- Committee's substantive proposals would tial intervention under sections 206-21.0 has permit the President to seek an injunction been fully justified, an analysis of the pro- for a period of time less than eighty days posals of the Advisory Committee reveals and, if practicable, on a limited basis. Pre- much more substance than is apparent at sumably, emergency dispute situations may first glance. In general, a wider choice of arise where the parties, in cooperation with procedures would be made available to the the government, will be able and willing to President. Professor (now Solicitor General devise a formula for resumption of only of the United States) Archibald Cox has critical operations in order to avoid a said that the chief advantage of the flexible blanket injunction (the union) and, to pro- approach to settling emergency disputes cure some injunctive relief (the employer(s)). "lies in the capacity for preserving uncer- To the extent that this appraoch is util- tainty as to the form and extent of govern- ized the emphasis in the legislation will be ment intervention."', It is almost axiomatic placed solely on the need to protect the that collective bargaining becomes aimless public. The rigid construction of sections if the negotiators are aware that at a certain 206-210, as presently written, for all prac- point in the dispute settlement terms will be tical purposes gives an overwhelming ad- dictated by an outside party. vantage to management in the economic For this reason, and also because com- test of strength by depriving the union, pulsory arbitration in the few states that albeit for a limited period of time, of its have enacted such legislation has not proved only potent weapon, the right to strike. In the same vein, the proposed revisions DISPUTES AND NATIONAL POLICY, 6 (1955). of the statute permitting the presidential 28 See Givens, Dealing with Emergency Labor Dis- board actively to intervene before, during Heron, op. cit putes, 34 TEMP. L.Q. 17, 36 (1960); and after the injunction period will affirm supra note 26, at 128. 29 See Kleiler, A Legislative History of the Na- 32 But see speech by A. H. Raskin, 52 LAB. REL. tional Emergency Provision, EMERGENCY Dis- REP. 65 (Jan. 21, 1963); Speech by Paul L. Styler, PUTES AND NATIONAL POLICY, 107 (1955). 51 LAB. REL. REP. 208 (Oct. 25, 1962). 30 93 CONG. REC. 6860 (1947) (remarks by Senator 33 See speech by W. W. Wirtz, 52 LAB. REL. REP. Taft). 164 (Feb. 11, 1963). 31 Cox, Strikes and the Public Interest, Atlantic 34See Cooper, Protecting the Public Interest in Monthly, Feb. 1960, pp. 48-51. Labor Disputes, 58 MICH. L. REv. 873, 878 (1960). 9 CATHOLIC LAWYER, AUTUMN 1963 the dispute aspect of the emergency as op- been a vital factor in the acceptance of posed to the present implication that an Mayor Robert F. Wagner's recommenda- offense has been committed by the union tions by the representatives of the printers against the national interest. The new ap- and the publishers prior to the termination proach would also endorse the theory that of the lengthy New York publishers' strike- the public weal should be served by attempt- lockout. ing to remove the underlying causes of the Such recommendations need not be re- emergency stoppage as well as by terminat- stricted to unimaginative compromises of ing the stoppage itself. opposing positions. They may take the form Likewise, the announcement by the board of so-called "mediators' proposals" which of the facts of the dispute, especially when constitute a calculated guess as to what the the negotiations are deadlocked, will satisfy parties would agree to, ultimately and re- the right of the public to be informed and, spectively, at the point of economic exhaus- as a consequence, will also generate a cer- tion.35 Secretary of Labor W. Willard Wirtz tain amount of pressure on the more obdu- has said that if the Taft-Hartley Board, rate of the parties. For various reasons, appointed by President Kennedy during the labor-management negotiators, as a rule, are recent dock dispute, had had the power to mutually reluctant to permit full press cover- make recommendations, the walkout which age of the negotiations, so that the public followed the expiration of the injunction generally must rely for some knowledge of might have been prevented. 36 the crucial facts upon partisan advertise- The power of a presidential board to ments in the daily press and in magazines. make recommendations has existed with There will be situations, of course, as the generally good results in the field of atomic Advisory Committee apparently realized energy since 1948. 37 In that year, President (for example, a settlement may be immi- Truman created the Atomic-Energy Labor- nent) where the President, in his discretion, Management Relations Panel to which the may decide that such disclosure of the facts Atomic Energy Commission delegated its would not be in the public interest. jurisdiction over labor-management rela- The proposed amendment to the statute tions. The Panel, like the Missile Sites Labor which will permit the President to authorize Commission, established by President Ken- the board, if he deems such action to be nedy on May 26, 1961, operates in a field desirable, to make non-binding recommen- where the government has a cost interest in dations is itself quite substantial. Experi- collective bargaining between contractors ence has shown that the probability that and their employees, and also a vital interest such recommendations will be forthcoming in uninterrupted operations." Consequently, in the event of a bargaining impasse tends to hasten settlement to (1) protect the integ- rity of the collective bargaining process and, 88 See Christian Science Monitor, Feb. 28, 1963, p. 1. (2) preserve the reputations of the negotia- 36 Speech by W. W. Wirtz, 52 LAB. REL. REP. 52 tors as negotiators. On the other hand, third- (Jan. 14, 1963). party recommendations sometimes enable 37 See Givens, Dealing with Emergency Labor Dis- putes, 34 TEMP. L.Q. 17, 32 (1960). both sides to emerge from a hopeless dead- 88 Johnson, Dispute Settlement in Atomic Energy lock without losing face. This may have Plants, 13 IND. & LAB. RFL. REV. 38 (1959). LABOR DISPUTES the Panel and the Missile Sites Labor Com- The proposals of the President's Advisory mission enjoy much broader powers, short Committee admittedly fall far short of pro- of compelling arbitration, than those con- viding the President with an "arsenal of templated by the Advisory Committee report weapons" like that which is available to the with which we are concerned here. Governor of Massachusetts.4 3 The disadvan- Since the Emergency Dispute Board, un- tages of compulsory arbitration have already like the Panel and the Missile Sites Labor been noted. Plant seizure as a method of Commission would be an ad hoc group with settling emergency disputes would seem to a new complement of members, perhaps for be a drastic alternative but, surprisingly, each dispute, it is tempting to conclude that this approach if used in conjunction with an existing agency such as the NLRB might other measures so as to preserve the ele- be a more satisfactory alternative. 39 The ment of uncertainty, has received a fair 4 NLRB personnel, so the argument goes, amount of support in responsible circles. would be able to anticipate and work to It is true that seizure of the struck plants by resolve emergency disputes in the embryonic the government during the injunction pe- stage. On balance, however, such an alterna- riod, while perhaps unnecessary for the tive should be repected both on the merits protection of the public interest, certainly and as politically inexpedient. A board com- would announce dramatically that the ob- posed of distinguished neutrals who are jective of the act is not to punish one party expert in the problems of a particular indus- and to aid the other. Seizure in some cases try presumably can be more objective in might result, however, in an undue advan- their approach, and thus more persuasive tage to the union. than full-time government employees. In addition, there is the enormous admin- Furthermore, though criticism of the istrative difficulty of effectuating the seizure Atomic Energy Panel, for the most part, has and the insurmountable difficulty of per- been favorable, 40 there is some evidence of suading the congress to accord such power reliance by the parties to an undetermined to the President in futuro. The mutual con- extent in their negotiations upon govern- fidence required for such legislation rarely ment intervention.41 This weakness, if it has existed between the legislative and the does exist, may be justified for atomic energy executive branches of the government in operations (and missile sites) since it is this century. 45 Admittedly, congress consti- still the position of the Atomic Energy Com- 43 Mass. Gen. Laws ch. 150B, §§1-7 (1957). The mission that labor-management relations in Massachusetts statute, popularly known as the that field must be accorded special treat- Slichter Law after the late Prof. Sumner Slichter ment, 42 but it might prove intolerable in who was instrumental in its enactment, provides for a wide assortment of measures including com- other industries. pulsory arbitration and seizure for certain disputes 39 See Cooper, supra note 34, at 883. that endanger "the public health and safety." 40 See Crawford, Government Intervention in 44 See Givens, supra note 37, at 27; Cox, Seizure Emergency Disputes in Atomic Energy, 10 LAB. in Emergency Disputes, EMERGENCY DISPUTES AND L.J. 414 (1959); Johnson, supra note 38, at 51. NATIONAL POLicy, 242 (1955); Proposal by Sena- But cf. Browne, The Missile Sites Labor Commis- tor Jacob Javits, 52 LAB. REL. REP. 91 (Jan. 28, sion and the Derogation of the Taft-Hartley Act, 1963) (advocating a limited form of seizure). 48 A.B.A.J. 121 (1962). 45 Fleming, The Search for a Formula, EMER- 41 Johnson, supra note 38, at 39. GENCY DISPUTES AND NATIONAL POLICY, 221 42 Ibid. (1955). 9 CATHOLIC LAWYER, AUTUMN 1963 tutionally could delegate such power to the the political standpoint. President.4 6 The political obstacles would also defeat Federal Pre-Emption the minor form of seizure, i.e., compulsory There can be no question that a labor imposition of terms and conditions of em- dispute might constitute a local calamity ployment during the emergency period, rec- and at the same time adversely affect the ommended by the labor representatives on national interest without falling within the the President's Advisory Committee. But, purview of sections 206-210. For example, in the last analysis, seizure, compulsory it has been estimated that the recent work arbitration or related measures, or legisla- stoppage among the New York newspapers tion remedying the underlying causes of the cost the city's economy more than $100,- 49 particular dispute, can be made available to 000,000. The strike-lockout "had a vital the President on an ad hoc basis as the need effect on the economic life of this great city 4 7 arises. of New York."50 In addition, among the The moderate proposals advanced by the thousands of far-reaching effects of the President's Advisory Committee will have "brownout" (several interim newspapers the two-fold advantage of procuring some did appear on the stands) was the ability of reform of the existing legislation without the city government to pass quietly into law endangering the collective bargaining proc- some highly controversial measures. 5 ess. Except for the limited exceptions by the However, according to Secretary of Labor labor representatives noted above, only one Wirtz52 and President Kennedy 53 the news- member of the twenty-one member Advis- paper situation could not be considered a ory Committee, Henry Ford, II, dissented national emergency dispute in the light of from the Committee's report. 48 This near past practice, the legislative history of Taft- unanimity is not without significance from Hartley and the language of the statute itself. Several states, among them Massachu- 4GYoungstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). setts, have attempted to fill the vacuum, in 47 Recently President Kennedy signed into law a part, with legislation aimed at curbing local joint resolution of the congress which had the emergencies. The constitutionality of such immediate effect of averting a nation-wide rail strike. The resolution, the first of its kind, provides legislation, however, has been somewhat for compulsory arbitration of the two major bar- doubtful since a 1951 decision by the United gaining issues, the mechanics of which are expected States Supreme Court striking down a Wis- to consume 180 days commencing August 28. At compulsory the end of that period either party will be per- consin statute which substituted mitted to resort to "self help," i.e., strikes or lock- arbitration for strikes, both violent and outs, in the unlikely event that the secondary peaceful, by utility workers. 54 In the Wis- issues have not been resolved through the bargain- 49 Christian Science Monitor, March 9, 1963, p. 1. ing process 54 LAB. REL. REt'. 3 (Sept. 2, 1963) (The railroads are not subject to the provisions of 50 Remarks by President Kennedy, 52 LAB. REL. the Labor Management Relations Act and the REP. 231 (March 4, 1963). "emergency" aspects of a labor stoppage in that 51 Christian Science Monitor, March 9, 1963, p. 7. industry, though not unrelated, obviously present 52 52 LAB. REL. REP. 52 (Jan. 14, 1963). problems far more acute than those with which we 53 Christian Science Monitor, March 9, 1963, p. 1. are concerned here.) 5,Amalgamated Ass'n of St., Electric Ry. &Motor 48 Mr. Ford agreed, however, that the "last-offer" Coach Employees of America v. Wisconsin Em- ballot procedure should be eliminated. ployment Bd., 340 U.S. 383 (1951). LABOR DISPUTES

consin case the Court cited Consolidated provisions of the NLRB have proved to be Edison Co. v. NLRB 55 for the proposition ineffective, for the most part, and perhaps that federal labor legislation encompasses harmful in maintaining industrial peace. all industries affecting interstate commerce But, more important, a fair number of man- and thus pre-empts concurrent state regula- agement and neutral spokesmen seem to tion. concur in the view that the 1947 amend- Since its enactment in 1947, the Slichter ments have failed, not because congress Law has been invoked in less than ten dis- omitted procedures for the post "cooling- putes but the mere existence of the law and off" period, but because congress, during a the threat that it represents has been a con- period of industrial turmoil that was not tributing factor to settlements in many other conducive to objectivity in approach, en- negotiations in Massachusetts. Aside from acted legislation that was, in fact, punitive the question of its constitutionality, the and one-sided. Slichter Law can be criticized on several While it would be futile to attempt to other grounds, most of which become aca- overlook partisan considerations in this demic if the need to invoke its procedures area, the report of the President's Advisory seldom arises. On the whole, comment has Committee shows that partisan interests and been favorable.56 Furthermore, there is no the public welfare can be accommodated by evidence that the integrity of the collective reasonable men. The bulk of the language in bargaining process has suffered as a result the report concentrates on the dispute aspect and the fact remains that since 1947 the of national emergencies and suggests volun- health and safety of no community in Mas- tary procedures designed to avert, or at sachusetts has been imperiled during a labor least reduce, the gravity of industrial dis- dispute. putes before they reach the crucial stage. Adoption of the extraordinary measures Conclusion proposed by the President's Committee also No adequate discussion of measures for will preserve the vitality of the collective settling labor disputes in industries affected bargaining process by providing the Presi- with a national interest can ignore the un- dent with a flexible choice of procedures derlying causes of such disputes. Few which focus on persuasion or the generation authorities on labor-management relations of the pressure of public opinion, rather today will deny that the emergency dispute than on direct compulsion, as methods of resolving emergency disputes. At the same 55 305 U.S. 197 (1938). time, the new powers to be accorded to the 56 See Cox, Federalism in the Law of Labor Rela- President for delegation tions, 67 HARV. L. REV. 1297 (1954); Fleming, The to an Emergency Search for a Formula, EMERGENCY DISPUTES AND Dispute Board will affirm the right of the NATIONAL POLICY, 221 (1955); Wirtz, The Choice public to be represented continuously in of Procedures Approach to National Emergency major negotiations after a crisis arises. Disputes, EMERGENCY DISPUTES AND NATIONAL POLICY, 163, 165 (1955); Comment, Injunction of The President's Committee did not dis- Strikes Affecting National Health and Safety, 62 cuss the question of pre-emption but its W. VA. L. REV. 284, 289 (1959); see Shultz, The reservation of the proposed extraordinary Massachusetts Choice-of-Procedures Approach to Emergency Disputes, 10 IND. & LAB. REL. REV. measures to "major disputes involving whole 359 (1957). or important segments of critical industries" 9 CATHOLIC LAWYER, AUTUMN 1963 should encourage legislation according some around the world, especially in Western emergency dispute powers to the states. Europe.5 1 The Massachusetts approach to such prob- According to Pope Pius XI, "this accu- lems, though extreme in some respects, mulation of power, the characteristic note incorporates to a remarkable degree the ele- of the modern economic order, is a natural ment of flexibility that most critics agree is result of limitless free competition which basic to emergency dispute legislation. It permits the survival of those only who are might furnish a satisfactory model for other the strongest, which often means those who states to follow if permitted by the congress fight most relentlessly, who pay least heed to do so. But the resolution of work stop- to the dictates of conscience.. .. ,,59 Though pages that affect the public health and safety the Pope was concerned primarily with the or which have more subtle but no less tragic exploitation of the working classes by the effects, like the New York newspaper stop- captains of industry, his strictures would page, is a problem for the states to decide, seem to have relevance also to those situa- each in its own way. tions when labor possesses the economic Finally, the need for more drastic federal leverage. legislation in this area, even on an ad hoc Arbitrator David L. Cole has described basis, might never be necessary if the collective bargaining in the United States as "increased measure of maturity" called for "still primitive and crude in many in- by the President's Advisory Committee be- stances."60 Cole urged greater acceptance of comes a reality in our system of collective labor-management cooperation during the bargaining. The American economy, to this term of a collective bargaining agreement.6 1 day, anticipates and accepts a certain The growing complexities of our indus- amount of industrial conflict as part of the trial life and the instabilities of international price to be paid for the maintenance of dis- relations were cited by the President's Ad- tinct and separate spheres of influence in visory Committee as justification not only employment relationships.5 7 While statistics for more government intervention but, pri- do show that the incidence of strikes in this marily, for greater rapport between the two country has declined in recent years and partisan sectors of our economy. According presumably will continue to decline, the to Professors Hartman and Ross, both strike weapon will not "wither away." Resort (Continued on page 319) to economic strength is still an important feature of the industrial relations systems of the United States and Canada. This is not 58 Ross & HARTMAN, op. cit. supra note 57, at 168- so in most other non-totalitarian 81. nations 59 Pius XI, Quadragesima Anno (1931), FIVE GREAT ENCYCLICALS 125, 153 (1939). 60 57 Ross & HARTMAN, CHANGING PATTERNS OF IN- "Collective bargaining, of its very nature, impels DUSTRIAL CONFLICT 169 (1960). "[T]he solution of both parties to look more or less exclusively to our labor problems must rest on a free economy their own narrow advantage ... " Statement by the and on free collective bargaining.. . we recognize Department of Social Action of the National Cath- that right (to strike upon contract expiration) in olic Welfare Conference, 72 Commonweal, Sept. spite of the inconvenience and in some cases, dan- 16, 1960, pp. 495-96. ger, to the people of the United States which may 61 Lecture by David L. Cole originally delivered result from the exercise of such right...." 93 CONG. at Harvard University, American Federationist, REC. 3835-36 (1947) (remarks by Senator Taft). Feb. 1963, p. 7.