A1069

Public Rights in Labor Disputes

EXTENSION OF REMARKS

OF

HON. CLIFFORD P. CASE

OF NEW JERSEY

IN THE HOUSE OF REPRESENTATIVES Thursday, March 13, 1947

Mr. CASE of New Jersey. Mr. Speaker, under leave to extend my remarks, I include a statement which I submitted on March 10, 1947, to the Committee on Education and Labor in support of the proposed Public Rights in Labor Disputes Act embodied in the following identical A1070

bills: H. R. 17, introduced by Representative AUCHINCLOSS, of New Jersey; H. R. 34, introduced by myself; H. R. 68, introduced by Representative HALE, of Maine; H. R. 75, introduced by Representative HESELTON, of Massachusetts; and H. R. 76, introduced by Representative HERTER, of Massachusetts:

WORK STOPPAGES ENDANGERING THE PUBLIC HEALTH OR SAFETY CANNOT BE PERMITTEDSOME LEGISLATIVE SOLUTION MUST BE PROVIDED

Until quite recently disputes between management and labor were not a matter of great concern to the general public. Our economic system was relatively simple and the great majority of people were comparatively independent economically of one another. Furthermore, labor was weak and in most cases strikes and lockouts were of short duration.

The situation is completely reversed today. Our economic system is complex and highly specialized. The great majority of people are dependent upon the continuous activity of many others for their day-to-day existence. Our food, shelter, light, and heat, and in almost every case our job, depend upon an unInterrupted supply of materials and of power, transportation, and distribution services. At the same time, organized labor has grown in strength and in staying power to the point where it can do battle on at least equal terms with management and work stoppages may result of indefinite duration, depriving the public of the goods and services on which our existence depends. Centralization of control in labor organizations has given a relatively few men, and in some cases a single individual, the ability to bring the entire economy of the country to a standstill.

Work sto pages can no longer be tolerated

where the public Health and safety are endangered. The wartime powers of the Government, inadequate as they have proved to be, will soon expire. The situation requires that some machinery be provided to take their place. The public also insists that this be done. The Government cannot be left Impotent to deal with these situations. The question is no longer whether we should take action, the only question is what sort of action should be taken.

WHAT FORM SHOULD SUCH LEGISLATION TAKE?

Two general lines of approach have been suggested:

(a) To weaken one party or the other to labor disputes so that that party either quickly capitulates or never dares risk a test, of strength with its adversary; or

(b) To prohibit by law work stoppages (whether strikes or lock-outs) by which the public health or safety would be endangered and, since no man can be compelled, in our free system, to work for or to employ another upon the latter's terms, to provide, some alternative means for the settlement of their dispute.

With all deference to the suggestions made by Senator BALL and others, it is submitted that there is little prospect that the first alternative will be adopted. It appears, therefore, that there is no choice but to adopt the second.

We believe that our bill presents a method for dealing with the situation which would be both reasonable and effective. Before discussing its provisions in some detail, however, I should like to suggest a few general principles which I believe should be followed in deciding what method of approach should be employed:

1. Every dispute which can be settled voluntarily should be so settled, and every possible encouragement and assistance to voluntary settlements should be provided.

2. Where intervention by Government is necessary, State and local governments should have the responsibility and should be permitted by the Federal Government to exercise the responsibility for handling just as many of these situations as it is possible for them to do.

3. Government seizure should not be re sorted to in any event.

4. When intervention by the Federal Government is required, the machinery provided should be such as to minimize the danger of regimentation. Thus it seems highly desirable that the adjudicating body should be neither a Government agency nor a permanent agency of any sort. Rather, each dispute should be decided on an individual basis by a group of persons brought together to settle that particular dispute and, as far as possible, selected by the parties themselves.

A SUMMARY OF THE PROPOSED PUBLIC RIGHTS IN
LABOR DISPUTES ACT
Our bill has two broad purposes:

A. The improvement of all labor-industry relations by strengthening the conciliation services of the Federal Government.

Under this heading our bill would create a Labor Disputes Conciliation Administration as an independent Federal agency; the concillation functions of the Department of Labor would be abolished, and all Federal conciliation functions concentrated in the new independent Conciliation Administration.

The Conciliation Administration would be headed by an Administrator, appointed by the President, with the advice and consent of the Senate, with up to three Assistant Administrators, and such staff and personnel as appropriations permitted.

The duty of the Conciliation Administration would be to offer conciliation services in labor disputes affecting the public interest and to help the parties settle their differences by negotiation and agreement rather than by strikes and lock-outs.

The

The conciliation Administration would have a labor-management advisory committee, consisting of seven members representing labor and seven representing business management, all appointed by the President with the advice and consent of the Senate. committee would meet at least every two months and advise the Administrator on the workings of the act. (The committee would also have another important function hereinafter referred to.)

B. The other broad purpose of our bill is to prevent work stoppages (and provide for their termination if they have already occurred) if the public health and safety would be endangered thereby. The bill would work this way:

(a) The President must find:

1. That a public emergency exists or is imminently threatened by the suspension or substantial curtailment of transportation, public-utility or communication services, or supplies of articles or commodities essential to the public health or safety as a result of a labor dispute affecting interstate or foreign commerce;

2. that the public health or safety is endangered or likely to be endangered; and

3. that local governmental facilities to prevent the work stoppage are not being or cannot be effectively utilized.

(b) Upon making such findings, the President shall issue an order forbidding the work stoppage (or requiring its termination if it has already occurred) and requiring that the status quo be maintained (or that the situation existing before the work stoppage, if one has already occurred, be reestablished and maintained) while the machinery which the bill provides for the settlement of the dispute is in operation.

(c) The settlement machinery is as fol

lows:

1. The parties are given 30 days to reach a voluntary agreement or to submit their dispute to voluntary arbitration.

2. If the parties have not done one thing or the other within 30 days, the President may at once, and after 15 additional days

must, direct the submission of the dispute to compulsory arbitration.

3. If compulsory arbitration is necessary it shall be conducted by a board of three arbitrators, one such arbitrator being chosen by each party from a permanent panel of at least 30 provided for by the bill, and the third by the first two-the Administrator to choose an arbitrator for either party if he fails or refuses to select his own.

4. The award of the arbitrators is binding upon both parties for 6 months unless modifiled by mutual agreement. It may be enforced in the same manner as an award under the United States Arbitration Act.

(d) The members of the permanent panel of arbitrators from which the parties would select the arbitrators for their particular disputes would be appointed by the President with the advice and consent of the Senate. The bill provides that the Labor-Management Advisory Committee, already mentioned, shall suggest names to the President for appointment to this panel and if the President appoints persons other than those suggested by the committee he must give his reasons for doing so.

(e) The President's orders prohibiting, or directing the ending of, work stoppages and requiring maintenance of the status quo would be enforced by injunctions issued by the United States district courts upon application only by the Attorney General of the United States. In such injunction proceedings the essential provisions of existing law with respect to due process, namely, provisions for verified complaints, hearings in open court before issuance of injunctions (other than temporary restraining orders). and jury trials for contempts are maintained.

(f) The bill contains nothing that could be construed to require any individual to perform labor or services without his consent. Indeed, it explicitly provides that no order of the President shall be construed to require any person unwillingly to perform labor or service. What the bill does prevent, so far as employees are concerned, is concerted action by way of strikes in the very limited situations where work stoppages affecting interstate or foreign commerce would endanger the public health or safety.

(g) To safeguard workers whose right to strike in these essential industries would be taken away the bill provides specifically that the arbitrators shall recognize that such workers should have at least as favorable a status in the matter of the terms and conditions of their employment as that enjoyed by workers in other industries.

A WORKABLE SOLUTION, AVOIDING REGIMENTATION, WITH A MINIMUM OF GOVERNMENTAL INTERVENTION

We believe that our bill meets the tests outlined earlier in this statement.

1. It encourages voluntary settlements. In this connection it should be noted that it makes possible submission by the parties to voluntary arbitration if they prefer that method.

2. It gives local and State governments

first opportunity to deal with all disputes within their jurisdiction if they can handle them adequately.

3. It does not involve Government seizure or operation of any business.

4. Finally, we believe that our bill avoids the dangers of regimentation.

(a) It differs completely from proposals which have been made for labor courts or other permanent Government agencies empowered to fix contract terms binding upon the parties to industrial disputes. Such proposals, we believe, would inevitably lead to decisions based upon political considerations, to the establishment of fixed and rigid wage structures and policies, and ultimately to governmental control over prices, allocation of products and services, and indeed all

A1071

phases of our economic life. Our bill would provide an ad hoc method of settlement for each dispute. No two arbitration boards would be the same, they would in no sense be governmental agencies, no precedents would be established, and no governmental policies would be created. The Government could not in any way intervene in any dispute, nor could it determine the terms of its settlement.

(b) Moreover, the application of our bill would be limited to the very few cases of great national emergency-in our view the remedy should be very sparingly applied or its effectiveness would be lost.

(c) So far as regimentation is concerned, we believe that, unless action is taken by Congress to provide the Government with adequate power to deal with this vital but limited class of cases, there is great danger that the public will insist on some drastic form of regimentation applied on a much wider scale, perhaps to all labor-industry disputes.

The great question, of course, is whether our bill will do the job. The usual argument will be made that "you can't force a man to work."

We admit that under our institutions a man cannot be compelled to work against his will. We don't try to make him by our bill. But, in the restricted situations in which our bill would apply, we can and would make strikes illegal. We believe this is necessary and proper and we are convinced that the great weight of opinion is in accord. Moreover, we make such strikes unnecessary by providing a substitute means of arriving at settlements of labor-industry disputes which we think is adequate and fair. We believe that the overwhelming majority of the public generally and of the people in labor's ranks will agree on this also. Public opinion will not tolerate, much less support, a strike by which the public health or safety is endangered and which it considers both illegal and unnecessary. Without public support no such strike would succeed and, we believe, few are likely to be attempted. If a few reckless and irresponsible individuals should attempt one, it would quickly collapse under the force of public opinion and

the sanctions provided by our bill.

The substantial objection to compulsory arbitration on the part of management is based on its fear of regimentation. We recognize the validity of this objection and, as explained above, we believe our bill avoids this danger.

The legitimate objections of labor must also be considered. They are based upon the fear that the right to strike cannot be taken away without depriving them of an essential means of realizing their just demands. Also labor hesitates to concede that the right to strike may properly be denied or limited under any circumstances for fear that a precedent will be established for denying or restricting strikes in all circumstances.

We submit that our bill meets these obJections also.

(a) The right to strike in the cases to which our bill applies is not necessary to secure fair treatment for labor. The system of arbitration established by our bill provides ample assurance of such protection. Indeed, we insist that labor's just grievances will have a much better chance of fair hearing and just solution by the boards of arbitration created under our bill than would be the case under machinery improvised after a crisis arises when public sentiment will be aroused and the chances for dispassionate and fair consideration of labor's problems will be much less favorable. Again, attention is called to the provision of our bill which requires that the arbitrators must recognize that labor is being deprived of its economic weapons in the cases where the public health and safety are involved and that any award made in such cases must take that fact into account and leave the employees affected in at least as favorable a situation with respect to the terms of their employment as those in other industries.

(b) Labor's position generally will be much improved and its chances of accomplishing its legitimate objectives enhanced under our bill which would protect responsible leaders and the rank and file of labor against the adverse public reaction to all labor which inevitably results when a few reckless and irresponsible leaders misuse their power to the detriment of the public.

(c) Unless some provision is made for dealing with work stoppages in the limited category of situations where the public health and safety would be endangered, there is great danger that, under pressure of some emergency, public opinion will demand and will obtain legislation far more drastic than our bill, under which the right to strike may be limited or denied in circumstances far beyond those to which our bill has application.

CONSTITUTIONALITY

It is submitted that our bill should, and I believe that unquestionably it would, be held constitutional.

The bill applies only to labor disputes affecting interstate or foreign commerce. Thus it is clearly within the sphere of Federal power under the commerce clause. The

due process requirement is satisfied because the provisions of the bill are neither arbitrary nor discriminatory-they are reasonably adapted to meeting a definite, limited objective in which the public interest is clear, and they do so in a manner fair to both sides in any dispute.

It is true that the United States Supreme Court held the Kansas Industrial Court Act unconstitutional insofar as it attempted to give power to a special court to fix wages in the coal mining and food and clothing industries (Wolf Packing Co. v. Court of Industrial Relations (262 U. 8. 522, 267, U. 8. 552, 1923 and 1925)). These cases, however, afford no precedent for holding that the provisions of our bill would be unconstitutional, for the following reasons:

1. The decisions involving the Industrial Court Act were clearly based upon the court's view that there was not a sumcient public interest in the continued operation of the plants and industries which that act placed under the jurisdiction of the special court to justify imposing so great a measure of governmental control of the parties in those plants and industries. The court emphasized the small extent of the public inconvenience which would result from such industries ceasing to operate. Our bill, on the other hand, under its own terms, could be invoked only upon a finding by the President that the public health or safety were endangered.

2. The situation in the early 1920's was very different from that prevailing today, in respect of the complexity and interdependence of our economic life and of the strength and extent of union organization and the power of a few union leaders or even a single individual to bring the entire economy of the country to a standstill.

3. The Kansas Industrial Court cases were decided before the Supreme Court's decisions of the last decade vastly expanded the scope of Federal power, and considerably modified early concepts of due process as applied to actions by both Federal and State Governments, for example:

(a) National Labor Relations Board v. Jones & Laughlin Steel Corporation (301 U. 8. 1 (1937)), in which the Court upheld the constitutionality of the National Labor Relations Act, with an opinion by Chief Justice Hughes specifically establishing the principle that acts which directly burden or obstruct commerce or its free flow are within the reach of the congressional power and that such acts are not rendered immune because they grow out of labor disputes.

(b) Nebbia v. New York (291 U 8. 502 (1934)), in which the Supreme Court upheld the constitutionality of the New York Milk Control Act which gave a State board power, among other things, to fix minimum and maximum retail prices of milk. The Court's opinion, written by Mr. Justice Roberts, clearly establishes that there is no closed class or category of businesses affected with a public interest and that the function of the courts in applying the due process pro

visions of the Constitution is to determine in each case whether in all the circumstances the regulation is a reasonable assertion of governmental authority or is arbitrary or discriminatory. The following language has become classic:

"If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it. the courts are both incompetent and unauthorized to deal."

3. There is a direct precedent for the fixing of wage rates. In Wilson v. New (243, U. 8. 322, 1917), dealing with the Adamson law, the Court held in a Nation-wide dispute over wages between railroad companies and their employees, with a general strike, commercial paralysis, and grave loss and suffering overhanging the country, Congress had power to prescribe wages obligatory on both parties to the dispute for a reasonable time. The Adamson law provided, among other thiongs, that for a 7-month period the railroads should pay their operating employees for 8 hours' work a wage not less than the one then established for a standard day, which had been generally 10 hours. Mr. Justice McReynolds' dissent in the Wilson case is interesting in connection with our present discussion. After stating that he could not concur with the majority that it was within the power of Congress to enact the statute, he continued. "But, considering the doctrine now amrmed by the majority of the Court as established, it follows as of course that Congress has power to fix a maximum as well as a minimum wage for trainmen; to require compulsory arbitration of labor disputes which may seriously and directly jeopardize the movement of interstate tramc; and to take measures effectively to protect the free flow of such commerce against any combination, whether of operatives, owners, or strangers."

4. Finally, it is clear that the right to strike is not an absolute right under the Constitution, but that it may be regulated and, in certain circumstances, denied in the public interest. Truax v. Corrigan (257 U. 8. 312, 363 (1921, Brandeis, J.)); Dorchy v. Kansas (272 U. 8. 306, 311 (1926, Brandeis, J.)); Aikens v. Wisconsin (195 U. S. 194, 204-205); Carpenters Union v. Ritter's Cafe (315 U. S. 722, 724 (1942, Frankfurter, J.)).

Strikes in hospitals that endanger life and health, in charitable institutions that withhold relief to the needy, and in government and utilities that disrupt the life of a whole community may be regarded as in this category. Jewish Hospital v. John Doe (252 App. Div. 581 (New York, 1937)); Elizabeth General Hospital v. Employees Local A. A. (4 labor cases, par. 60, 590); Western Pennsylvania Hospital v. Lichleiter (340 Pa. 382, 17 A tl. (2d) 206 (1941)); Arthur v. Oakes (63 Fed. 310 (1894)).

In Dorchy v. Kansas (1926, supra), Mr. Justice Brandeis said:

"But a strike may be illegal because of its