INCE the passage of the Taft-Hartley Act in 1947, it has become increas ingly evident that public policy towards strikes in basic industries will continue for some years to lean heavily on statutory regulation. The hope once held by many that the federal government would withdraw from this area, once the public forgot its momentary wrath over the postwar wave of strikes, has been rather completely exploded by the Truman administration's failure to win repeal of the Act, the furor occasioned by the steel strike of 1952, and the recent Republican election victory. The astonishing offer by the Machinists' president, A. J. Hayes, to accept compulsory arbitration of emergency disputes1 is but an extreme example of the extent to which even union leaders are becoming aware of the fact that the shift in public policy in this area is relatively permanent in nature.

In view of the far-reaching implications of this development, it is not surprising that the national emergency pro

Donald E. Cullen is an assistant professor, New York State School of Industrial and Labor Relations, Cornell University. — EDITOR

visions of the Taft-Hartley Act have remained the subject of bitter controversy for the past six years, for they represent this country's first peacetime attempt to deal legislatively with emergency strikes on an all-industry basis. However, the issues in this controversy have often been obscured by the manner in which many of the Act's critics have chosen to launch their attacks; rather than scoring specific instances where the Act's failure could have been averted by the use of some other means, they have preferred to charge the present provisions with failure to measure up to some unattainable ideal.

Although there always exist imponderables which have to be considered in the evaluation of any labor legislation, such value judgments as need to be made should at least not be inconsistent with either the factual record or the realistic alternatives. For that reason, this appraisal of the effectiveness of the TaftHartley Act in national emergency disputes, although necessarily relying in large part upon the writer's own subjective standards, is based as far as pos

'Daily Labor Report (Washington: Bureau of National Affairs, Inc.), March 24, 1953, p. A-4.

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sible upon an examination of the Act's record over the past six years, together with a consideration of the major alternatives which might have been adopted in its stead.

GOVERNMENT INTERVENTION

The fundamental question is whether there is a need for the federal government to take any direct action (beyond the preservation of order and the offer of its mediation services) in a strike which occurs during peacetime in an industry which is not a public utility. Unless this question is answered affirmatively, as the public has already done, any evaluation of present legislation becomes of mere academic interest.

It is the writer's feeling that many of the experts who insisted in the 1930's that the federal government had a positive moral obligation to intervene in labor-management relations were caught completely unawares by the postwar rash of strikes in the basic industries, and that the resultant "intellectual lag" contributed little of a constructive nature in the great debate of 1947. Consider, for example, the open "Letter to the Times" written in May 1946 by thirty-two eminent professionals in protest against any assault upon free collective bargaining, even if the prohibition is ostensibly for a limited period of time.... Great as may be the inconvenience to the American public in any given strike action, far greater is its direct impact on the union workers who by their voluntary action cut off their earnings in a joint effort to improve their working conditions.2

Probably not many of the original

'New York Times, May 26, 1946, Sect. 4, p. 6, col. 7, (italics added), as quoted by Orme Phelps, "Public Policy in Labor Disputes: The Crisis of 1946," Journal of Political Economy, Vol. 55, No. 3 (June 1947), p. 194. Although written before the passage of the Taft-Hartley Act, Phelps' article remains one of the most penetrating analyses of this entire problem of emergency strikes.

signers would subscribe to quite such an extreme letter today, but there is some doubt whether their refusal would stem from a change of heart or a realization that such sentiments would appear a trife quaint to the uninitiated, who have callously come to accept government intervention as a normal thing. Much of the writing done since Korca bears an unmistakable air of polite resignation to the fact that now that we actually have a defense economy, it is regrettably necessary that something be done about strikes in basic industries. Thus, the staff report (prepared by Mr. Jack Barbash) which accompanied the Morse seizure bill in 1952 soothingly murmured,

In our resilient economy most such disputes, even when they interrupt production and service, do not unduly inconvenience the public at large. The very availability of the right to strike and the right to withhold improvements tends to minimize such disruptions.

In peacetime, absent severe economic dislocations such as a depression, there are practically no work stoppages which would create hardships so extreme as to constitute a "national emergency".... Few industrial stoppages, even in basic industries and if of substantial length, have a profound effect upon national stability or well-being.

It is recognized, however, that war, the threat of war, and conversion from a war economy create national and international emergencies.

This view appears to be shared by many of the same people who, only a few years ago, were eloquently attacking (and rightly so) the management shibboleths that were so long employed to block the introduction of protective labor legislation and similar government aid to the majority at the expense of the vested

'U. S. Congress, Senate, Report of the Committee on Labor and Public Welfare to Accompany S. 2999, Report No. 2073, 82d Cong., 2d Sess. (Washington: G.P.O., 1952), p. 3 (italics added).

interests of a minority. Indeed, it would be instructive to compare such writings as those above with the pious claims of management a short time back that in our "resilient" free enterprise economy, there was practically no poverty or unemployment so extreme that government meddling was warranted; after all, the very right to pay low wages and to hire and fire according to whim actually tended to minimize any disruptions before they could exert a really profound effect upon national well-being. In war, of course, it was grudgingly admitted that everyone must rally around and recognize that the government has to get a little pushy. It sometimes seems that this myth of the unalloyed joys of "free enterprise" has found a worthy competitor in the similar myth of "free collective bargaining."

It cannot be emphasized too strongly, however, that no one can offer much more than his own personal prejudices as "proof" that the nation either does or does not require some form of protection against certain peacetime strikes. In this respect, two questions always present themselves whenever any major strike occurs in a basic industry. First, do those effects of the strike which everyone can see and measure constitute an "inconvenience" or an "emergency"? Second, what might have happened if the government had not intervened?

EMERGENCY STRIKES:

FACT OR FANCY?

That these questions do not readily yield themselves to factual analysis was clearly demonstrated by the long-needed study by Professors Bernstein and Lovell on the effects of bituminous coal strikes, published in the April issue of this Review. In discussing the short-run effects of the three most serious coal

'Irving Bernstein and Hugh C. Lovell, "Are

strikes of recent years, in 1946 and 19491950, they recount a depressing tale of compulsory brownouts, mass layoffs and reduced work weeks, cutbacks in railroad freight and passenger services, limited parcel-post and express shipments, school closings, and coal rationing by state governments. These are the visible effects which everyone must agree occurred, but why does their enumeration lead necessarily to the authors' conclusion that those strikes were not national emergencies because they only "...inconvenienced millions of people and caused small numbers to suffer genuine hardship"? Obviously, the key lies in one's definitions of "emergency," "inconvenience," and "hardship."

Much more than a semantic quibble is involved here, however, for most people would agree that if the effects of those three strikes did not constitute an emergency, then they at least were clear warnings that an emergency was rapidly developing and since the government certainly should not have to wait until the country is brought to its knees before intervening in such a strike, it matters little what you label the danger signals. But Bernstein and Lovell contend that it is just this fallacious reasoning which has led Congress and the public to “overestimate the national emergency character of coal strikes." The rationale of their study is that every major coal strike could paralyze the economy but, "Since the significant questions of policy affect the real and not the fancied world, our attention is directed exclusively to the effects of actual coal walkouts." After examining these effects and concluding

Coal Strikes National Emergencies?", Industrial and Labor Relations Review, Vol. 6, No. 3 (April 1953), pp. 352-367. "Ibid., p. 366. Ibid., p. 367. "Ibid., p. 353.

that they have never constituted an emergency in recent years, they then feel justified in suggesting that, "Further discussion of public policy... should reflect a more realistic appraisal of the actual impact of these disputes."8

It seems fairly clear that this entire study rested upon an extremely vulnerable assumption, viz., the belief that, if it could be shown that recent coal strikes have not resulted in national emergencies, that would somehow prove that natural forces such as long-run overcapacity have stopped such strikes without government help in the past and can do so in the future; otherwise, the strong implication that the government should ease itself out makes no sense. But as is well known, the three most serious coal strikes in recent years ended only when the government, in the first instance, seized the mines; in the second, successfully charged John L. Lewis with contempt of an injunction; and in the third, threatened to seize, following the failure of the Taft-Hartley. Bernstein and Lovell even noted that just as coal strikes begin to take "serious effect," the "forces of consumer interest, public opinion, and governmental power combine to nudge the parties into agreement." Without disputing the characterization of Justice Goldsborough's best efforts as a mere nudge, one can still wonder why the government should stop intervening in coal strikes just because those in which it intervened in the past did not develop into emergencies.

THE MIDDLE ROAD

All of this is not meant to prove that these strikes would necessarily have developed into catastrophies had the gov ernment not intervened. It is important to recognize, however, that an appeal to

Ibid., p. 367.

Ibid., p. 366 (italics added).

the strike record of the last few years can tell very little about the merits of "free collective bargaining" in our basic industries, for the simple reason that the government has directly intervened in nearly every major strike in recent years. Therefore, a finding that no recent strike has resulted in whatever one may term an "emergency" could just as logically be used as an argument for continued intervention as for proof that no intervention is needed.

The question originally posed as fundamental to an inquiry in this area, viz., whether it is ever necessary that the gov ernment directly intervene in a peacetime strike in a basic industry, can thus be answered only on subjective grounds. It is the assumption of this article that the government has a positive obligation to intervene in more of these strikes than the prevailing weight of expert opinion would seem to approve (and in fewer than the prevailing weight of Congressional opinion would demand). Against the protest that such an approach begins by sanctioning a cooling-off period in atomic energy and inevitably ends by calling for compulsory arbitration in the greeting-card industry, there is no more effective rebuttal than that properly employed by the same experts for the past twenty years against the anguished outcries of the business community: laissezfaire and complete government control are not the only alternatives open to a free society. The thesis that “limited government intervention" is a contradiction in terms has been disproved in nearly every area of labor relations; there is no reason to assume that this problem of emergency strikes shall prove to be an exception.

Regardless of one's own convictions on this point, it must at least be acknowledged that any evaluation of a particular emergency strike law can be termed truly

disinterested only if the author first states his attitude toward emergency strike legislation in general, a declaration few have cared to make.10 As will be shown, a critic who feels that any such legislation is necessary only to mollify hysterical Congressional and public opinion is certain to reach conclusions as to the effectiveness of the Taft-Hartley's emergency provisions quite different from those reached by one who thinks that the pressure of events has served to narrow the controversy to one of means, not ends. Although one's basic assumption in this area has been shown to be largely a matter of opinion, there are two other sources of confusion which can be more easily resolved on objective grounds. First, what did the framers of the Act intend it to achieve, and second, what alternatives might they have adopted?

THE AIM OF THE NATIONAL
EMERGENCY PROVISIONS

Confusion regarding the original intent of the Act's provisions arises largely from a failure to distinguish between the opinions of the Act's framers and those of its supporters. Certainly a sizable segment of the American public in the spring of 1947 yearned only for relief in any form from the plague of strikes which had swept through thirteen major industries since V-J Day. That this

10 David Cole is one of the few exceptions, terming "legal procedures" in this area a "serious mistake" and extending the Bernstein-Lovell thesis to all industries: "Without protective laws, irrespective of serious threats made from time to time, our country has not over the years suf fered unduly from shutdowns of basic industries." "Emergency Labor Disputes," Proceedings of the New York University Fourth Annual Conference on Labor (New York: Matthew Bender, 1951), pp. 229-230.

"Oil, coal (twice), lumber, glass, textiles, trucking, automobile, steel, railroad, maritime, telephone, telegraph, and air transport, in addition to various public utilities in local areas. (Not all of these strikes were industry-wide in

mood was reflected by many members of the Eightieth Congress was evidenced by the spate of vindictive bills that was offered at that time, mostly by Congressmen who later voted for the Taft-Hartley Act.

The single best source for learning the legislative intent of these provisions, however, is necessarily Senato Taft, for it was his views which predominated in the final version of the Act.12 In his major Senate speech in defense of his bill, Taft explicitly set forth what he hoped to achieve by the national emergency provisions and, equally important, what he did not intend to achieve:

... we recognize freedom to strike when the question involved is the improvement of wages, hours, and working conditions, when a contract has expired and neither side is bound by a contract. We recognize that right in spite of the inconvenience, and in some cases perhaps darer, to the people of the United States which may result from the exercise of such right. In the long run, I do not believe that that right will be abused. In the past few disputes finally reached the point where there was a direct threat to and defiance of the rights of the people of the United States.