Managing Emergency Strikes
GOULD, WILLIAM B.
THE ROLE OF GOVERNMENT Managing Emergency Strikes By William B. Gould A vast number of Americans, raised to value the tradition of free trade unions, readily accept free collective...
...For instance, legislation outlawing the union shop and company checkoff of union dues, or making unions more vulnerable to the raids of rivals, would lead to instability and frustration-and probably increase the potential for intolerably burdensome and bitterly intractable strikes...
...Such an assertion of national labor policy, desirable in itself, would also serve as a quid pro quo to the unions for the restrictions the states are already imposing on the right to strike...
...Finally, the "cooling off" period after the termination of a contract has never worked under the present Taft-Hartley emergency provisions, although it might be useful during a period of political transition such as New York underwent this year...
...Legislation of this kind might resemble the "choice of procedures" law advocated by Secretary Wirtz, and in one form already enacted in Massachusetts...
...Therefore mediatory procedures, to be observed prior to the contract's expiration date, should be incorporated into law by state legislatures regardless of what is done about sanctions...
...And it should be remembered that before joining the Kennedy Administration in 1961...
...The weaknesses in Taft-Hartley, combined with the provocative theatrics of Mike Quill, resulted on the national level in President Johnson's State of the Union call for amendments to its emergency strike provisions...
...The question here is not whether there should be a new law, but under what conditions it will be enacted: during a period of relative calm, or during a crisis like New York's transit strike, which outrages labor's friends as well as its enemies...
...This panel might be chosen by the governor or mayor...
...Actually, more industries with real emergency potential-such as electric and telephone-are in private rather than public hands...
...Those problems, presented in an absurd form by the failure to find reasonable procedures for dealing with the TWU, continue to plague the New York State Legislature...
...Public employment is increasing and so is its importance in the economy...
...But the President does not seem content to let the matter drop with his indictment of the New York transit package as "inflationary...
...2. If the Commissioner is not notified that an agreement has been reached within 30 days, a threeman panel of mediators should assist the disputants...
...Although government has long kept a close watch on crucial labor-management negotiations-occasionally exerting pressure to resolve themthe January crisis has released a wave of concern about the effectiveness of the legal tools available on the Federal, state and local levels in situations involving the general welfare of an entire community...
...Because of the highly unusual circumstances of the New York strike, it is quite possible that we will not see its likes again no matter what laws are enacted...
...Similarly, New York's Condon-Wadlin law causes so many more problems than it solves that it will probably be replaced...
...Suggestions for revising the Taft-Hartley Act, which stipulates an 80-day "cooling-off" period in strikes affecting the country's "health and safety," are commonplace and normally one does not pay much attention to them...
...In New York, for example, the law might run as follows: 1. A party wishing to modify or terminate a labor contract shall notify the other party and the Commissioner of Labor 60 days before the contract expires...
...But can anyone compare this to similar conduct by policemen or firemen...
...Should a strike by the employes of state-owned liquor stores be treated in the same manner as a transit dispute...
...But after New York City's 12-day mass transit strike by the Transport Workers Union (TWU), many find it difficult to quarrel with the much heard argument that collective bargaining cannot remain quite as free as it has been, at least in certain industries...
...Current union opposition to revisions in either the Taft-Hartley or Condon-Wadlin laws calls to mind the unseeing posture of union leaders in 1946-47, when they refused to suggest a legislative alternative to Taft-Hartley...
...Since the alternatives are not entirely predictable, they should not give the parties a crutch to lean on...
...Moreover, the problem of obtaining the funds for improved wages and benefits was especially frustrating this time...
...d) in a case of severe intransigence, issue a binding arbitration award...
...It would seem wise for the trade unions to take the lead in advocating new strike legislation both locally and nationally...
...Both sides attempt to rally outside support for themselves rather than bargain in good faith...
...Legislatures or Congress also must determine what protection for employes should be established if the right to strike is restricted...
...Does labor want a similar result today...
...Indeed, for Washington to dictate how states must operate public services would contravene the trend toward greater state responsibility fostered by reapportionment...
...That law, with its anti-union injunctive provisions and silly "last offer" vote requiring employes to accept or reject the public position of the employer, will almost inevitably be amended, whatever attitude the unions take...
...This law does not now cover public employment or local emergency strikes against private employers, and the President has correctly stated that Federal legislation must take into account the legitimate prerogatives of state and local government...
...This approach, permitting the government to remain flexible and adapt itself to each case, may yet be incorporated in Taft-Hartley when it is revised...
...Normally, however, the cooling off period proves to be a "heating up" period during which both partieswithout benefit of some form of factfinding-rely on the same strategy which impelled them to disagree before the contract ended...
...It is clear that the sanctions CondonWadlin invokes against strikersi.e., automatic dismissal and no pay raise for three years-are unduly harsh, have no relevance to the real causes of labor disputes, and most important, are simply not enforced against strong unions...
...William B. Gould, a labor lawyer with a New York firm, closely observed the city's transit dispute...
...But despite the unlikelihood of a simultaneous recurrence of these circumstances, the public remains uneasy...
...This dispute became unnegotiable mainly because the contract expired simultaneously with the advent of a new city government pledged to a change in industrial relations, and because of the evident political antagonism between Mayor Lindsay and the TWU...
...Labor unions should not be arbitrarily restricted in this sector...
...In New York State, the immediate onus remains on the Legislature in Albany...
...The question of states passing laws affecting private industries is one Congress must decide, since Taft-Hartley precludes state action in this area...
...THE ROLE OF GOVERNMENT Managing Emergency Strikes By William B. Gould A vast number of Americans, raised to value the tradition of free trade unions, readily accept free collective bargaining as a part of that tradition...
...In the final analysis, damages and fines are the only weapons the law can provide against an illegal strike...
...And legislatures should not be tempted by bills that would require unions to take secret strike votes...
...The "choice of procedures" encourages collective bargaining more than any other scheme of governmental involvement...
...Such bills, in trying to divide the unions from employes, actually will compel labor leaders to conduct political campaigns when they should be bargaining...
...or the union and employer might each choose one member, with the third picked by the two men already selected...
...Except in extreme circumstances, these measures should bring about a settlement-sometimes under the weight of public opinion...
...What, then, can the New York Legislature do...
...Compulsory arbitration would be a last resort...
...The legislatures should cut through the propaganda that every public strike constitutes an emergency...
...The American penchant for passing laws has saddled us with some very foolish ones in the past...
...The possible constitutional objection to handing over budgetary decisions to outside third parties can be solved, if necessary, by amending the New York Constitution...
...c) issue a public report on the positions of the parties...
...Now other unions which had struck earlier and actually been penalized under the law-namely the welfare and the ferry boat workers-are asking to be exempted too...
...The governor or mayor can be authorized to do nothing in cases where settlement is close but one party thinks it will gain by intervention...
...Even a walkout by the groundskeepers at the governor's mansion would outrage a good many citizens...
...It is doubtful that compulsory arbitration or any other form of governmental influence during emergency strikes can impose the wage-restraints guideposts enunciated by the Council of Economic Advisors...
...Increases granted in the transit settlement required emergency "special interest" legislation to circumvent the explicit prohibition of such raises by Condon-Wadlin...
...Secretary of Labor W. Willard Wirtz proposed some very sensible procedures to deal with emergency strikes...
...Nor is it sensible for state lawmakers to give equal weight to all public employe strikes...
...But even so, sanctions that are too stringent will prove self-defeating...
...But, as New York's Mayor and the Transit Authority very quickly discovered, it is difficult to penalize someone while attempting to bargain with him...
...But the Federal government can and should guarantee the right of public employes to join unions...
...3. If the Commissioner of Labor is not notified of a settlement 15 days prior to the contract's expiration, the governor or mayor might instruct the mediators to: (a) issue public recommendations: (b) issue private recommendations to the parties and, if there was no settlement after that, make the recommendations public...
...But the proposals outlined would work best if the mediators make awards or recommendations similar to those the parties would accept after a strike, rather than when preoccupied with the abstract welfare of the national economy...
...Unions and employers could be required by law to bargain in terms of productivity or the guideposts...
...Whether employers like the New York City Transit Authority would be affected by Taft-Hartley revision is another matter...
...Whatever new sanctions are enacted-and sanctions are necessary in some industries-they should be directed against the offending union rather than against individuals...
...Having accepted the feasibility of "advisory" arbitration or thirdparty fact-finding, it is difficult to argue against a stronger dose of the same medicine in extreme cases...
...The late TWU President, Michael Quill, carped at Lindsay's supposed Presidential ambitions, while the Mayor lashed out against the "power-brokers" who, in his view, obstructed peaceful settlement...
...They stand to lose the most when the next major strike threat emerges and legislators become less dispassionate than they are today...
...Moreover, some strikes-say, in the schools-may not threaten the public health, safety or welfare if they last for a very short period, while a week-long teachers' strike would be intolerable...
Vol. 49 • March 1966 • No. 6
