The First Step

June 8, 1959

The hospital strike in New York City threw a brilliant light on what is basically wrong with our labor law and law enforcement. Hospitals, it is true, are exempt from the labor-law provisions that apply to profit-making business. They are not forced to bargain with a particular union. They are free to apply for an injunction against mass picketing. The besieged New York hospitals did apply for injunctive relief and were granted injunctions by courts in Manhattan and Brooklyn. But mass picketing nonetheless continued. The mayor and police of New York were slow to enforce the injunctions.

The situation exposed the absurdity of the slogan, dear to muddleheaded “liberals,” that one must never pass a picket line. Let us hope that for the peace of their souls none of these people had seriously ill friends or relatives who were patients at any of the hospitals affected.

But the incident also serves to expose the hollowness and irrelevance of the Kennedy bill passed by the Senate. That bill is now opposed by labor-union leaders on the ground that it interferes in detail in the internal affairs of ostensibly voluntary organizations. This is a proper ground for opposition. But a far more serious reason is that the Kennedy bill and its sponsors remain completely blind to what is fundamentally wrong in our labor law. This is that it permits violence, intimidation, and lawlessness.

NEED FOR REPEAL

What is needed is not more Federal labor legislation but less. What is needed is repeal-above all repeal of the Norris-LaGuardia Act.

Few people realize what this law really does. It is commonly believed that it merely prevents the Federal courts from enjoining “strikes.” But the right of workers peaceably to quit work, and even to do so collusively, was not denied by the Federal courts prior to the enactment of the Norris-LaGuardia Act. What the courts had been enjoining, in the words of Prof. Sylvester Petro, was “the violent, intimidatory, coercive activity of trade unions, not strikes for higher wages and better working conditions.”

The Federal courts had enjoined only unlawful conduct which threatened irreparable harm. But in the Norris-LaGuardia Act of 1932, Congress, instead of defining boundaries for union conduct, chose to make practically all union conduct unenjoinable. To prohibit Federal judges from issuing labor injunctions, on the assumption that they cannot be trusted to act impartially, is an insult to the integrity of our courts. It implies distrust of the judicial system itself.

PICKETING AS COERCION

The evil begun by Congress has been compounded by the “new” Supreme Court. During the past twenty years it has provided a succession of additional privileges for aggressive union action. Until recently, it even identified the coercive economic weapon of picketing with “freedom of speech.” Under such reasoning, the United Automobile Workers were simply exercising “freedom of speech.” when they set up a line of 2,000 pickets around the Kohler plant, forming a human barricade, making entrance to the plant impossible, and harassing, assaulting, and humiliating nonstrikers.

Where the Norris-LaGuardia Act bars employers and nonunion employees from going to the Federal courts for immediate relief from irreparable injury, the Supreme Court’s more recent pre-emption doctrine even bars them from going to the state courts. Chief Counsel Kennedy and some members of the McClellan committee heaped scorn as well as direct accusations of impropriety upon employers who had yielded to shake-downs. Yet it is Congress itself that has made it impossible for the victims of trade-union wrongdoing to secure any help from the law.

The primary need is to restore the principle that every man who feels himself aggrieved by unlawful conduct has a right to a day in court. And local officials, instead of courting the so-called “labor vote,” must have the courage to enforce the laws and judicial decisions against violence or intimidation.

It is because it is completely oblivious of such primary needs that the Kennedy bill would be a mockery of labor-law reform.