Congress was able to break the rail strike last week because of a century-old law designed to weaken the disruptive power of unions. It’s time to cast aside this law and every other government-mandated strike prohibition that ties the hands of workers.

Illustration depicting workmen and firemen dragging a fireman and engineer from a Baltimore freight train during the Baltimore and Ohio Railroad strike. Woodcut, 1877. (Bettmann / Getty Images)

On Friday, December 2, President Joe Biden signed a joint resolution from Congress binding railroad workers to a September tentative agreement with the railroad corporations — a contract that a majority of railworkers had recently rejected. Joined by labor secretary Marty Walsh and transportation secretary Pete Buttigieg, Biden declared, “We’ve avoided a catastrophic rail strike.” The reason Congress could intervene in the railroad labor dispute is that a century-old law — the Railway Labor Act of 1926 — explicitly provides for the possibility of a strike while simultaneously limiting its disruptive power.

Understanding this contradiction — allowing for strikes but within narrow, government-sanctioned confines — requires a review of the history of the right to strike and its regulation in what came to be called “emergency disputes.” Whereas the US legal system looked askance at workers’ right to walkout for much of the Gilded Age and Progressive Era, the effective legalization of trade unions during the New Deal transformed the relationship between workers and bosses in the United States. If labor unions were to be legalized, US politicians reasoned, their negotiations with employers had to be regulated in those workplaces where, in the words of the 1947 Taft-Hartley Act, interruption of service “imperils the public health and safety.”

The Railway Labor Act is the oldest federal statute providing for such regulation — and proved to be one of the most decisive forces in the recent showdown between railroad workers and employers.

When Strikes Were Illegal

The precedent for peacetime intervention in the railroad industry’s labor disputes dates to the efforts — by corporations as well as the federal government — to suppress the great railroad strikes of 1877 and 1894, which erupted after sweeping cuts to workers’ wages during the business recessions of that era.

Beginning in the late nineteenth century, employers repeatedly turned to the courts to issue injunctions against trade unions engaged in work stoppages. Owners and managers argued that strikes, especially those national in scope, violated the commerce clause of the US Constitution — because strikes interfered with the free flow of goods, labor, and capital across state boundaries — and, eventually, the Sherman Antitrust Act of 1890, because unions conspired to set wages.

The most famous injunction of the Gilded Age came in 1894, when the federal government sent the US Army to Chicago to enforce a legal decree against the American Railway Union and the strike, led by Eugene V. Debs, that had crippled commerce throughout the country. Debs was barred from even communicating with members of his union. When he violated the edict, he was jailed for six months.

Depiction of Illinois National Guardsmen firing at striking workers on July 7, 1894, during the Pullman Strike. (G. W. Peters, from a sketch by G. A. Coffin / Harper’s Weekly via Wikimedia Commons)

For the next forty years, anti-union employers found the courts a willing partner in suppressing strikes and other forms of working-class collective action. In 1908, the Supreme Court cemented the federal government’s capacity to undercut organized labor by ruling in the famous “Danbury Hatters” case that sympathy strikes and union-organized boycotts violated the Sherman Antitrust Act.

“Injunction law” therefore ruled the American work regime throughout the Gilded Age and Progressive Era. Felix Frankfurter, a future Supreme Court justice, and George Norris, a progressive Republican senator, railed against this abridgment of labor rights. Frankfurter thought such judicial strike prohibitions created “embitterment in masses of men and women” that led to “the growing conviction that the powers of the government are perverted by, and in aid of, the employers, and that the courts are the instrument of this partisan policy.” It took the onset of the Great Depression to curb such judicial overreach, which pro-labor critics denounced as “injunction law.” In 1932, Congress passed the Norris-LaGuardia Act, which affirmed labor organizations’ freedom of association and stripped federal courts of the power to issue injunctions in labor disputes.

The Roots of the Railway Labor Act

Yet Norris-LaGuardia had little impact on the railroads, because in 1926 Congress had passed the Railway Labor Act. That law came on the heels of repeated strike threats during and after World War I, when labor’s precautionary attitude was temporarily eclipsed by the period’s militant mood and rapid organizational gains.

In 1916, railway unions — then some of the country’s largest and most potent labor organizations — demanded an eight-hour day, perhaps the greatest unfulfilled quest of the nineteenth-century working class. As in 1894, the executive branch intervened to keep commerce flowing, but in this instance President Woodrow Wilson — mindful of the mass disruptions that railroad labor could cause — requested legislation from Congress granting the shortened workday for interstate railway workers. When Congress passed the Adamson Act later that year, it became the first federal law that regulated the hours of work in private companies.

The Railway Labor Act came on the heels of repeated strike threats during and after World War I.

In 1917, the threat of a wartime strike by railroad workers against companies refusing to comply with the Adamson Act, combined with private mismanagement of an industry now vital to the war effort, triggered the White House decision to seize and run the railroads for the duration of US participation in the Great War. When railroad property was finally returned to private ownership in 1920, Congress established a Railway Labor Board to constrain the strikes and strike threats that had created so much turmoil in this important industry. But the board proved a failure, evident in 1922 when during a wave of falling prices the new government agency ordered a wage cut that provoked a bitter, violent, and sometimes radical work stoppage by 400,000 railroad shop workers. That strike ended only after a federal judge issued a sweeping injunction that imprisoned strike leaders and offered military protection to strikebreakers who crossed picket lines.

Radical unionist William Z. Foster. (Wikimedia Commons)

The Railway Labor Act (RLA) of 1926 emerged in this anti-union era. Drafted privately by the railroad corporation lawyers and the railway brotherhoods, it was nevertheless written to preserve the hard-won right to strike denied by the injunction courts. Not even the Association of Railway Executives dared to argue that the Congress should legislate forced labor on their employees. Colonel A. P. Thom, general counsel of the executives’ association, told the Congress in January 1926, the law was written

in the spirit not of forcing or attempting to force the application of the last extreme of congressional power. . . . The conclusion of the railroad executives is that the time has not come in the public interest when it is necessary to press down that crown of thorns upon labor’s brow.

Section 9 of the statute reads: “Nothing in this Act shall be construed to require an individual employee to render labor or service without his consent.”

Under the law, a strike must be postponed for mediation and, failing mediation, the findings of a Presidential Emergency Board. After the exhaustion of these procedures, the parties may strike, lock out their workers, or change their terms of employment. To the conservative leaders of the Railroad Brotherhoods, the preservation of a self-help remedy was a victory which helped to preserve the legitimacy of their organizations. To radicals like William Z. Foster, the 1926 act was “a blow to the vitals of railroad unionism” that “outlaws strikes.” In an era when workers’ struggles had so recently awed the nation, it was a compromise Congress was willing to accept.

Taft-Hartley and the “Cooling-Off” Period

Although the RLA, Norris-LaGuardia, and the 1935 Wagner Act all, to varying degrees, guaranteed unions the right to strike, it took just a few years for the federal government to once again curb workers’ right to withhold their labor. In World War II, the trade unions agreed to a no-strike pledge in return for federal guarantees that their wages would keep pace with inflation and the membership grow as the defense industry hired millions of new workers. “Wildcat” strikes often broke out when workers thought employers or the government were not living up to their side of the bargain. What’s more, these unauthorized strikes were not infrequently accompanied by federal seizure of struck property, a power given statutory basis in the War Labor Disputes Act of 1943 — a resolution to illegal strikes highly unfavorable to the owners of the struck property.

Passed in 1947, the Taft-Hartley Act was a product of corporate efforts to erode labor power.

Passed in 1947, the Taft-Hartley Act was a product of corporate efforts to erode labor power in a postwar era when employers were growing increasingly militant and organized in defense of their managerial prerogatives. The law may be best known for its provisions barring Communists from union leadership and allowing states to enact anti-labor “right-to-work” laws. But unlike wartime efforts to outlaw strikes in critical industries, this cudgel against labor did not provide a statutory basis for seizing property made inoperable by a labor dispute.

Along with the prohibition against secondary boycotts, Taft-Hartley allows the president to seek a court injunction triggering a back-to-work order for any strike deemed to threaten national security or “imperil the national health or safety.” This kind of presidential injunction would last for an eighty-day “cooling-off” period, during which federal mediators would seek a settlement.

The idea that union hotheads needed a ‘cooling-off’ period to quiet their anger was a comforting fantasy to many an employer and anti-labor politician.

The idea that union hotheads needed a “cooling-off” period to quiet their anger was a comforting fantasy to many an employer and anti-labor politician. In practice, an eighty-day strike hiatus often demoralized workers and gave employers time to build up inventory or take additional measures to weather a strike’s resumption. Most strikes enjoined by a Taft-Hartley presidential edict were settled during the “cooling-off” period.

Presidents have sought back-to-work orders under the Taft-Hartley Act thirty-two times, mainly in the 1950s and 1960s, when national unions were potent and almost one-third of the private sector workforce was unionized. Ten of the injunctions involved longshore strikes, with the last coming in 2002 when President George W. Bush ended a walkout that had idled West Coast ports for ten days. No president since has used the strike suspension provisions of Taft-Hartley, surely a testament to labor’s weakness rather than Oval Office moderation.

“The Only Illegal Strike Is an Unsuccessful Strike”

The government is not all powerful, and workers throughout the twentieth century often won strikes deemed illegal by either the courts or a state or federal agency. Many unionists have adhered to the old adage that “the only illegal strike is an unsuccessful strike.”

During World War II, many wildcat strikes, often lasting for a shift or shorter, persuaded foremen, plant managers, and other executives to accommodate union militancy rather than seek governmental intervention. In the 1960s, strikes by schoolteachers and other government employees smashed strike prohibitions and fostered unionization in the public sector. In 1966, when New York subway workers struck for higher pay, the city obtained an injunction prohibiting the work stoppage and imprisoning Transport Workers Union of America (TWU) president Mike Quill and seven other strike leaders. “The judge can drop dead in his black robes!” Quill declared just before he went to jail. The strike continued, ending only when the TWU secured a sizable wage increase and other improvements.

Post office workers on strike in 1970. (US National Archives)

That victory may well have helped inspire the more than 200,000 postal workers who struck for higher pay in 1970 — by far the largest strike ever conducted against the US government, even though it was a federal crime punishable by immediate discharge and prosecution. President Richard Nixon declared a national emergency and sent 25,000 troops into New York City to move the mail then vital to banking, insurance, and stock market operations. But the troops could not do the job, so backroom negotiations with the striking unions soon commenced, yielding a large wage hike and a reorganization of the post office as a more independent part of the federal government.

Such illegal strikes continue. The red state teacher strikes of 2018 openly flouted the law and were largely successful. “At some point, you have to choose between doing what is right and doing what is legal,” a Massachusetts teacher union leader explained this year. “We choose what is right.”

The Railway Labor Act and every other government-mandated strike prohibition should be cast aside. With the economic strength of US labor at a historic low — even as pro-union sentiment reaches new highs — any obstacle to exercising the right to strike forestalls the reemergence of the vibrant union movement we desperately need.

The Railway Labor Act and every other government-mandated strike prohibition should be cast aside.

Last week’s congressional vote to impose an “agreement” on rail workers demonstrates just how precarious the victories of the twentieth century are today. It also serves as an object lesson for those seeking legal solutions in the future to pressing economic and social problems in the present: the decisions of courts and legislatures may enforce the norms and standards in the economy, but it is organized action that most effectively alters the balance of power those norms reflect.

A well-organized strike by railroad workers, legal or illegal, could win not just more sick days and more humane work schedules for those unionists but would provide an example of working-class power inspirational to millions of young and not-so-young workers seeking to build their own unions and challenge the entrenched power of capital, from coffee shops to warehouses and beyond.

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