Legal Strike Incentives

September 19, 1960

It can be hazardous to write in a weekly magazine about a strike that could be settled at any hour of any day. But it seems reasonably safe to predict that the Pennsylvania Railroad strike settlement, when it comes, will be in favor of the strikers and distinctly not in favor of either the railroad or the traveling public. This will happen for the same reason that the 1959 steel strike and the recent Long Island Rail Road strike were settled in favor of the strikers and not in favor of the consumers or commuters. That reason is the existence of a set of Federal labor laws that make it all but impossible to settle a strike except by giving in to the demands of the union.

All during the long steel strike the Administration kept repeating that it was not “interfering” and would not “interfere.” Its protestations were made sincerely. They were accepted at face value by most of the press. Yet both before and during that strike the Federal government was in fact interfering every day through laws laying down one-sided rules of the game that it had enacted over the past 30 years notably the Norris- LaGuardia and Wagner-Taft-Hartley acts.

ONE-SIDED LAWS

These set up a situation in which the employers were forced to negotiate with the strike leaders, no matter how unreasonable the latter’s demands might be, for the simple reason that the law in effect compelled this and forbade the employers to negotiate with anybody else. And the strikers could throw mass picket lines around the steel mills with impunity, and physically prevent anybody else from applying for the jobs that they had voluntarily vacated, while the Norris-LaGuardia Act effectively denied the employers injunctive relief.

True, the railroad labor situation is somewhat different, owing to the fact that Congress (never troubled about consistency) has written and retained a different law for railroad labor than for other labor. Under the Railway Labor Act of 1926, elaborate machinery is set up by which no strike can take place until the President has appointed an emergency board to make strike settlement recommendations.

But the unions have found that they can successfully reject the Presidential board recommendations when these are not wholly to their liking. This happened in 1941 under Mr. Roosevelt and in 1946 under Mr. Truman. It is happening under Mr. Eisenhower in the present strike. Mr. Roosevelt simply reconvened his board and ordered it to try again; so the board dutifully brought in another decision still more in the unions’ favor. Mr. Truman personally granted the strikers more than his board had granted them. The Quill union, which has rejected the recommendations of President Eisenhower’s emergency board, is obviously hoping that something like this will happen now.

FORCED ARBITRATION?

The Pennsylvania Railroad has, unwisely, suggested that the President be given authority to compel binding arbitration in a dispute of this kind. Such a step would lead inevitably to general government wage fixing and price fixing.

The real need is to move in precisely the opposite direction. We need a sober reappraisal of the Federal labor laws of the last 35 years, and of the assumptions on which they are based. We should stop making a fetish of the phrase “collective bargaining.” As interpreted by the unions, and by government boards, it assumes that bargaining must be collective in other words, that it must not be individual. What we need to restore, both to the employer and the individual worker, is freedom of bargaining. This means that an employer should no longer be compelled to negotiate with a specified union, though he may always voluntarily agree to do so. It means that in a strike he should have freedom to hire any replacements willing to accept employment. The role of government should be to prevent violence, coercion, mass picketing, or any other form of intimidation.

The one-sidedness of our labor laws is ironically emphasized by the suit filed by the nationwide Brotherhood of Railroad Trainmen charging the nation’s railroads with “conspiracy” for daring even to set up a common strike insurance fund, and demanding that such protection be outlawed.