Waiting in the Wings: Taft-Hartley

Waiting in the Wings: Taft-Hartley

Striking port clerical workers had barely raised their picket signs at Los Angeles-Long Beach this month when shippers began clamoring for President Obama to use the Taft-Hartley Act to end the walkout.

With the International Longshoremen’s Association’s contract moving toward a Dec. 29 expiration, similar rumblings are being heard using Taft-Hartley to squelch any work stoppage at East and Gulf Coast ports.

Back-to-work orders under Taft-Hartley are a powerful but seldom-used lever in labor disputes. The law empowers the president to seek an injunction to halt a strike or lockout that affects a substantial part of an industry and that imperils national health or safety.

Many in the shipping industry were unfamiliar with Taft-Hartley until the George W. Bush administration used it to end a lockout of the International Longshore and Warehouse Union members that idled West Coast ports for 10 days in 2002.

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The act empowers the president to seek a court injunction that triggers a back-to-work order under an 80-day cooling-off period. During that time, federal mediators seek a settlement, and a presidential fact-finding board compiles a report that includes each party’s last offer.

If the dispute remains unresolved, the fact-finding report is made public and workers vote on the employers’ last offer. Usually the disputes are settled during the cooling-off period, but in a few cases, strikes have flared up again after 80 days.

A different statute, the Railway Labor Act of 1926, covers labor disputes involving railroads and airlines. Unlike Taft-Hartley, the railway act’s fact-finding panel offers recommendations for ending the dispute.

The Taft-Hartley Act dates to 1947, when it was enacted over President Truman’s veto during a wave of post-World War II labor unrest. The law was a counterbalance to the pro-union Wagner Act of 1935, which gave legal sanction to unions’ collective bargaining.

Taft-Hartley is a broad statute that also prohibits secondary boycotts and sympathy strikes, and allows states to enact “right-to-work” laws prohibiting contracts that require workers to join or pay dues to the union that represents them in collective bargaining.

Presidents have sought back-to-work injunctions 32 times, mostly in the 1950s and 1960s, when one-third of the U.S. private sector was unionized and strikes were common. Seven of the injunctions involved ILA strikes in 1953, 1956, 1959, 1961, 1964, 1968 and 1971. Injunctions targeted the ILWU in 1948, 1971 and 2002.

The ILWU’s 2002 lockout was the first time a president had requested a Taft-Hartley injunction since 1978, when President Carter unsuccessfully sought one to end a coal miners’ strike during the energy crisis. A court ruled the miners’ strike didn’t constitute a national emergency. The only other denial of an injunction request came in 1971, when a judge refused to grant one to halt a strike by 200 ILA members at a Chicago grain elevator.

Because Taft-Hartley injunctions limit the right to strike, unions generally oppose them as government meddling in negotiations. Sometimes, however, union officials privately welcome them as a way to extricate themselves from a difficult bargaining position, said Charles B. Craver, labor law professor at George Washington University.

“It can give them a face-saving way out of a corner,” he said. “Even though the fact-finding report doesn’t offer recommendations, often the report supports the union’s or employer’s claim as to which is more reasonable, and that can have significant effects when the report is made public.”

Although the 80-day cooling-off period doesn’t necessarily end the dispute, the passage of time can cool passions and encourage a settlement, Craver said. “Sometimes it takes time for people to lower their sights,” he said. “They’ve already been negotiating for a long time, and fatigue sets in.”

Court decisions, including several involving the ILA, have broadened Taft-Hartley’s “national health or safety” justification for injunctions to include economic issues.

In requesting the 2002 injunction to force the ILWU back to work, government lawyers also cited national security. They noted that although longshore unions traditionally have exempted military cargo from strikes, many military shipments now move on commercial container ships that would be idled by a work stoppage.

Presidential decisions on whether to seek Taft-Hartley injunctions inevitably are driven by political as well as economic considerations, Craver said.

If the ILA calls a Maine-to-Texas strike, the threat of economic disruption could persuade the White House to act quickly, Craver said. “With the economy in the state it is in, the pressure will be on the president to do something,” he said. “A longshore strike has a huge impact. Normally with a longshore dispute, the courts grant the injunction when one is requested.” 

Contact Joseph Bonney at jbonney@joc.com, and follow him on Twitter at @JosephBonney.