[PEN-L:11718] Re: Taft Hartley

[Michael Eisenscher <meisenscher@xxxxxxxxxxx>]

Questions have arisen regarding Taft-Hartley and its applicability to the
UPS strike.  While I am not an historian or lawyer, I have consulted some of
the literature and obtained a general explanation, which I share here.
Others with more expertise may want to clarify or correct any improper
interpretation I provide.

There is a provision in the Taft-Hartley Act that, under certain
circumstances, gives the President the power to compel workers on strike to
return to their jobs (or employers who have locked out workers to readmit
them to their jobs) for a "cooling off" period.

As I understand it, the President must make a legal finding in order to
initiate and back-to-work order.  He must determine whether the situation
meets the legal test of a national emergency as defined in the legislation.
It is this which Clinton is saying keeps him from issuing an order.  He
claims, rightly so, that the strike, while it creates inconvenience and
losses for some, does not constitute a national emergency as defined by T-H.
The "national emergency" provisions are contained in sections 206-210 of the
T-H Act, 29 U.S.C.A. 176-80.

This is what Gorman says in Basic Text on Labor Law, Chapter XVIII,
"National Emergency Disputes":

"The President of the United States is authorized by the Act to appoint a
board of inquiry should he believe that a threatened or actual strike or
lockout, affecting an entire industry or a substantial part of an industry
engaged in interstate commerce, endangers or will endanger the national
health or safety....The board of inquiry is empowered to conduct private and
public hearings to gather information, and is within the time specified by
the President to tender a report to him on the facts of the dispute and the
parties' positions; the board is expressly forbidden to forward any
recommendations.  Upon receipt of the report, the President must make it
public and file a copy with the Federal Mediation and Conciliation
Service....The President is also authorized (not required) upon receipt of
the report to direct the Attorney General to petition for an injunction
against the strike or lockout in any federal district court having
jurisdiction over the parties, and the court is given jurisdiction to issue
the injunction if it finds that the strike or lockout 'affects an entire
industry or a substantial part thereof' engaged in interstate commerce _and_
that without an injunction the 'national health or safety' would be
imperiled."  If an injunction is issued, the parties are required to submit
to mediation.  The Pres. is required to reconvene the board of inquiry,
which after sixty days reports to the Pres. on the current situation if
there has been no settlement.  The report is to be made public, and the NLRB
is within 15 days to conduct a secret-ballot poll to determine whether
employees involved approve of the employer's final offer.  The board then
certifies the results of the poll within five days to the Atty. General, who
then is required to move the court to discharge the injunction.

Thus the total delay in the strike available to the Pres. is 80 days.  If it
is not settled by then, the strike may resume.

The language of the Act has been found to mean that the court need only find
a 'danger' of a 'threat' to the national health or safety.  A threat to
national safety has been found most readily when there is a threat to
military procurement or production for military use.  Gorman notes that the
threat to national health is less clear.  Absent a definitive ruling from
the Supreme Ct., lower courts have been inclined to interpret the phrase
broadly to mean 'economic well-being,' not narrowly as 'physical
well-being.'  In one district court ruling, an injunction was denied because
a dockers' strike was found not to constitute a threat to national health
merely because it created economic dislocation, but an appeals court ruled
that the district court interpreted the phrase too narrowly.  That court
would require no more than a finding that a national emergency existed by
virtue of a significant adverse effect upon the 'essential well-being of the
economy.'  The broad and general interpetation seems to have prevailed, but
the Supreme Ct. has yet to make a definitive ruling.

Once an injunction is issued, only the govt. has standing to seek contempt
citations for violations.  Neither the employer nor the union has standing.
Between 1947 and 1967, roughly half of the 24 strike injunctions ran their
course without a settlement, with strikes occurring in roughly half of those.

These provisions of Taft-Hartley are, as Ellen Starbird has observed (see
below) one element in the larger anti-labor nature of the Act.  In essence
the law says "Workers have a right to strike, just so long as their strike
won't actually be effective.  If it threatens to be really effective, the
government has the right to force strikers back to work."  I am aware of no
situation where the back-to-work provisions of T-H have been used against an
employer in a lockout situation.  Maybe an historian out there in cyberspace
can come up with one.  Clinton, who has done next to nothing for unions
since his election (and has done plenty to them), will likely resist
pressure to implement the emergency provisions of T-H unless some of his
larger donors collectively exert their unique influence.  In this way, he
can appear as a 'friend of labor' and pay down his debt to the labor
movement.  However, Slick Willie is never one to get hung up on principle.
If the political heat gets too strong, if his wealthy political investors
call in their chits, we can expect the Prez to cave.  Clearly, he hopes it
will all get settled before it comes to that.  Expect the Democratic
political operatives to lean heavily on Carey and Sweeney in an effort to
force them into a "compromise" that will end the walkout.  (In that respect,
it is heartening that Sweeney announced today that he was contacting the
leadership of every affiliate to secure loan commitments sufficient to carry
the Teamsters for as long as is required to win a decent settlement.)

It is important, therefore, that strike supporters include a letter, email,
or fax to Clinton expressing your opposition to the invocation of
Taft-Hartley in the UPS strike.  Organizations should also send letters and
resolutions to that effect.  Letters to the editor should be sent to local
papers and opportunities should be seized to get on talk shows to express
opposition to use of T-H.

In solidarity,
Michael

At 07:23 PM 8/12/97 CDT, anzalone/starbird wrote:
>Dear Editor,
>
>Frequently the press has trouble getting the facts straight with regard to
>legal facts. It is after all, an issue of little concern to those who
>purchase ad space. However, the UPS management's bantering of the Taft
>Hartley Act as a "solution" for the UPS strike,  delivered as it has been
>to the public by the media with a straight face is either egregiously bad
>journalism or just dishonest propaganda.
>
>Since my father always taught me not to assume dishonestly where an
>explaination of stupidity would suffice, let's assume no one on your staff
>knows anything about labor law:
>
>Fact #1)
>
>Taft Hartley is an odious piece of anti-worker legislation used only in
>this country to curtail worker's political rights. Almost all other
>countries allow solidarity (those who remember PATCO might recall the one
>day refusal to allow U.S. planes to land by othe nation's traffic
>controllers). In the U.S. it is illegal; such as in the case where the
>Longshoreman were fined by the Supreme court for refusing to unload cargo
>from Poland (in support of Solidarity) and South Africa (to protest the
>then apartheid regime.)
>
>Fact #2)
>
>The Taft Hartley Act outlaws SECONDARY pickets and boycotts. In other
>words, workers who are not employed by the company targeted for action
>cannot refuse to handle its' cargo. The court can assume that since the
>employer cannot necessarily meet their demands the action is "unfair".
>
>Should the postal carriers, for example, refuse to handle mail suddenly, on
>the grounds that they wanted to help the Teamsters win at UPS, then the UPS
>would have a Taft Hartley complaint. Under such a Postal Carriers for
>instance UPS could legitimately seek (invoking Taft Hartley) an injunction.
>
>
>Fact #3)
>Taft Hartley does not apply to the UPS situation. At all.
>
>Since the Teamster workers have a PRIMARY relationship with UPS, the
>company is required by law to bargain in good faith as the ONLY solution to
>its dilemma. The worker's by law, have the right to withhold their labor.
>
>There is no secondary "hot cargo" boycott. All we have here is a
>belligerent employer who seeks to evade their bargaining obligations by
>attempting to hide behind the President. The clients who are not getting
>their cargo delivered by UPS are suffering not from a Taft Hartley
>secondary boycott;  but a UPS management that is as seemingly callous to
>its client's inconvenience as it is unwilling to negotiate with its own
>employees.
>
>It is no more appropriate for UPS to demand that the President issue an
>illegal injunction under a Taft Hartley than it would be for Teamster Chief
>Ron Carey to ask Clinton to evoke some obscure legislation, call out the
>National Guard and summarily execute the UPS executives as a "solution" to
>the strike.
>
> Less dramatic, non-governmental solutions between the parties are
>appropriate. Loath as they apparently are to doing it; for the UPS
>management negotiating with their employee's union is their only legitamate
>legal remedy.
>
>Perhaps out of ignorance the press parrots UPS' baby talk conceptualizing
>of labor law as though it were legitimate discourse. It is not. President
>Clinton has no appropriate role except to refer the parties back to the
>bargaining table. For the press to allow the company spokespersons to
>pretend otherwise does a public disservice to the highest office in the
>land and a greater disservice to the truth.
>
>Sincerely,
>
>Ellen M. Starbird
>Labor Studies Instructor, Laney College
>
>
>