Re: [Pen-l] the "general strike" in Iran and the U.S.

[Robert Naiman <naiman@xxxxxxxxxxxxxxxxxxxxx>]

Thanks for this informative discussion. One last question: somewhere
it was mentioned in the discussion that the conditions in which a
"general strike" might otherwise be expected to arise would be likely
to be solidarity strikes governed by Taft-Hartley.

Wasn't the 1906 general strike in San Francisco in fact a solidarity
strike? Are there other historical U.S. examples that speak to this
question?

On Tue, Jun 23, 2009 at 12:37 PM, <knowknot@xxxxxxxxxxxxxx> wrote:
> At the risk of belaboring the obvious, and also of belaboring matters of law
> on a list devoted primarily to matters of economics and to more general
> economics related political concerns, Mr. O'Connor's glib reply to my
> comment/query quoted in full below illustrates not merely the abstractly
> "metalegal" (i.e., non real-life elements) of the (putatively) "legal"
> question whether, as he said earlier, Taft-Hartley makes a general strike in
> the U.S. "absolutely [sic] illegal" or devolves into an itself politically
> and intellectually vacuous definitional kerfuffle about what a "general
> [sic] strike" would mean in a milieu, as (regrettably) at present in the
> U.S., in which, especially the private sector compared with the
> 1940s-through-1950s, unionization has dwindled radically.*
>
> There are, to be (somewhat) sure, provisions state and federal law that deal
> with public sector employee strikes and of federal law that address
> "national emergency" related general strikes within particular industries --
> e.g., most notably, in the railroad and related transportation industries --
> and also some provisions in Taft-Hartley (but very far from "absolutely"
> such) that deal with strikes which, depending on particular context, are
> unlawful.
>
> But it is ridiculous to cite the unfair labor practice provisions of
> Taft-Hartley, which require the existence of a
> union-management/collective-bargaining relationship to become applicable, as
> if significant for a nationwide "general strike" as that term is now most
> commonly understood.   Indeed, as Sen. Taft  (in this otherwise
> comparatively narrow context) famously said in emphasizing what he, as
> Taft-Hartley's principal drafter, emphasized what that law did _not_ provide
> for:
>
>  "We did not feel that we should put into the law, as a part of the
> collective
>  bargaining machinery, an ultimate resort to compulsory arbitration, or to
>  seizure, or to any other action. We feel that it would interfere with the
>  whole process of collective bargaining.  If such a remedy is available as a
>  routine remedy, there will always be pressure to resort to it by whichever
>  party thinks it will receive better treatment through such a process than
>  it would receive in collective bargaining, and it will back out of
> collective
>  bargaining. It will not make a bona-fide attempt to settle if it thinks it
> will
>  receive a better deal under the final arbitration which may be provided."
>
>  "We have felt that perhaps in the case of a general strike, or in the case
>  of other serious strikes, after the termination of every possible effort to
>  resolve the dispute, the remedy might be an emergency act by Congress
>  for that particular purpose."
>
>  "I have had in mind drafting such a bill, giving power to seize the plants
>  and other necessary facilities, to seize the unions, their money, and their
>  treasury, and requisition trucks and other equipment; in fact, to do
>  everything that the British did in their general strike of 1926. But while
>  such a bill might be prepared, I should be unwilling to place such a law
>  on the books until we actually face such an emergency, and Congress
>  applies the remedy for the particular emergency only. Eighty days will
>  provide plenty of time within which to consider the possibility of what
>  should be done, and we believe very strongly that there should not be
>  anything in this law which prohibits finally the right to strike."
>
>  93 Cong.Rec. 3835-3836.
>
> And of course it was this language that material influenced the U.S. supreme
> court to invalidate Pres. Truman's attempted 1952 seizure of the steel mills
> in his effort to avoid a nationwide strike by unionized steel workers in the
> Youngstown case (343 U.S. 579).
>
> As a matter of Real Politick, however, I do not doubt that state and federal
> courts and other governmental bodies, possibly including the federal
> executive branch, would devise means they characterize as (if) "law" to try
> on an ad hoc basis to put down an actual general strike, or numerous
> nationwide general strikes, in the (again: fantasitical?) event that there
> were such; although even if so, trying to predict ("speculate"? "guess"?)
> how such scenarios possibly would occur would be (and as noted) a classic
> exercise in "meta" theorizing.
>
> Anyway, insofar as Mr. O'Connor's rejoinder is concerned, if there were
> actually a _general_ strike, which by (my) definition would include
> non-union workers and other citizens, it would require fantasizing, not
> meaningful analysis of law, to presume that presently existing NLRB
> procedures even if facilitated by ancillary judicial procedures would be
> even (practically) relevant much less "absolute[ly]" significant.
>
> --------------------------------------------------------
> * He said:
>
>> knowknot@xxxxxxxxxxxxxx writes:
>>
>>> Apart from this being, at best, a theoretical metalegal" but not
>>> real-life legal question and from the related fantastical factual
>>> premise of the above ruminations (i.e., that it is not
>>> culturally/politically unrealistic even in light of presently ongoing
>>> circumstances to posit anything close to a general strike in the
>>> U.S.), what provisions of the Taft-Hartley Act (whether as originally
>>> enacted or as since amended) or, for that matter, anywhere else in
>>> U.S. law make a "general strike" as that term is commonly understood
>>> "absolutely illegal in the U.S."?
>>
>>
>> http://www.law.cornell.edu/uscode/uscode29/usc_sec_29_00000158----000-.html#FN-1REF
>> ...
>> It shall be an unfair labor practice for a labor organization or its
>> agents—
>> ...
>> to engage in, or to induce or encourage any individual employed by
>> any person engaged in commerce or in an industry affecting commerce
>> to engage in, a strike or a refusal in the course of his employment to
>> use, manufacture, process, transport, or otherwise handle or work on
>> any goods, articles, materials, or commodities or to perform any services;
>>
>
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-- 
Robert Naiman
Just Foreign Policy
www.justforeignpolicy.org
naiman@xxxxxxxxxxxxxxxxxxxxx
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