Strikes by Public Employees

Calvin Coolidge’s dictum “There is no right to strike against the public safety by anybody, anywhere, any time" still stands strong in the minds of many, but strikes against government are in fact happening with increasing frequency. The time is near, says the distinguished labor relations expert and editorial writer for the New York TIMES,when the ban on strikes by public employees will have to be reinforced or abandoned. Which way will society bend?

by A. H. RASKIN

AMERICA’S most expansive “growth industry" is state and local government. The urban explosion has caused the number of employees on city and state payrolls to skyrocket from 3.5 million twenty years ago to a present total of 8.5 million, and 4 million more are expected to join the job list by 1975. An unwelcome companion of this expansion has been an erosion in the traditional civil service concept of no strikes against the government. With one sixth of the work force now in some branch of government, unions have brought into public employment many of the militant practices they used to organize the mass-production industries in the early years of the New Deal.

Teachers in New York, Detroit, and a score of smaller communities were on the picket lines when the bell rang for the opening of the public schools last September. Policemen and firemen walked off their jobs in the Ohio steel center of Youngstown until they got higher pay. Garbage collectors, welfare workers, doctors and nurses in municipal hospitals, ferryboat crews, zoo keepers, and almost every other category of public employee have struck in one community or another across the nation. Subway and bus workers, who paralyzed New York with a twelve-day strike at the beginning of 1966, are holding a similar economic club over the metropolis as they near another New Year’s Day contract deadline.

For the cities, already staggering under the unsolved problems of the slums, conflict between the races, polluted air, inadequate educational and health facilities, crime in the streets, and a thousand other afflictions, this upsurge of militancy creates a double headache. The community must suffer the pain inflicted by the strike’s cutoff of a governmental service. Then, to the extent that the coercive effect of the cutoff has been to compel an unjustifiably expensive settlement, the community must raise taxes or divert scarce resources from services that were probably underfinanced to start with. The worst part of this double squeeze is that the unions whose members work in the most vital of civic agencies are, for that very reason, in the best strategic position to extort excessive pay packages through the application of economic muscle.

Theoretically, civil service strikes are just as illegal today as they were in 1919 when Calvin Coolidge, then governor of Massachusetts, backed the firing of Boston police strikers with the declaration that “there is no right to strike against the public safety by anybody, anywhere, any time.” Labor’s general status has changed enormously in the half century since that affirmation of the state’s sovereignty over any strike challenge started Coolidge on his climb to the presidency. However, the officials who contributed most conspicuously to erecting legal safeguards for unionization, collective bargaining, and freedom to strike for workers in private industry have never deviated from the Coolidge doctrine that strikes by public employees represent illegal insurrections against the structure and security of government.

The father of the New Deal, Franklin D. Roosevelt, put his view bluntly in a message to an organization of federal employees in 1937. “Since their own services have to do with the functioning of government,” he said, “a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of government until their demands are satisfied. Such action, looking toward the paralysis of government by those who have sworn to support it, is unthinkable and intolerable.”

The co-author of the Norris-La Guardia AntiInjunction Act, Fiorello H. La Guardia, was equally hostile to the idea that government workers should be allowed to strike. When strike threats arose during his three terms as mayor of New York, the Little Flower’s response was unyielding: “The city does not and cannot recognize the right of any group to strike against the city.”Robert F. Wagner, Jr., whose father wrote labor’s Magna Carta, the Wagner Act, stood on the same no-strike platform as La Guardia in his twelve years at City Hall. And when President John F. Kennedy promulgated the first unionization code for federal employees in 1962, he was at pains to restate the inviolability of the ban on government walkouts.

But for all these declarations and the regularity with which they have been backed up by specific legislative taboos and court decisions, the question never stays snugly buried. Strikes do occur against the government, and the country faces a basic decision on whether the ban can be made to work or whether it would be wiser to abandon it lest the frequency with which it is defied—and the substantial rewards that often accompany defiance — contribute to a disrespect for all law and established authority, with even more disastrous results for society.

To ARRIVE at an intelligent decision, three areas of exploration are worthwhile. One involves looking into the appropriateness of the line that is now drawn between the rights of workers in public and in private employment. The second is what differences there are, and why, in the effectiveness with which the no-strike policy is being observed in various sectors of public service. The third is whether enough is being done to assure equity for government employees and thus make strikes unnecessary, with or without laws. A corollary of all these, obviously, is an examination of the adequacy of arrangements to make sure that the citizens who pay the bills are not forgotten in the fair-treatment department.

The proliferation of government activities keeps adding complexities to the problem of establishing boundaries between functions that are distinctly the province of government and those that belong in the private economy. Coping with floods, earthquakes, or tornadoes is clearly an emergency service of government, and few would find much difficulty in saving that strikes are unthinkable for such disaster crews. But the answer is a lot fuzzier when it comes to applying the strike prohibition to clerks dispensing bottled comfort in a state-owned liquor store. In sixteen states with liquor monopolies the clerks must stay on the job; in all the rest of the states the flow of liquid cheer dries up when the store owners and their unionized clerks disagree on the mix for a new contract.

The boundary becomes still more foggy when it is applied to so essential a field as transit. In New York the subway system was privately run until the financial difficulties of the two rapid transit companies forced the city to take them over in 1940. Drivers on the major bus lines in Manhattan and the Bronx operated under private contract and were free to strike until the city seized their franchises in 1962. Now the same men drive the same buses over the same routes, but they are outlaws when they and the subway workers go on strike, as they did in 1966. The city-owned bus lines intersect with lines still under private ownership; their drivers belong to the same union but do have a legal right to strike.

Similar interchangeability characterizes many other functions of great importance. Municipal hospitals and voluntary hospitals perform services so indistinguishable that many are united through affiliation contracts or partnerships in medical centers. Electric utilities, waterworks, and gas plants are privately operated in some cities and publicly operated in others. Warships are built in navy yards or in private yards. The multiplicity of such overlaps has led many analysts to conclude that it is unrealistic to insist on retention of an absolute ban on strikes by public employees — one based solely on the fact that they work for a government agency.

Those who favor an easing of the ban argue that the only valid test for forbidding strikes should be the essentiality of the service at stake. The trouble with that line of demarcation is that in practice it proves impossible to draw. Virtually everyone will go along on the proposition that policemen and firemen should not have the right to strike, but beyond that it becomes quite hopeless. Sanitation employees, teachers, transit workers all insist their jobs should not be on the prohibited list.

And it is already plain that any breach in the no-strike principle invites its total destruction. The International Firefighters Association has set up a committee to reconsider the voluntary renunciation of strikes that has always been part of its union constitution. Before the Youngstown walkout of policemen and firemen last September, a mass epidemic of “sickness” kept Kansas City firemen away from their station houses and a “blue flu” hit the Detroit police force. In New York and a half-dozen other cities, the men on whom the community relies to combat crime and avert civic disaster have shown that restiveness in the civil service cannot be quarantined on the basis of what is imperative and what is deferrable — or a municipal boondoggle.

The real basis for holding indivisible the doctrine that “you can’t strike against the government” lies in the nature of government as the embodiment of all the people. It is not an employer organized for profit, so the conventional notion of strikes as tests of strength in which the pressures of the marketplace operate to constrain both management and union lacks pertinency. The services government provides, no matter how unglamorous, are essential, or government shouldn’t be doing them.

In that sense, a strike against government becomes an interference with the political process, an attempt by one segment of the people to exert its control over a specific service as a weapon to coerce the whole community into submission on its terms. And the more vital the service, the greater the chance that the community will have to capitulate.

A kind of Gresham’s law operates in this field, with bad practices tending to drive out the good. Once civil service unions become convinced—as many already have — that strikes pay dividends in fatter contracts, union leaders who demand adherence to law are likely to find themselves exleaders. Before New York’s teachers went out on strike this year, their union president, Albert Shanker, described two crucial earlier disputes in which the teachers had been told categorically that the city would not grant their key demand. Both times the authorities changed their minds after a one-day strike.

“Now we are beyond abstract lessons in legality,” Shanker said. “Perhaps it is a bad lesson to have learned, but the city has convinced us that striking brings us gains we need and cannot get any other way.” The third strike, begun a few days after that interview, lasted fourteen days. It brought the teachers a settlement three times as large as the biggest they had ever got before.

Not the least of the concerns raised by such tactics is that the infection will spread to the federal civil service, where relations have been much more amicable than they are in the municipal field. More than a million of the 2.8 million federal employees are in unions, with organization particularly high among postal workers and bluecollar employees in arsenals, naval yards, and other federal establishments. Even though there are three times as many workers on state and local payrolls, the number with union cards is generally estimated at well under the million in federal jobs.

Despite the higher concentration of unionists on the U.S. payroll, strikes have been close to zero. The only recorded walkout in recent years was a wildcat strike of eighty-five sheet metal workers at the Tennessee Valley Authority in the summer of 1962. All the strikers were fired, and their union helped the government recruit replacements. However, the recent strike wave among municipal employees has stirred currents of unrest in the federal service. In August, for instance, 2500 Brooklyn letter carriers made secret plans for a mass “sick” strike over wages. The Civil Service Commission learned of the stay-home a day ahead of time, and notified the union leaders that the government would have no choice but to discharge all the workers. The union chiefs got on the phone, and the demonstration was called off.

There have been several other near-misses among postal workers, nurses in Veterans Administration hospitals, and scattered other groups, even though the heads of most federal unions are in basic sympathy with the no-strike idea. By way of ensuring that there will be no breakdown in the present relative tranquillity, President Johnson has a Cabinet-level committee at work reviewing the existing federal rules and recommending changes to improve relationships.

ALL of this raises the central issue: Can the prohibition on strikes be made to work, or will the virus become so assertive in state and local agencies that it will sweep away the restraints in the federal service as well?

One assertion can be made with some certainty. The prohibition will not survive in the American climate if its maintenance depends primarily on the severity of the penalties for violation. A tough law now backs up the ban on federal strikes. This law, passed in 1955 as a carry-over from the TaftHartley Act of 1947, makes it a felony to strike against the government. Anyone who does is subject to a year in jail and a $1000 fine. The same law makes mandatory the removal from the federal payroll of any worker who asserts the right to strike or belongs to an organization that asserts the right to strike. No person has ever been brought to trial, much less imprisoned or fined under that law, in the twelve years that it has been on the books.

However, similarly stringent penalties have proved scant deterrent to municipal strikes. On the contrary, New York State discovered that an overly rigid law could prove unenforceable, partly because local politicians were too fearful of union reprisals at the polls but also because imposition of the punishments would cripple government processes as drastically as did the strike itself.

The result was a decision by the state legislature last April to repeal the twenty-year-old CondonWadlin Act, which required the dismissal of all civil service strikers and barred them from pay increases for three years if they were later reinstated. The sanctions were supposedly automatic, but the knowledge that vital services could never be restored if 50,000 teachers or 35,000 subway workers were kicked out of their jobs in one draconian swoop caused municipal authorities to ignore their sworn obligation to enforce the law. The final irony, when irate taxpayers went to court to insist that the law be carried out, was a series of special bills under bipartisan sponsorship in the legislature to give retroactive forgiveness to the strikers. That made everybody a partner in flouting the law, for fear that failure to solemnize the fruits of one illegal strike would expose the nation’s biggest city to a rerun.

With the Condon-Wadlin Act now consigned to the dustbin of history, New York is testing a new law that has all the ingredients for becoming a national model on how to prevent civil service tieups by assuring fair treatment to public employees and the public alike. But even though the law did not become operative until September 1, organized labor and many other ill-wishers are already forecasting that the revised curb will prove as futile as its predecessor. What’s more, they are working overtime to make that forecast come true.

The fatal flaw of the old statute was that it was all penalties and no peace machinery. The new law, drafted with the aid of five of the country’s foremost experts in industrial relations, seeks better balance in three distinct ways. It puts on New York’s statute books the first code of rights the state has ever had for public employees — one that extends to them comprehensive guarantees for unionization and contract negotiation.

It also provides a mechanism for resolving controversies over wages and all other issues through impartial fact-finding if direct negotiation and mediation fail. A union dissatisfied with the fact finders’ recommendations can carry its complaint to the elected authorities in the legislature or the city council. If the union’s end decision is to defy the law by striking, it becomes subject to penalties, but these do not take the form of wholesale dismissals or other punishments directed against individual strikers. Instead, the new law puts its emphasis on squeezing the union’s pocketbook through fines and withholding of rights to the automatic checkoff of union dues.

Using distinguished neutrals to make recommendations for breaking deadlocks on wages is particularly appropriate in the civil service. It helps protect public employees against the danger of being shortchanged by administrators chronically afflicted with appropriations too small to meet all the needs of their agencies. In similar fashion, third-party determination of what equity requires provides the administrators with a shield they can use to repel the complaints of taxpayers who feel they are opening the wage tap too wide. Deciding how much workers should be paid is far from an exact science, and impartial aid is much in order where the workers are prohibited from striking and the employers are trustees standing in for the whole community.

The union hostility to the sensible procedures the New York law sets up in this field is especially quixotic in the light of the mild or nonexistent objections the unions raise to federal wage practice. The executive order governing union relationships in the federal service explicitly excludes wages from the sphere of labor-management negotiation. That is a field reserved for Congress, and unions are obliged to put their trust in the effectiveness of their lobbying activities, a very different line of work.

The pattern-setter in this field was William C. Doherty, for twenty-one years president of the National Association of Letter Carriers, who became Ambassador to Jamaica by appointment of President Kennedy in 1962. A cigar-chomping glad-hander, quick with a drink or story, Doherty made so many friends on Capitol Hill that he regularly repulsed economy drives to get more cash for his members. Under Jerome J. Keating, the union’s present leader, the same magic is being practiced. Part of the explanation came out with the disclosure that Representative Thaddeus J. Dulski of Buffalo, chairman of the House Post Office and Civil Service Committee, had collected $11,000 two years ago from a testimonial dinner financed largely by the postal unions. The newer breed in the municipal unions uses power as its chief persuader, it demands rather than petitions.

IN THIS period of ferment in civil service unionism, with patterns forming three decades after the dawn of industrial unionism, impartial fact-finding can be as beneficial on noneconomic disputes as it is on how much money to put in the pot. The nature of the urban crisis and the frustrations it thrusts on municipal employees have made it inevitable that public unions will be much more assertive in pressing for a voice in policy than are unions in steel, trucking, or meat-packing.

In New York the Social Service Employees Union struck for six weeks—and lost—over demands that the welfare department give relief clients automatic semi-annual grants for clothing and a monthly allowance for telephones. In the school strike the United Federation of Teachers had a much harder time with the hoard of education on its demands for a contractual commitment to expand an experiment in more effective schools than it did on its pay program. The American Federation of State, County, and Municipal Employees threatened an immediate strike if New York implemented a plan to turn its municipal hospitals over to the voluntary hospitals for administration.

Obviously, the workers whose lives are spent dealing with the problems and people involved in all these issues have a relevant contribution to make on how the problems can best be solved. Equally obviously, such issues involve too many interests and complexities to be disposed of under the club of a strike. And no less obviously, administrators are not cheerfully going to surrender their prerogatives in the policy area, even where they are not bound by legal prohibitions against any dilution of authority.

The surest guides through this thicket are third parties detached from the emotional embroilment that always surrounds a battle over prerogatives. The need in such cases is for the establishment of continuing committees in which management and union representatives are joined by technical experts or spokesmen for concerned community groups to seek answers in an atmosphere free of the countdown tensions of a strike deadline. There is much to be said for long-range joint committees, in any event, as instruments for day-to-day cooperation in the efficient conduct of public affairs and the avoidance of future explosions.

The saddest aspect of organized labor’s reaction to the new law through which New York seeks civil service peace with justice has been the mindless character of its hostility to the entire venture. At a mass rally in Madison Square Garden a few weeks after the law was passed, the bloody shirt was waved as if the legislature had moved the state back to the era of Homestead, the Danbury Hatters, Haymarket Square, and the Ludlow massacre. Twenty thousand members of all the major unions of municipal employees took a collective vow to “reject and repudiate this law, this illegitimate offspring of diseased bipartisanship.”

The teachers’ strike started exactly eleven days after the law went into force. The negotiations were already too far along to permit application of all the law’s procedures. That left only the negative features — the penalties for violation—as operative elements. However, Mayor Lindsay did invoke fact-finding in a manner not basically different from that which would have applied if the law had been in effect all the way through.

The result was disheartening. The fact finders, headed by Professor Archibald Cox of Harvard Law School, former Solicitor General of the United States, proposed pay increases averaging $1700 a year, the most substantial wage rise the city had ever offered to any major group of its employees. On matters affecting educational policy, the panel went further toward giving the union a say than pleased the board of education. But the union leadership turned thumbs down; the membership ratified its decision, and the strike was on — for fourteen days.

The mayor insisted, with more vehemence than persuasiveness, that the final terms were precisely in line with the Cox panel’s recommendations, but the average pay increase rose to $1900 a year and the school board had to agree to more of the policy modifications the union desired. Shanker, the union president, called the outcome “fabulous,” and the conviction in union ranks that strikes are the way to get more from the city was reinforced, even though a judge sentenced Shanker to fifteen days in jail for defying a back-to-work injunction and fined the union $150,000 for violating the new law. The case will probably drag through the higher courts for at least a year before a final decision is handed down. The Transport Workers Union, now involved in talks for a new subway agreement, has made it clear the law will be no deterrent if it is dissatisfied with what it gets at the bargaining table.

WHERE does all this leave us in terms of a program that will provide protection for the community as well as the people who work for the community? There is no question that the prospect for the next few years is one of increasing turmoil in city, state, and federal employment. Part of it is the general rebellion against all institutions, and what institution is stuffier, more tradition-ridden than government itself? Part is the drag of encrusted inequities, archaic work standards, and the resistance of taxpayers to the ever rising cost of public services. And part is the newness of the relationship, the necessity for throttling under the compulsions of a no-strike mandate the kind of irritations that erupted in sit-down strikes and picket-line violence when the basic industries were being organized three decades ago. In civil service the angers are less the product of employer arrogance or oppression than they are the acid fruit of the despair that wells out of daily grappling with the limitless woes of the cities, in the schools, the welfare depots, and other public agencies.

For all its ineffectiveness in the New York school strike, the new law there does point the way toward an orderly adjustment of all these problems by meeting the essential test of two-way fairness. It creates opportunities as well as responsibilities on both sides; the penalties it authorizes are realistic and reasonable. Indeed, if there is a sound argument against them, it is that the maximum fine of $10,000 a day is too low to deter a powerful union. Shanker scoffed that the penalty amounted to only 20 cents a day for each member of his union.

The ritualistic objection of labor that any law prohibiting strikes is a reinstitution of slavery squares badly with the record in the federal service. When the bill barring any employee who even asserted the right to strike from holding a federal job was before Congress, all the major unions and associations of federal workers testified in its favor. The railroad unions have twice complied with compulsory arbitration laws forbidding rail stoppages; George Meany himself served on the presidential panel that decreed the settlement terms under the law that ended the railway shoperaft tie-up last summer. Testifying in October before the Cabinet committee on revision of the union code for federal employees, Meany urged arbitration as the solution for all unresolved disputes between government and its unionized workers. He did not challenge the strike ban.

The important thing in the months and years ahead is to build up labor-management relationships in the civil service that will make the no-strike law work — not because of its sanctions, but because the workers, the unions, the administrators, and the citizens are satisfied that it operates for their mutual benefit. “No law is any good unless people accept it,” comments a high-ranking federal official. “Our aim is to keep our personnel practices and pay standards in such good shape that responsible union leaders will not be at the mercy of demagogues who try to shoot them down for upholding reasonableness and orderly procedure.”

The relations will have to be different in many ways from those that have been normal in private industry. Unionization must not become a vehicle for grafting a new bureaucracy onto the already bureaucratized structure of government. New rigidities and new inefficiencies are no need in the public sector. The hope that underlies the Kennedy executive order of 1962 and the similar codes of union rights issued by many governors and mayors is that a more alert, more productive, and better-staffed civil service will develop out of cooperative labor-management policies.

The kind of leapfrogging that has pushed up labor costs in shipping, newspapers, and other industries plagued with multiple unions, each eager to climb over the back of the one before to get something extra for its members, can be particularly damaging where the community is paying the bill. Centralized bargaining will be a necessity to guard against such whipsaw tactics. But bringing all public employees into a single union or a coordinated bargaining council is no guarantee of stability for the community. One reason the Transport Workers Union has such a stranglehold over New York’s transit lifeline is that the city deliberately killed off the splinter unions that used to have separate negotiating rights for motormen, signalmen, and other skilled groups. Union responsibility and restraint must accompany arrangements that give a single negotiating team stop-or-go power over all civic services.

As if all these considerations do not pose difficulties enough, there are still others to worry about in the purely political realm. The mushrooming of the civil service makes public employees an increasingly potent force in election campaigns and the yearround financing of local political machines. Unions have traditionally steered clear of acquiring ownership interests in the businesses whose employees they represent. Even with billions of dollars in pension and welfare reserves currently available for investment, union trustees generally insist on buying the securities of companies outside their own industry to avoid any taint of conflict of interest.

But in his capacity as a citizen, every public employee is automatically a shareholder in the governmental unit for which he works. In New York City the 300,000 municipal employees and their families account for at least a million of the city’s 8 million people. Envisage a political alliance between them and the 750,000 people now on the public relief rolls in New York, and you have a force of such dimensions that no aspirant for civic office could afford to discount its potential election role. In Philadelphia last November unionized civil service workers and their allies in organized labor were principally responsible for the re-election of Mayor James H. J. Tate. A national coalition of public employees, relief clients, and pensioners might revolutionize the country’s political life, especially if the integrating element is a common discontent with the adequacy of payments from the public treasury.

The missing ingredient in civil service unionism thus far is any widespread recognition that collective bargaining must be a two-way street. Until it is, we, the people, will be doing most of the giving and very little of the getting.