Rare Periodicals

Settlement of labor disputes in the industries affected with a national interest

Media

Part of The Lawyers Journal

Title

Settlement of labor disputes in the industries affected with a national interest

Creator

Williams, Jerre S.

Language

English

Year

1963

Subject

Labor disputes.

Collective bargaining.

Collective bargaining -- Government policy.

Wage bargaining.

Labor policy.

Rights

Fulltext

SETTLEMENT OF LABO'R DISPUTES IN INDUSTRIES AFFECTE!D WITH A NATIONAL INTEREST* By JERRE;. S. WIUIAMS Professor of Law, University of Texas SchCJol of Law RECENTLY WIDELY publicized lo.bar disputes reveal a serious need for re-evaluation of collective bargaining and also of the procedures being used for dealing with crltical work stoppages. The initial postulate should be the pr_eservation of the free· collective bargaining system. Yet we must be willing· to admit honestly that the freedom to barga.in cannot be allowed alwal's to prevail. Prolonged strikes in some critical areas cannot be tolerated. Further, we have recently begun to realize that contract settlements without work stoppages in sorqe industries may hr.\.'C such permeating effects on the economy that public concern tor the bargain is inescapable. These considerations make it impossible to define with precision those labor disputes which affect the national interest. There is a broad difference between critical production stoppages and inflationary wo.ge settlements, yet both situations evoke the national interest. In some instances the national- interest in labor disputes will be only generally involved, but tn . others it will be intei;ise and immediately demanding. These "' Here is the winning paper in the 1963 Ross Essay competL tion sponsored by the American Bar Association under a bequest from the late Judge Eskine Mayo Ross. Mr. Wllliams declares that collecti,,·e bargaining must be nurtured and strengthened so that the drastic measures that might be necessary to settle na.. tional-emergency strikes may be kept within narrow bounds. This article is reproduced from the AMERICAN BAR ASSOCIATION JOURNAL Vol. 49, No. 9, Sept., 1963; pp. 862-868. THE PHYSICIAN'S . . . (Conth1ued from page 358) Considering the present trend towards the medical profession which beats by a mile other academic professions, the question m&.y be asked: Is there need of moratorium in the study of medicine in the Philipi:iines? Many will no doubt give an affirmative answer bearing in mind that in this era of science, technology aod industrlaliz&tion there ls more need of technical and scientific men than men of letters, phllosophy, law and medicine. Our country ls endowed ·with rlch natural resources which remo.in untapped and await only the hands of technical men to make them productive, thus contributing to our economic advancement. Technology is the thing we need coupled wth the promotion of vocational courses to give impetus to our economic growth and natural wealth. Dr. Juan Salcedo, President of this Association, who is the Chairman of the National Development Science Board, will bear me out in this imperative need for technicians in our country. But there are many, to be sure, who wlll differ from this way of thinking, for they know that the study of medicine is as essential to society as the food to men. They will argue th.o..t medicine is studied not alone as a modus vivendi but to be useful in society and in the healthy growth of our population. In fact, many study medicine not to engage in private prE.ctice but to make use of it in the service of the government and in the promotion and conservation of the Fillpino race. The truth ts that knowledge of medicine is essential to the individual not only for the protection of his health z.nd of his family but also to advance his social st;;..ture and culture. Weghty reasons, therefore, exist in favor of the continuation of the study of medicine. The question may be asked whether physicians who are en~ differences must guide in the development of solutiolll!I to the problems created by these labor disputes. The first of the two major inquiries in reaching tow.o.rd the solution of problems posed by labor disputes affected with the national interest is to consider the extent to which collective bargaining can serve this function. The more "effective collective bargaining ts, the Jess need there will be for extreme and regimented measures. But the bargaining process wUI not be effective in every case where the public property is deeply concerned about a work stoppage. So the second major Jlne of inquiry must be into additional needed measures where collective bargaining fails adequately to protect the public interest. Collective Bargaining Is . Fundamental, but Stagnant Collective bargaining ho.s been the fundamental national ap.proach to the resolution of economic disputes between emplayees and employer for well over a generation.I Yet the most noteworthy circumstance surrounding our governmental approach to collective bargaining today is that there has been little attempt to hnprove the process since its creation. Governmental p0Ucy-mo.king has constantly been concerned with balancing bar( Continued next page) 1. National Labor Relations Act, 49 Stat. 449 (1935), as amended, 29 U.S.C. Sections 151-167 (1958); Railway Labor Act 44 Stat. 577 (1926), as amended, 45 U.S.C. Sections )51-163 (1958). gaged .;;.s college professors or doctors in private enterprises are entitled to organize themselves within the meaning of the Magna Carta of Labor which is Republic Act 875. The answer is in the affirmative. It is now settled that doctors, lawyer&, teachers, and other professional people can organize themselves into unions if they want to promote their rights and defend their economic security. Medical societies uid bar associations are sometimes referred to by laboring peoples as "doctors' unions" and "lawyers' union." It must, however, be born in mind that such right is quallfied by the circumstance that the employing institution must be one operated for profit. If the employer is a non-profit organization it does not come withiri the purvie-w of the Act. This means that while professors can organize themselves into a union they cannot however make use of a strike as a weapon to enforce their demands nor can they file an unfair labor practice charge against their employer. As an example we may cite physicians who are employed in the Red Cross Organization or in hospitals, public or private, that are organized not for profit but for humanitarian reasons. As members of a respectable profession in our society, your activities should not be confined to the narrow circle of your calling. You must also do your part in promoting the welfare of your community. You must take part in the crusade to which good citizens are now dedicated for the moral uplift of our people. This is especially so <>.t this time when the moral of our youth is at its lowest ebb. In doing so yqu will not only contribute to the healthy growth of our youth but to the moral and spiritual regeneration of our people. December 31, 1963 LAWYERS JOURNAL Page 359 gaining strength,2 llmlting union attempts to spread labor dis. putes through secondary pressures• and increasing protection of the rights of individual union members.4 But there has been no similar continuing drive to !infuse bargaining with new life. The bargaining process has largely remained. stagnant in an othe1wise dynamic area of law and policy. Much can and should now be done to achieve the potential of colJecth•e bargaining. There have been some encourc.glng developments of a voluntary nature emanating from companies and unions. One of these is the use of third parties, brought tn by employers and unions themselves, lo participate Jn the bargaining. This pdv"lte third party .::an sit in on the bargaining sessions to serve as an independent, objeelive mediator.5 He may well be more effective than a government mediator since he has been voluntarily chosen by the parties and can be expected to know better thetr interests and situation. He Can feel freer to suggest settlement terms. The use of this third-party device has also o.ppeared in accomplishing impartial studies and analyses of the information underlying the bargain which ·must be made.6 Ca.lied well in advance of any contract termination, such a peISOn can investigate the economic and other conditions surrounding the bargain and can make recommendations on <>. sensible pattern of settlement. · There is progress in another facet of Voluntary settlements between management and labor. This is manifested in contract terms designed to ease later contract renewo.ls.7 Cost-of-living wage provisions and automatic productivity increases are examples of these bargainjng-easing improvements. The use of a joint committee to make a continuing study of difficult dead. locked issues is a newer, effective development. This wis the means of handling the work-rules dispute in settling the pro. Jonged steel strike of 1959.B It has also just been used in disposing of the workcrew issue in the longshoremen's labor dis~ pute of 1962.9 The committee device achieved a most successful fruition °in ~~t~l~:::.2.ce~~w~~n th1:e19~a~~~1e!!:~ ~:7:e~~yba~~in~~: dispute, a tripartite committee was given a broo.d c~arge to 2. E.g. in the Labor.Management Relations Act, 1947, outlawing th.; closed shop, Section S(a) {3), 61 Stat. 40, 29 U.S.C. 5ect1on 158(a) (3) (1958); defining and limiting the obligation to bargain, Section 8(d), 61 Stat. 142, 29 U.S.C. Section 158fd) (1958); restricting the nature of bargaining units, Section 9(b), 61 State. 143, 29 U.S.C. Section 159(b) {1958); permittin)! states to outlaw the union shop, Section 14(b), 61 Stat. 151, 29 U.S.C. Section 164(b) (1958). In the Labor-Man.agcment Reporting and Dis_ closure Act of 1959, r~gulating organiz<:..tional picketing and pub· llcity, Section 8(b) (7), 73 Stat. 844, 29 U.S.C. Section 158(b) (7) 5upp. III, (1962J. 3. E.g., Labor-Management Relations Act, 1947. Section 8(b) ("4), 61 Stat. 141, 29 U.S.C. Section 158 (b) (4) (1958). 4. Labor-Management Reportin.e and Disdo~ure Act of 1959, Titles I-V, 72 Stat. 522, 29 U.S.C. Sections 411-15, 431-40, 461-66, 481-83, 501-04, 521-31 (Supp. III, 1962). 5. Hildebrond, The Use of Neutrals in Collective Bargaining in ARBITRATION AND PUBLIC POLICY (Proceedin~s of the Fourteenth Annual Meeting, Natfom:.I Academy of Arbittatol"'S) 135 (1961); Report of the President's Advisory Committee on Labor.Management Policv, Free and Collective Bar1ialning ond Jn_ dustrial Peace, Sec. Ill C, 50 LAB. REL. REP. 25, 42 (1962), (LAB. REL. REP. is the Labor Relations Repo1ter, published by the Bureau of National Affairs.) 6. Chamberlain, Neutral Consultants in Collective Barp:aining, in COLLECI'lVE BARGAINING AND THE ARBITRATOR'S ROLE (Proceedings of the Fifteenth Annual Meeting, National Academ_y of Arbitrators) 83 (1962); Report, supra note 5, Sec. 111 B, at 42. 7. Address of Secretary of Labor Willard Wirtz, National Academy of Arbitrators, 52 LAB. REJ.. REP. 133, 165 (1963). 8. Steel Memorandwn of Agreement, Section' 6, 45 LAB. REL. REP. 2frl, 208 (1960). 9. 52 LAB. REL. REP. 81 (1963). recommend a plan for equitable sharing ~ economic progress by employees, the company and the public.ID The plan was made public in December, 1962. Its goal .is to eliminate dead. une bargaining over economic issues. In genero.l, wage increases are keyed to a sharing of all increased productivity ind all savings in the use of materials. Further, it contains a guarantee to emploYees against loss of income resulting from automation.u These examples are tangible steps taken by the parties to collective bargaining in attempting creatively to improve it. Such succe!lsful efforts undoubtedly lead others to experiment also. Yet In a society which is properly competitive, it canuot be expected that private innova.tions will of themseh•es develop the full patent~aJ of colllecttve bargaining. The · government must step in to 'give additional stimulus.12 Government Should Provide Better Mediation The most obvious means for governmental aid io improve collective bargaining is bettering mediation. A larger staff of professional mediators is needed in the Federal Mediation and Conciliation Servlce.u lnfu~ion of governmental mediation be· fore a crisis in bargaining is r.eached is another indicated advance. Early mediation proved most effective in the steel settlement of 1962. There Jhe government insisted that bargaining begin four and one-half months before contract deadlines. When the parties broke off negotiations during bargaining, a proper bargaining technique to test strength and determination, the · government mediators dogged the parties back to the barg3ining table.14 The Depo.rtment of Labor ls now undertaking a broader role in providing economic data useful to successful collective bargaining. Cost-of-Uving statistics and productivity-increase analyses have been a valuable contribution for many years.ts Further steps are now being taken ·to make· the Depo.rt:ment of Labor the source of detailed ·iand intensive economic studies needed for enlightened bargaining,16 More specifically, the De.. partment has Just begun to hold itself open to make studies on precise issues for parties who have been stymied in their bargaining. A study ls to be made of workcrew composition, as one .aspect of !he settlement of the longshoresmen's strike of 1962.11 This development of a governmental role to supply data for collective bargaining is a commendable major advance.18 A governmental activity of a different nature should also be mentioned. This is the labor-management "summit" confer~ ence.tt Its current form Is the President's Advisory Committee mon!.~·d~~~f li~e~:i;f.0~~~i~n °'~~-4~n~'k. s~L.0'itEP: j:1eg (1959). 11. The text of the agreement w111 be found in 52 LAB. REL. REP. 35 (1963.) 12. Cox, LAW AND THE NATIONAL LABOR POLICY 48 (1960). 13. Report, supra note 5, Sec. Ill D, at 43. 14. Under urging by the government the parties began bargaining on February 14, 1962. 49 LAB. REL. REP. 359 (1962). Negotiations were broken off indefinitely by the parties on March 2, but were resumed on March 14 in response to a telegram from the President, id. at 460. Settlement was re.:ched on March l9, id. at 523. 15. On the role of the Bureau of Labor Statistics in suppiy. ing pertinent economic information, see Cla.izue, the Economic Chmate of Collective Bargaining in NEW YORK UNIVERSITY THIRTEENTH ANNUAL CONFERENCE ON LABOR 41 (1960) 16. Wirtz, supra note 7. at 166, Secretary Wirtz suggested the possibility of supplyinJ? information and aid through an exten.. sion service, as in the Department of Agriculture. · 17. See column one, supra. 18. The need for more complete dato. and for a frank interchange between the parties and the goveinment was stated by the President's Advisory Committee on Labor-Management Policy. 1:.K!:~;.t·E~~~:e~~:es~rl~~~. U1L1.B~tL~." 221, ~34 (1960). Page 360 LAWYHRS JOURNAL DeCerriber jI, 1963 on Labor-Managament PolJcy.20 In a report dated May, 1962, this committee referred· to collective barga,lning a.s "an es.. sential element of ·economic democracy."21 S~e of the devices stated above were recommended by the committee. But. by its nature It cannot be relied upon to carry much of the burden of strengthening collective bargaining. "Guideposts" Issued for Wage Increases . The meo.ns so far described for improving collective barga.inlng are encouraging developments. By themselves, however, they cannot eradicate all difficulties in the settlement of those labor disputes which can be solved by negotiation. Settlements by collective bargaining may raise questions rather than resolve them. The government may feel it necessary to give ;;.ttentlon to the inflationary pressures arising from wage bargains 1n basic industries. In his economic report to the Congress on January 22. -1962,22 President Kennedy released and approved the recommendation of his Council of Economic Advisers for "guideposts" in wage price decisions.2a In brief, the guide invoked was that wage increases should be Umlted to growth, in prbduct.. ivity to avoid the inflationary Pressures of higher wages. While there have been general governmental sts.tements 1n the past concerning the inflationary pressures of wage settlements,H outside of wartime this is the first Instance of the government's embarking on a deftntte program. · The over-o.11 productivity increase since the guideposts were stated has almost exactly equalled the percentage increase in wage settlements during the same period.26 There ts some doubt, however, whether the guideposts h&\•e been successful or whether admitted signs of stagn;;.tion in the economy caused wage increases to be limited.zs In spite of some opposition to the guidepost concept,21 it must be accepted as a useful experiment. It ts unlikely, though, that something as noncompulsive as the guideposts could be effective in a time of serious Inflationary pressures. Sollcltor General Suggests Governmental Representation A step beyond was offered by the Solicitor General of the United States, Archibold Cox, in June, 1962.2e He proposed developing a means to introduce governmental representation at an early stage in critical wage bargaining and to carry it on throughout negotiations. He made clear that he did not suggest a governmental veto to the economic bargains made. Rather, he asked only that the govemment be given "an opportunity to be heard as spokesman of the wider public interest while the decision is made".29 A reciprocal obligation upon the government to be receptive to the pressing interests of the pz.r. ties was recognized. Coming on the heels of the steel settlement of 1902 with the price increase later withdrawn under govemment;;.l pressure,ao this plea by Mr. Cox for formalized procedures ls pet·· 20. The committee was set up under Executive Order No. 1091~1~6R~~~rl~~~·p::2~~t~~~)introduction, at 25 fr. ~e '1.:~~P!~~· s!~~o~a~}Y th!i~~Or~a~ra~e 2E'oi!!~~?"of Economic Advisors is printed ln 49 LAB. REL. REP. 306 (1961). 24. Ross, Wage RestrUnts in Peacetime. Address before the Western Economic Association, 51 LAB. REL. REP 50 (1962). 25 The figure "runs three per cent or a little Over. 51 LAB. REL REP. 173, 277 (1962). 26. Ross, supra note 24, at 52. 27. E.g., George Meany, Presideql;, AFL-CIO, responding to an address by $ecretary of Labor Goldberg, 49 LAB. REL REP. 436, 437 (1962); Walter Reuther, President, United Automobile Workers, SO LAB. REL. REP. 49 (1962), J. Ward Kenner, President, BF. Goodrich, 50 1=-A.B. REL. REP. 119 (1962); John DavR_nlL.r1R.:tt.s'6.:~6~ ~%j~ing Editor, Fortune Magazine, 52 LAB. 28. Cox, Address at Harvard Law School, Wall Street Journal, June 14, 1962, page 3, column 1. 29. Ibid. 30. 49 LAB REL. REP. 605, 606 (1962). suasive. The abortive steel price increase exposed the disacL vantage. of the government's remaining out of the economic bargain unW .ita.,completion, If the b~gain .is' one where the. publlc inte!est plainly needs protection. Professor Arthur Ross Ms said that "any influential national wage policy must be im.preg. nated Into the collective bargaining apparatus".Bt And he asserted that "there must be a potent, competent, consultative mechanism cap;;.ble of producing an authoritative consensus•oaa to make wage restraints effective. The tmplicatlons of thC$e suggestions admittedly carry overtones of danger to the co11ective· bargaining process. Insofar as the government issues guideposts or attempts to indlcate to p~rticular parties what it considers to be an acceptable econo.. mic settlement, governmental planning is intruded into bargains. Yet a realtstic appra"isal of the intricate balance pf the market control mechanisms in our economj" shows that public needs are entitled to protection. What ts quite certain is th;;.t 1n the past there has been a lack of communication between the parties to labor disputes on the one hand and the government on the other, untll that moment of highest pressure when the critical strlke is about to occur. Labor Department Should Develop lndustl'J Sectl~ Moving beyond present developments, the LG.bor Department should create administrative sections for the major Indus. tries, which would specialize 1n the labor problems of those industries. These sections could hold useful conferences from time to time with industry and union leaders. They could also concentrate research on the problems of their industries so that fair exchange between the government and the industries could be effectuated in informal, noncompulsory fashion. But the govenunent must move carefully 1n developing these devices, limiting their applicability to the minimum governmental intrusion which wUI reasonably protect national economic poJ1cy. Secretary of Labor Willard Wirtz has stated dramatically that at this time we are seeing "the last clear chance" of coliective bargaining.as . The pressures against the efficacy of the bargaiiilng device are of a different nature and are more threatening than they have ever been before. There are several reasons why this is so. Probably the most salient reason is the development of automation. The underlying concern of the workers in virtually every critical labor dispute since the steel dispute of 1959 has been the fear of being displaced by machines. From the workers' point of view, impending automation makes their strike far more desperate than a strike which is simply the manifestation of their desire for a wage increase.u The development of strike benefits for employees and strike insurance for employers, greater interdependence within the economy, concentration of bargaining units, bf.rgained settlements by wage leaders which affect the entire economy, and the greater dependence by society on the production of goods deemed necessary, all lead to an increased abiltty of employers and unions to hold out longer in the strike process and a decreased &.b1llty of the public to stand the work stoppage.B6 Involved also are the bro;;.dest aspects of international fiscal poltcy. As our nation leads the Free World in the cold war and faces the intense competition of the Common Market, the complexity of the economic structW'e and the role that the collective bargaining process is designed to play in that structure become matters of unayoldable moment. 31. Ross, supra note 24, at 54. 32. Id., at 53 33. Wirtz, supra note 7, at 163. ANJ1i~i~~nrt%2>?1R:~:1~~n;~li~~at:~~\:,~:ir:::i·~0t.~ V(ewpolnt, Id. at 100. 35. Wirtz, supra note 7, at 162. December 31, 1963 LAWYERS JOURNAL Page 361 Some w111 assert that the burden is too great. Collective bargaining cannot bear the pressures here briefly suggested. If thfs is so, governmental planning must take over a large segment of whr.t has been relatively free economic determinism. Certainly this regrettable development should be averted at all reasonable cost. There must be a resolute willingness to strengthen collecU\·e bargaining to make it work. This cam~ot be done simply by asking labor and management not to en~age in strikes. There will h&ve to be governmental intervention to a degree. A realistic acceptance or this fact will enable evaluation of the techniques of governmental intervention which can keep it in the posture of protecting and implementing collective bargaining, rather than subverting it. The ferment which has brought about the m;;.ny nascent developments ouUined. above is a healthy sign. But much creative improvement lies aheat;l if the potential ot collective bz.rgaining is to be fulfilled. Evaluating Work Stor1£""'.ages in Critical Industries The second inquiry must be· as to work stoppages in critical industries when the public cannot stand prolonged loss of production. Herc it ts alrer.dy accepted that there must be governmental intervention,lloi although to :-:ome extent the collective bargaining process is undermined. What is needed ts a straightforward., objecth·e evaluation of the right of employers and unions to engage in critical work stoppages. A fundamental aspect of authentic collective bargo.ininS is the right lo strike. Only by the device of withholding labor can 'the ultimate relative bargaining strength of the parties be determinedJ17 While it is unfortunate in a given case that no agreement is reached and a strike occu1"S, the thre;;.t of the strike must always be present or the employees have no bargaining power. So the right to strike, the complete antithesis of totalitarian economic devices, must be preser.ved_wh~rever possible to do so. This is the first tenet and beginning propOsitton for any analysts of the problem of emergency strikes. · The second step must be a frank recognition that the right to strike in an absolute sense does not and cannot exist throughout our economy. We recognize this in government employment and forbid strikes against the govemmentJ18 During World War II we prohibited strikes and set up a system of establishing wages and working conditions through a process other than collective bargainlng.n But there are other situations not so unusual where the right to strike likewise cannot exist. Pragmatically, there is no right to strike .,,n the nation's railroads at the same time. Such strike action is not forbidden by law, but 1t simply cannot be tolerated,40 as some past experiences show.n A work stoppage for a few days might be al36. Ll:.bor Man<igcr;ncnt Relations Act, 1947, Sections 206-10, bl Stat. 155, 29 U.S.C.. Sections 176-80 (1951S) (the "national emergency'' provisions of Taft-Hartley J ; Railway Labor Act, Section 10, 44 Stat. 586 (1926), as amended, 45 U.S_C. Section 160 (1958). 37. Frey, Democracy, Free Enterprise, r..nd Collective Bargaining, in LABOR RELATIONS AND THE LAW 24, 30-31 (2d ed, Wollett and Aaron, eds , 1960). 38. Labor Managenlent Relations Act, 1947, Section 305, 61 Stat. 160, repealed b:V Act of August 9; 1955, 69 Stat. 624, 5 U.S.C. Section 118p (1958), which continues the prohibition against strikes by government employees. 39. War Labor Disputes Act of 1943, 57 Stat. 163. 40. Smith, The Effect of the Public Interest on the Right To Strike and Bf.rgam ColtecU\'ely, 27 N.C...L. REV. 204, 208 {1948). 41. The history of the many crises in threatened and actual nationwide railroad strikes is detailed in LETCHT, EXPERIENCE UNDER RAILWAY LABOR LEGISLATION, Chapters X-XIV (1955); Kaufman, Emergency Boards under the Railway Labor Act, 9 LAB. L.J. 910 (1958). The history of the most recent crisis, that concerning work rules, is told in Brotherhood of Locomotive Engineers v. Baltimore & Ohio Railroad, 372 US. 284 (1963), upholdiiig the right of the railroi:.ds to act in acCordance with tile report of the presidential commission. lowed, but the right to strike for a few days is not a tight to strike effectively. In the co;;,l and steel industries, the right to strike is directly related to the size of the stockpile. If there is a large stockpile, there is a right to strike. If there is no stockpile, then a strike simply cannot be tolerated,4t A demonstration ot this principle was given in 1959 when the steel production stoppage was permitted to continue for 116 days because of the stockpile. As soon as the stockpile was gone, the national emergency. occurred, and the Taft-Hartley injunction was invoked to force the Cmployees back to work.43 A more extreme a11d more dramatic example of the practical disappearance of the right to strike is made evident by considering what would be the effect of cutting otf electric power in any major city. Unions engaged in this and other similar critical production seem ·to realize that there ls no right to strike, and they work out some sort of soft strike technique which causes discomfort, but keeps essential services flowing. Can there be a right to strike in any real sense today in the aerospace industry! Surely not. In the cold war and the race for space, the strike which runs its course cannot be permitted." Intervention Might Furnish Bargaining Impetus The next proposition in a step-by-step analysis is that collective bargaining is not fully available in all of its connotations where there is no complete right to strike. Bargaining can still be carried on, but the bargaining cannot be based on the threat of strike. Rather it must be based upon the threat of governmental intervention to resolve the dispute. This threat constitutes an effective pressure upon the bargf.ining parties in·-.mMly tnstanars.:-· Yet these,~1:11;ft!';siinplY- are of neither the same nature nor magnitude as the ultimate threat of strike, and the bargaining is less sat'isfactory for this reason. In spite of the extent to which the efficacy ot collective bargaining is under.mined, It Is necessary that governmental intervention be accepted in these disputes. Without something lo take the place of the right to strike, the union would be forced into the position of trying to bargain without bargaining strength. Insistence upon bargaining under . these conditions would surely lead to a complete loss of faith in bargaining and a demand by workers for drE.Stic governmental controls.41i 42. Wfiliams, The Steel Seizure: A Legal Analysis of a Politi~l Controversy, 2 J. PUB. L 29, 35 1(953). curri;;g ~~~n~~toy J~si~1:s di~~~fu1:te~1=~~d tfart: ~iniJ~d Steelworkers of America v, United States, 361 U.S 39.1 44 (1959). See ali:o, Seidman. National Emergency Slrike Legislation, in SYMPOSIUM ON LABOR RELATIONS LAW 474, 480-84 (SWVENKO ed. 1961). 44. Brief work stoppc:.ges at missile sites have been much in the news the last two years On May 26, 1961, the President created the Missile Sites Labor Commission, Exec. Order No. 10946, 26 Fed. Reg. 4629 ( 1961). Senator McClellan has intro.. duced a bill to outlaw strikes al missile sites and other defense factlities. S. 288, 88th Cong., Jst Sess. (1963). He has mtro.. ~rL~b~i;ig:Jd~~~~ i~=~~idr t~~tsith~· a~nmt~~:!ii~!6~o~i~re~~ ~~~il~bac~i;!~~~~i~~1~~~J3. i\tr\~. s~~E~gRiP~0~~~n(~~611~ ~~~ a thorough study, see Van de Water, Applications of Labor Law To Construction and Equipping of United States Missile Bases, 12 LAB. L.J. 1003 (1%1 ). 45. After the National Aeronautics and Space Admtnistralion obtained an injunction against picketing of a missile site, President Neil Haggerty of the AFLC10 Building and Construction Trades Department said: "Labor must have a place to f(o witlt its problems if It is to t.bide by the no-strike pledge." 51 LAB. REL. REP. 209 (1962). ' Page 36l LAWYERS JOURNAL December 31, 1963 The question, then, is as to the nature of the government.a.I. iilterventlon. Here there 3hould be no opposition to the basic proposition that governmental intrusion should be kept to the minimum needed to prevent strikes which cannot be tolerated. In evaluating the various techniques of governmental intervention, the tendency must be resisted to fasten upon a supposed panacea. The current demand for placing unions under the antitrust laws is such a shibboleth. Much of the e&rller monopolistic aspects of union activity, such as the secondary boycott, have been specifically eliminated by statute.46 The push for placing unions under the antitrust laws appears to result from the desire to limit each labor union to existence in only one company, thus eliminating industry-wide bargaining.H This would unquestion<.bly mean that there would be fewer critical industry-wide work stoppages, because all production in a given cominodity normally would not cease. The great weakness of this approach has been revealed in the recent New York newspapers strike. Only tot.ir of the NC\v York newspapers 'were struck. The other five shut down voluntarUy.48 In industries where there are only a few producers, one cannot afford to be shut down while his competitors r.re operating. So the producers join together to avoid partial showdown. This has been the great spur to the development of industry-wide bargaining.a It has been proposed that the transportation industry. be placed under the antitrust laws to avoid industry.wide transportation strikes.60 But the kind of pressures which are involved in round-robin strikes,' with each competitor being struck sepa· n;.tely and at a different time, have led the American Trucking Association to take a firm stand in favor of industry-wide bargaining.'1 If uolons are to be fragmented, the constant economic turmoil ca.used by employer-by-employer work stoppages,52 together with the lessening of union bargaining strength which might put it significantly out of balance with employer strength, 68 would -almost surely lead to polltical remedies. This ls the past history of unbalanced collective bargaining, and m any democratic country 1t can be expected that the go\'• emment will play the role of equalizing undue dispt..ritles in bargaining power. Another sweeping proposal is the so..called nonstoppage strike, which would set up monetary penalties to create bargaining pressure upon both employers and unions.&" The com46. Levitan, An Appraisal of the Antitrust Approach, 333 ANNALS 108 (1961); Sovern, Address before National Association of Str,te Labor Relations Agencies, 51 Lab. Rel. Rep. 68, 80 (1962). 47. Ladd Plumley, President of the United States Chamber of Commerce, has strone.y urged pulling unions under the antl~rusr!~~b~r ~i ~:· :~sid~:i~· ~~vls":d 1~~~mftt!~pl~n!"· ~g~~~ Management Policy, expre"ised a similar views in the May, 1962, report of that body. See Report, supra note 5, at 45. 3_ 48. Wall Street Journal. December 10, 1962, page 2, column 49! Cox, op. cit. suprQ. note 12, at 51. 50. S. 2573, 87th Con~ .• 1st Sess. (1961), sponsored by Sena.. tors McClellan. Byrd (Virginia), Thurmond, Curtis, Case (South Dakota) and Bennett 51. Report, lndusirial Relations Committee, American Trucking Association, 52 LAB. REL. REP. 91 (1963). 52 Kramer, supnl note 19, at 232: McPherson, Cooperation Among Auto Managements in Collective Bargaining, id. at 607, 60.8. Pierson, Coopen:.tion among Managements in Collective Bargain!ng, id. at 621. See also McDowell, Labor and Antitrust: Collective Bargaining or Restraint of Trade? 20 FED. B.J. 18 (1960) 53. Cox, op cit. supra note 12, at 52. A w5:Y ~~~e~¥ H~~~5l~~eRiVi~U ~~94~)~G~b\e,1nti~st:;:~~~ stoppage Strike, 2 LA~. L.J. 105 <1951). But cf. Marshall & Mar_ chall, N'onstoppage.-Strikes anct"NatiOnal Labor Polley - A Crl:. tique, 7 LAB. LJ. 299 (1956). plex problem of creating and defining the penalties makes its ut11ity most doubtful. Pressures on the parties should be related to the bargaining strength c.f the parties. In the nonstoppage strike they are not, but are simply a leglsJative fiat appllcable to all disputes. · Taft..Jlartley Postpones, But Doesn't .Resolve The present Taft...Hartley procedures have a history of sue.. cesses and failures.ss The ·most obvious weakness of the procedures is that they have no ierminal point. While they postpone a strike, they have no way of ultimately resolving one. If the proposition is accepted that strikes simply cannot be tolerated in certain phases of our national life, then having as our only procedure one which cannot tennlnate such a dispute is a serious weakness. In addition, any procedure which takes away the right to strike even tempor;;.rily, substituting nothing for it, is bound to alter sharply the relative bargaining strength of the parties, Failure of the Taft-Hartley provis1ons to authorize the fact-finding body to make recomendations Is an example of the operation of the law with an uneven hand. Senator Taft reallzed this weakness and later recorpmended that the boa.rd be empowered to suggest settlement tenns.66 There are several unwieldly facts to the Taft-Hartley pro, \.'isions. The last-offer vote has not been successful.&7 The requirement that the President must go to court to get an injunc .. lion seems unjustifiably indirect.68 Of far greater concern is the fact that the statute leaves the government largely impotent until the emergency occurs. Only then ls the fact-finding board created, and it must hurry to report at once before the strike can be postponed by injunction. All of these matters establish an undue rigidity in the Taft-Hartley provisions. Critical labor disputes differ. Each has its own stumbling. blocks to settlement. The impact upon the public differs. Sometimes the public can tolerate a work stoppage for quite a while, even though in a critical industry. At other times a strike for one minute, as In the case of electric power, could be di&.strous. These considerations indicate that there should be a choice of prooedures for use in resolving critical work stoopages.r.9 There might well be concern that the choke-Of-procedures approach le<.vcs too much to the discretion of the President. But power must be lodged somewhere, and it cannot be lodged in a more responsible place than in the executive. To have these procedures available is not to give the President a bludgeon consisting of threats of ~any different kinds of procedures. The visio~~. Pf~rs£ME1I'GfN~ai~SP'lfT~~e ..fN~0N~TiONArn~bL~CY J29 (Bernstein; Enarson anc.I Fleming, eds. 1955); Taylor, The Adequ~cy of Taft-Hartley in Public Emergency Disputes, 333 ANNALS 76 (1961). • ~: ~~~<~~a479 supra note 43, <.t 478. 58. The President's Advisory Committee on Labor-Management Folicy proposed that the injunction be eliminated and the President be empowered lo direct the continuation of operations subject to ju~icial review. Report, supra note 5, Sec. IV, at 44_ 59. The hlerature on the choice of procedures approach is voluminous. Of parliculr.r value are Cox. op. cit supra note 12, ~in~~e!~;tz,Drs~~t~~hi~e E~~RGEWC~., t"fSP~~Ws 10 ~DtiNA~ TIONAL POLICY 149 (Bernstein, Ensrson and Fleming. eds. r.~~>;6f,l~~infiJD).ergency Strikes and National Policy, 11 LAB. The Schlichter Law in Massachusetts is a choice of procedures law. MASS. GEN. LAWS, Ch. !SOB (1957); Shultz, The Ma998chusetts Choice of Procedures Approach to Emergency Disputes, 10 IND. & IAB. REL. REV. 358 (1957): December 31, 1963 LA WYERS JOllRNAL • 1'81'1 363 power should be given to the President, instead, because of the need for flexibility, since the disputes differ so much tn their attributes. · ' Variety of Procedures Should Be Available The remaining issue, then, is the nature of the procedures which should be available in hand.ling critical labor disputes. Properly, the most usually recommended procedure is the development and refinem~nt of the process of fa.ct f~cllng by an independent board, coupled with the additional power of that board to suggest terms of settlement.so The theory is that there will be strong pressures upon the parties to settle in close conformity to the recomendations, if the recomendations are reasonable. Publlc opinion, reacting to a sensible proposal for settle,. could make it quite difficult for the pr.rties to refuse to accept it. One serious need is for the fact finding boards to be activa.. ted before the emergency develops. The invCstigation shOuld be made and the recomendation should be ready before the strike occurs. Earlier governmental intervention ts receiving increasing acceptance, as ls shown through its approval by the President's Labor-Management Commlttee.Gl We should experiment with the operation of fact-finding boards, and the details need not be explored here.e2 From time to time the government has used the device-of selzlng businesses to bring about the end of criti~l. strik~s,68 ,But seizure o.s the sole ~overnm.ental intervention disregards the rights of employees. It takes away the source of bargaining strength, the right to strike, and gives nothing tO take its place. Seizure should be used only as an !!nforcement device to aid in effectively carrying out other procedures, such "as fact finding with recommend~tions. Seizure was used merely as an enforcing device during World War 11.64 It ls necessary to accept the need to have available addition&.1 means for the gov'rmmental intervention more stringent than fact-finding. There are some work stoppages in which, because of the nature of the goods withdrawn from the market, the public automatically opposes those who strike, regardless of the merits of the dispute. In these situations employers would be enabled effectively to hold out against any board-recommended settlement properly favorable to workers. It follows that when necessary the government should have the power to introduce a fact-finding board's recomends..ttons as the work conditions actuaHy to be used for a temporary period.Gr> It ls true this de6o."A..rthorlz&.tion of the fact-finding board to make recommendations has been the established procedure under the Railway Labor Act. On fact finding whh recommendations generali~~ ;sewJ::~i1ffati~'!ia1ia E~~~g~~c:t J~~~t~~~'TiaLA~~P[~ f0~1. 4~ (1961) 6L Report, supra note 5, Sec. !,.V, at 43. 62. Sollcltor General Archibald Cox has proposed the setting up of Boards of Public Responsibility in major induCJtries. The function of the boards would be to organize and expedite bargaining procedures to try to head off emergency disputes. This could well take the form of early fact finding with rccOmmendations. Cox, op. cit. supra note 12, at 55. She:i"iT~~: l~~~t;:ss;~~~~~4f 8~~~19 ~~951),u~~~~~~ two valuable appendices giving the history of governmental seizure of business enterprises. Appendix I is an analysis of legislation authorizing seizure (page 615); Appendix II lists the inStances of seizure (page 619). _ On seizure generally SeE! Cox, Seizure in Emergency Disputes, in EMERGENCY DISPUTES AND NATIONAL POLICY 224 (Bernstein, Enanon and FJeminJ?, eds. 1955); Teller, Government Seizure in Laber Disputes, 60 Harv. L REV 1017 (1947). 64. War Labor Disputes Act of 1943, Section 3, ·'57 Stat. 164. 65. Cox, op. cit. supra note 12, at 56; Givens, Deallng with National Emergency Labor Disputes. 34 TEMP .. L.Q. 17 (1960); Seidman, supra riote 43, at 491. vice would tend strongly to establish the recommended settlement as the final settlement of the dispute, since the partiea woUJ.d be forced to operate under these conditions for a time. Yet where the strike cannot tolerated, some such procedure is justified. It must be stressed again that in this kind of situation collective bargaining in the usual sense cannot exist. Since lt cannot, wages working conditions must ultimately be esta.. bltshed ln another way if the parties fail to reach agreement under the threat of governmental intervention. Compulsory Arbitration May Be Justified Even the final step, so bitterly opposed both by management and labor, is justified by the analysis here set forth. The compulsory arbitration of wages and working conditions to settle a dispute in an industry in which a work stoppage would be disastrous to the national interest is a proper ·procedure to have available. We used compulsory arbitration in wartime because we could not tolerate strikes. && It needs to be an available ultimo.te weapon in those instances In which the right to strike simply cannot exist. Compulsory settlement procedures should not ever be the 011ly available procedures in a given industry, no matter how critical. Often mecho.nisms short of compulsory settlement could bring the parties to a re!!olution of the labor dispute. It must be frankly realized that the availability and use of compulsory arbitration tends seriously to weaken bargaining; the party most likely to benefit from a forced settlenient may negotiate OnJy perfunctorllY 67 But the premise here stated is that at least sometimes there ~an not be a right to strike. When this ts so, bargatn1ng is not available as the ultimate solution to the dispute, and the fact that compulsory settlement seriously weakens the bargaining does not outweigh the necessity tho.t a means of settlement without stoppage must be ready for use, although only in the most extreme situations.es If the right to strike ts gone, something else must take its place. The most common objection stated both to compulsory arbliration and to fact finding with recommendations is that they put the government in the business of fixing wages, leading inevitably to a mo.naged economy.GI We already have enough ex.. (Continued next page) ~Labor Disputes Act of 1943, Section 7, 57 Stat 166; ~:~~bi~~r!~t~rrl3IC~.1t~ i'E~~n3~~ Y1~44 ~ab On ~:rgis~~:; of the development and use of the compulsory arbitration device see Williams, Compulsory Settlement of Contract Negotlatlon Lab67. D4h~u~ie 2~~:i~~e \:~~~5~~i-s~~-~~i~~9:>Commended the repeal of that state's publlc utility arbitration law in favor :l ~01f~~i~~ b~fg~i~i~u.re~~~~~~~h8 f1ND~ : IT3~sR~l~~E~ 408, 415; 423 (1955). ~eidman, supra note 43, at 488; Secretary of Labor Wirtz, q.ddress before National Academy of Arbitrators, 52 LAB. REL REP. 133, 164 (163). 68-. Impartial obsen.oers tend to accept, albeit reluctantly, the principle of compulsory arbitration in the ultimo.te situation where a work stoppaRe must be absolutely forbidden. The Committee on Labor Arbitration Law, Section of Labor Relation Law, American Bar Association, in,1960 took a position opposed to compulsory arbitration, yet recognized. that "national interest may be so imperiled as to make some form of comoulslon essential". PROCEEDINGS, SECTION OF LABOR RELATIONS LAW, 166, 167 (1960). To 1he same effect are Feinsinger, Comment on National Emergency Strike Legislation in SYMPOSIUM ON LABOR RELATIONS LAW 493, 495 (Slovenko ed 1961); Seidman, Na~~~8io,E~)1°1i~n~he ~ric~gi~~~:r~e its~~ia~~~~ ~ffi~~hys%~ ors comoulsorv arbitration, 52 LAB. REL. REP. 104 (1963). tion,6~2 Ftzv riz:n ~8NT~tnfT.11ef~~':o:am:1~\n! c:!1!::~~~~ ~~~~~~;It ~!ur;~f~n r~~: .. ;·~0A1~~~~~ :ia~:!~~~a~~ ~;Pi%iJ: to recommendations as part of fact finding,.seeing the procedure as an undue governmental intrusion, w~s made by Henry Ford II as· a member of the President's Advisory Committee on La~~f;~~a!::°~J :;1~~te ~fit~~eni~pa~ Jo~e 5, Sec. ~ (foo~ Page 364 . _::.: LAWYERS JOURNAL December 31, 196.3 SUPREME COURT DECISIONS Ludo Libames, petitioner vs. The Hon. Executive Secretary, et al., respondents, G.R. No. 1.-21505, Oct. 24, 1963, Concepcloll, J.: 1. PUBLIC OFFICERS; REMOVAL OR SUSPENSION; CHIEF OF POLICE OF ZAMBOANGA CITY; CANNOT BE REMOVED OR SUSPEND~D EXCEPT FOR CAUSE.-lt is conceded that the Chief of Police of Zamboanga City ls a member of our clvU service system <Section 5, Republic Act No. 2260). Hence, he cannot be "removed or suspended except .for cause as provided by law and after due process" (Sec. 33, Republic Act No. 2260). 2. i:o.; ID.; CASE COMPARED WITH CASES OF LACSON V3. ROMERO AND DE LOS SANTOS VS. MALLARE.-It can· not be denied that the attempt to terminate the services of pltintiff herein, as de jure ·holder of the office of Chi et of Police of Zamboanga City, entailed his removal therefrom. even more than the attempt to transfer the provincial fiscal of Negros Oriental and the City Engineer of Baguio City without their consent was held in Lacson Ys. Romero (47 Oft. Gaz. 17781 and De las Santos vs. Mallare <87 Phil. 289J to constitute Illegal removal from their respective of. flees. 3. ID.; ID. ; PO\VER OF PRESIDENT TO REMOVE CHIEF OF POLICE OF ZAMBOANGA CITY AT PLEA.SURE UNDER Sl':C. 34, COMMONWEALTH ACT 39 ELIMINATED BY SEC. 5, REP. ACT 2259.-Detendants argue that the pro· vision of Section 5 of Republic Act No. 2259 ts inapplicSETTLEMENT . . . (Continued from page 364) perlence to show that this is not necessarily so. We have had a number of past instances of fact finding with recommenda. tions fanning the basis of settlement,10 There is a clear distlnction to be made. The wage settlement proposed with regularlty by a government agency is ~ far greater intrusion by the government than is the recommendation of an ad hoc factfindmg ~(d or_ board of arbitration which has been chosen to bring about settlement of one particular dispute. Insofar as the independent board c~n approximate the settlement that the parties themselves would hQve reached if the strike had been allowed to run its course, the settlement has no more effect upon the economy than would the settlement of the parties themselves. Of cOursc, just what the settlement of the parties would have been can never be known exactly. But there is enough experience with collective bargaining settlements and voluntary arbitro.tions of wage di~putes to know that, given the facts, the economic pattern .which should be followed can be ascertained. n Collective Bargaining b Absolute Requisite The key to the resoluticn of the emergency dispute problem is therefore revealed. 1he matter of pressure in settlements ~note 41, supra for citations to the fact-finding-withrecommendations experience ~inder the R~llway Labor Act. In the 1949 steel pension dispuh:, President Truman bypassed the Taft-Hartley provisions and appointed a fact-finding board empowered to recommend. The dispute was settled in close COl!lpliance with the recommendations. The- Board report is printed in 13 L.A. (BNA) 46 (1949). A recent example of the fact-finding board empowered to recommend ter.riis is the Missile Sites Labor Commission, see note 44, supra. 71. There is extensive literature on wage patterns. E.g., BERNSTEIN, ARBITRATION OF WAGES (1954); NEW CONCEPTS IN WAGE DETERMINATION (Taylor and Pierson, eds 1957). able to the case at bar because plaintiff herein has not been removed from office, his tenn of office having merely expired when the President terminated his services. Suf· fice it to say, that this attempt to terminate plaintiff's services was predicated upt>n said.Section 34 of Conunonwealtil · Act No. 39, pursuant to which the Executive may "remove at pleasure" the Chief of Police of Zamboanga City, and that this is the reason why section 5 of Republic Act Nl>. 2289 speaks, also, of removal to indicate that it seeks to withdraw or eliminate precisely such power to "remove at pleasure" under Commonwealth Act No. 39, among other pertinent legislations. 4. ID.; JD.; STATUTORY CONSTRUCTION; REPEAL; WHEN MAY A SPECIAL LAW BE REPEALED OR AMENDED BY SUBSEQUENT GENERAL LAW.-The question whether or not a special law has been repealed or amended by one er more subsequent general 18.ws is dependent mainly upon the intent of Congress in enacting the latter. The discussions on the floor at Congress show beyond doubt that its members Intended to amend or repeal all provisions of speciaJ laws inconsistent with the provisions of Republic Act No. 2259, except those which are expressly excluded from the operation thereof. In fact, the explanatory note to Senate Bill No. 2, which, upon approval; became RepUblic Act No. 2259, specifically mentions Zamboanga City, among others that had been considered by the authors of (Continued next page) by governmental intervention through emergency-dispute processes will oat disrupt the role of collective bargaining so long as the settlements brought about follow collective bargaining patterns rather than establish them. The m£intalning and strengthening or effective collective bargaining then becomes the absolute requls1tc to the keeping of emergency procedures in narrow bounds. If the basic labor-cost decisions in the American economy are made by collective bargaining, we have little to fear from the occasional emergency settlement dictated by ad hoc governmental intervention. The dictated settlements can follow the pattern established by bz.rgaining. So it is that the newly awakened emphasis on improving collective bargaining is as significant a part of the solution to the emergency strike problem as are the techniques for dealing with such strikes Governmental intervention in emergency work stoppages need ·not bring ab()ut government2..l management of the economic bargains in our society 1f collective bargaining is strengthened to maintain its proper role in making these economic decisions. We must endeavor to reach this balanced approach. Realistically speaking, we cannot continue to hold o. false belief that the right to strike is unlimited. We cannot insist that all bargains must be made through the collective bargaining process. We can and must make every effort to hone the keen edge of collective bargaining so that it is an effective tool in all but the \'Cry ht.rde;;t or cases. But we must be courageous enough to handle the hardest cases another way. The alternative is facing the resolution of each crtsis &.fter the crisis occurs. Drastic measures which will destroy the process of collective bargaining seem the inevitable outgrowth o( such a passive approach when the spectrum of the kinds of cri. si~ which cr.n arise is viewed. Advance preparation for emergencies by creating the structures to meet them is needed to preserve our economic freedom. Freedom does not flourish in chaos, but in enlightened order. Dec'eniber 31, 1963 LA WYERS JOURNAL; Page 365