D E C E M B E R 1 9 6 6
by Leland Hazard
IT IS time for comprehensive legislation, not to abolish the strike, but to make its use more intelligent and intelligible. During last summer's airplane strike, it was popular to criticize both the President and the Congress for hesitating to take decisive action to end the national hardship. And when Secretary of Labor Willard Wirtz testified before committees of the Congress that the strike did not constitute a "national emergency," the country wondered how preciously semantic he could be. Sixty percent of our transit facilities -- some, parts of global systems -- was out of service. If, as the Secretary said, only some "inconvenience'' was involved, why would the air carriers have been certified as essential in the national interest by the Civil Aeronautics Board, or subsidized for mail by the government, as they once were, or otherwise aided, as they are, with taxpayers' money?
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The ruin, or partial ruin, of small businessmen -- florists who could not
get supplies; operators of airport restaurants and bars; cabdrivers and porters
without customers or tips; a whole galaxy of satellites, large and small, from
adjacent motels to automatic vendors -- such economic disaster is more than
an inconvenience. Obviously, in this context, the Secretary's word
"inconvenience" was nonsense.
But in another context, the President and the Congress and the Secretary made sense, given the dilemma in which they were caught. The dilemma may have been of the President's own making. I am informed that off the record, in advance of the union negotiations, the President told the principal aircraft executives to hold any increase within the now defunct government "guidelines." The executives obeyed; and in the end, the President himself had the onus of piercing the ceiling in a desperate effort to end the strike and save the form of collective bargaining, only to find that the union leaders could not speak for their constituents, a clear case of the American workman's determination that his services will be available only on his own terms.
The aircraft workers' revolt was not unique. Walter Reuther in September, 1964, wrested from the Big Three "the best contract the UAW has ever negotiated," yet his constituents at GM called a strike which lasted six weeks. David McDonald went out for Total Job Security, Greater Prosperity, and Greater Justice and Dignity on the Job; and his Human Relations Commission for Continuous Bargaining was hailed as a real leap forward toward industrial peace. But the giant Steelworkers Union voted him out. In January, 1965, Longshoremen's president Thomas Gleason announced "the best contract ever." But the longshoremen struck, nevertheless, at a cost of $67 million a day in the export and import business alone.
Government hesitates to interfere with collective bargaining and strikes for good reason. It is held to be essential to the private enterprise system that wages be determined by private contract. George W. Taylor, adviser to Franklin Roosevelt and every President of the United States since, and dean of the philosophers of labor-management relations, says that there are four ways in which wages may be fixed: by management, by labor, by government, or by collective bargaining. The strike in our system of industrial democracy is a right. It is the worker's way of asserting that he is not a slave. It is significant that when American labor sought to prevent, and later to repeal or amend, the Taft-Hartley Act, which in some respects curtailed union power, the verbal weapon it most frequently used was the phrase "Slave Labor Law" -- poignant proof of labor's recent emancipation; for indeed, most of the world's work in historical time has been done by slaves. The fact that the average American worker has more conveniences, comfort, health, and amenities than any other man in all past history is not the point. The worker must be independent, free to provide his services on terms and conditions to which he agrees and free not to work under compulsion -- that is, free to strike.
But no right or principle exists independently of all else. No worker is an island. There are restraints upon the strike. Firemen, policemen, and other governmental workers must press their claims by methods other than the strike. This is the consequence of law or convention. Automation has curtailed the efficacy of the strike in certain industries, such as telephone systems with nationwide dialing and oil refineries with closed-system, computer-managed controls. Federal law authorizes the President to obtain an injunction to suspend a strike in case of a "national emergency" and to require a workers' vote on the employer's last offer, a useless provision, since the injunction and the vote can come only after the fact of the strike, with emotions running high and the prestige of the union leader really the issue rather than the merits of the last offer.
In declared wars, such as World Wars I and II and in Korea, we adopted measures alleged to be with workers' consent, and only partially effective, to limit strikes. But the fact remains that we do make exceptions to the right to strike. Perhaps the most notable are the presidential interventions. Except for some war powers, when a President of the United States introduces himself into a labor-management dispute, he acts without warrant of law. He must gain the acquiescence of both labor and management, as President Truman learned when John L. Lewis told him, "You can't mine coal with bayonets." But using the vast powers of the presidency to get bipartite agreement in a labor dispute is not collective bargaining; and it is an interference with the right to strike when collective bargaining has failed to produce agreement. The duress from the White House is no less duress because it is presidential; nor is the agreement, so compelled, the result of free and voluntary collective bargaining. Presidents of the United States have been the worst offenders against collective bargaining and the right to strike.
But in the present state of the law, a President cannot avoid these extralegal and philosophically wrong interventions. The very fact of the intervention proves the existence of public concerns which are not adequately accommodated by existing institutions. The public interest is increasingly a complex of interacting forces in which labor and management are only elements. A bipartite labor settlement can be inflationary. An interruption in transportation, in the supply of foods, medicines, or power, or in any of the services by which our society lives and survives almost literally from day to day can jeopardize health and safety. Suspension of the continuous flow of materials can and does cost irrecoverable loss of pay and earnings. Bipartite agreements can affect adversely the national balance of payments, the soundness of the dollar, our position in world trade, our national strength.
We dare not wait for some "black death," economic collapse, or catastrophic chain reaction to impair permanently the well-being of the American people. Presidents know these national dangers; and they do what they can to avoid them, despite the lack of adequate law and without regard to the sanctity of collective bargaining and the strike.
It is now popular to assert that the public interest sits as a third party at the bargaining table. The public interest should sit as a third party at the bargaining table, but it does not. There is no institution by which that seat is provided.
I OFFER an institution to save collective bargaining and the right to strike and give effective voice to the public interest in collective bargaining. Our labor 1aws should be amended to create an Industrial Peace Commission (IPC) as a permanent agency of the federal government. Its members would be appointed by the President with the advice and consent of the Senate, and have staggered terms so that the tenure of the commission would overlap the term or terms of successive Presidents.
IPC would be an agency comparable with the Federal Trade Commission, the Federal Communications Commission, the Civil Aeronautics Board, and other agencies in which we now reconcile conflicting interests in our free economy. Its work would be done within severe time limits; but as a full-time, continuing commission, it would be constantly abreast of collective bargaining developments and their possible impact, including the probability of strikes, upon the national interest and all substantial third-party interests.
The law creating the IPC would reaffirm all the aspects of present national policy in the Wagner Act and in the Taft-Hartley Act: the right of workers to have unions of their own choosing, the right and duty of employers and unions to bargain in good faith, the right of workers to strike and of employers to lock out, and all the fundamentals of labor policy as now established by federal law. But there would also be other declarations of national policy, such as stable currency and stable prices; globally balanced balance of payments; need for uninterrupted flow of goods and services, both for civilian well-being and for national defense; and implementation of American foreign policy by whatever constitutional commitments the President or Congress might make.
The added feature of the law would require that in any collective bargaining unit established under the procedures of the Wagner Act, as amended by the Taft-Hartley Act, either party in an ongoing collective bargaining procedure, or the President of the United States, could invoke the jurisdiction of the IPC to define the issues, find the facts, and recommend a settlement in the dispute within the frame of the complex of national policies. All parties in interest: employer, union, governmental agencies, consumer organizations, taxpayers' associations, financial institutions, to name only some -- all those who could properly claim a relevant third-party interest would be heard.
I do not lay out the many important details. Suffice it to say that the IPC would establish its own rules of procedure, just as other such agencies do; set time limits; in its discretion decline to hear parties; indeed, decline to take the case at all if in the judgment of the commission, under the declarations of policy established by the Congress, the case did not sufficiently involve a national or substantial third-party interest. Thus, irresponsible use of the commission would be avoided. But this is not a blueprint.
The findings of issues and facts and the recommended settlement would be submitted to the parties and to the public. Management and labor would then be free to accept or reject. If management rejected, the union would be free to strike. If management accepted and union rejected, then the recommendations of the IPC would be submitted to the members of the collective bargaining unit for a secret ballot election under the auspices of the National Labor Relations Board. If a majority of all the members of a unit rejected the recommendation, the union would be free to call a strike. If a majority accepted, that would be the agreement. During the proceedings of the IPC and during the voting, if voting occurred -- of course, Congress would have set strict time limits for these procedures -- the right to strike would be suspended.
Some will consider my proposal too little. They will urge that compulsory arbitration must replace the strike. Others will say that I plan too much interference with collective bargaining. The answer to both sets of critics is one word -- moderation, not voluntary, but induced by adequate institutionalism. The problem is to provide an institution in which the right of some not to be slaves and the right of others not to be victimized can be reconciled pragmatically.
My proposal would put the spotlight on collective bargaining and on the strike. Just as arms may not legally be borne in secret -- only in public -- so collective bargaining could not fail -- and the strike ensue -- in secret. If the institution of IPC corrected the failure of collective bargaining (I think it would in many cases), so much the better. If not, then the right to strike could be exercised in public, after full public disclosure. No one who believes in democracy will object to this pragmatic approach. If it proves to be not enough, then that will be the time for further measures.
I know very well that an industrial peace commission would not prevent all strikes. I know that I have made no distinction between so-called national emergencies and other emergencies. A shambles was made of that distinction in the air strike. I have made no distinction between government employees and other employees. In fact, I have tried to reintegrate jurisdictions by making the proposed IPC jurisdiction coextensive with that of the National Labor Relations Board to certify a collective bargaining unit. I would expect that the federal IPC would serve as a model for the states, as other federal models, such as the Norris-LaGuardia Act, the Wagner Act, and other progressive labor laws, were copied by the states.
I know that in proposing that the President appoint the members of the IPC, I have avoided the usual pattern of a body nominated one third by labor, one third by management, and one third from some so-called neutral source. I think that labor should come up to the mature conception that it is no more entitled to special treatment by government than is any other element in the American society. The railroads, the air carriers, the petroleum industry, the industrial companies are not given the right to nominate or to insert advocates into the offices of the ICC, the CAB, the Federal Power Commission, or the antitrust division of the Attorney General's office. Why should an industrial peace commission be a different kind of governmental commission?
It will be urged by critics of my plan that fact-finding commissions have not worked. It will be said that if workers will not follow their own leaders, why should I expect them to react favorably to the recommendations of the Industrial Peace Commission? My answer is that such a commission with tenure will develop expertise and will gain skill in articulating and defining the issues, finding facts, and reaching conclusions. Such a commission by reason of its injunction to act in the whole national interest and because of its high visibility will achieve a sanction for its determinations comparable with that possessed by our most potent institutions.
A. H. Raskin reported in the June Atlantic that when the New York subway union struck this year "it still had on the negotiating table as its only formal position a demand for a package pay increase twenty times as large as the largest it had ever got before." An IPC, either federal or state, would avoid such an absurdity. Bluff, threat, and crisis are no longer tolerable; and advocates of collective bargaining as is will lose all unless they realize that times change.
Copyright © 1966 by Leland Hazard. All rights reserved.
The Atlantic Monthly; December, 1966; Strikes and People; Volume 218, No. 6; pages 116-118