Using the courts to undercut unions

May 21, 2009

Lee Sustar looks at the court order banning an LA teachers' strike last week in the context of the long history of anti-union judges intervening in labor struggles.

THE JUDGE who barred a one-day strike by Los Angeles teachers May 15 cited student safety as a primary concern.

In reality, Los Angeles County Superior Judge James Chalfant was acting on behalf of powerful political forces that want to break United Teachers Los Angeles (UTLA). And by issuing a restraining order against the union--including threats of fines that would bankrupt it--Chalfant was following in a long American tradition of using "injunction judges" and other government intervention against workers' democratic right to strike.

By the late 19th century, the anti-strike injunction was already commonplace, as U.S. workers struggled to organize militant and effective labor organizations. The great railroad workers' uprising of 1877, the bitter fight for the eight-hour day in the 1880s and the dramatic Pullman rail strike of 1894 were all met with state repression. Strikebreaking by state militias--the forerunners of today's National Guard--was commonplace.

Invariably, the justification for these crackdowns was that the strikers were lawbreakers. And if there was no law on the books specifically banning a job action, there was always a judge--local, state or federal--who was happy to issue a restraining order barring workers from walking out. This scenario was so commonplace that workers called it "government by injunction."

Government troops protect a train during the Pullman strike in 1894
Government troops protect a train during the Pullman strike in 1894

That phrase was embraced by anti-labor federal judge, James Jenkins, who issued an infamous strikebreaking injunction in 1894. In a 1905 interview upon his retirement, he told the New York Times:

[I]t is, in a true and proper sense, "government by injunction," for it is government by law. The remedy has long existed, and will exist so long as government by law continues, so long as we have liberty regulated by law, and not irresponsible, uncontrolled license to exercise one's sweet will without regard to the rights of others, which is anarchy, and no howling of the mob can ever abolish it until government by law is wrecked and "chaos is come again."

It is idle to talk of a peaceable strike. None such ever occurred. The suggestion is impeachment of intelligence.

THE MOST notorious "injunction judge" was William Howard Taft, a Republican who went on to be elected president of the United States in 1908 and appointed Chief Justice of the Supreme Court in 1921.

Eugene Debs, the former railroad union leader who became a leader of the Socialist Party, described Taft's role in a key strike in 1893:

What else to read

Historian Sidney Lens draws out the lessons of some of the U.S.'s most bitterly fought working-class struggles--and the repression used against workers--in The Labor Wars: From the Molly Maguires to the Sit-Downs, now republished by Haymarket Books.

Sharon Smith's Subterranean Fire: A History of Working-Class Radicalism in the United States is an excellent history of the labor struggles that have shaped U.S. history.

For an account of the 1934 Minneapolis Teamster strikes that ushered in the high point of 1930s struggle, see Teamster Rebellion by Farrell Dobbs, who became a socialist through his participation at Minneapolis.

Labor's Giant Step by Art Preis gives an account of the first 20 years of the CIO, starting with the federation's roots in the turbulent 1930s. Jeremy Brecher's Strike! is the place to start for a survey of U.S. labor history.

Judge Taft first came into national notoriety when, some years ago, sitting with Judge [Augustus] Ricks, who was later tried for malfeasance, they issued the celebrated injunction during the Toledo, Ann Arbor & North Michigan railroad strike that paralyzed the Brotherhood of Locomotive Engineers and Firemen and won for them the gratitude and esteem of every corporation in the land.

They were hauled to Toledo, the headquarters of the railroad, in a special car, pulled by a special engine, on special time, and after hastily consulting the railroad magnates and receiving instructions, let go the judicial lightning that shivered the union to splinters and ended the strike in total defeat.

Judge Taft is a special favorite with the trust barons and his elevation to the cabinet was ratified with joy at the court of St. Plutus.

Another sweeping federal court injunction was used in 1894 to crush the Pullman rail strike led by Debs. To justify the intervention, the U.S. Post Office attached mail cars to Pullman passenger cars. This made the strike a federal matter, which Democratic President Grover Cleveland used as an excuse to deploy federal troops as strikebreakers. They took up position in Chicago on July 4, 1894.

In his classic book The Labor Wars, author and labor leader Sidney Lens described the crippling impact of the injunction, which banned Debs and 14 other union leaders from "compelling, or inducing or attempting to compel or induce, any railroad employees from taking strike action or acting in solidarity with it":

What this meant in effect was that any action to further the strike would be in contempt of court, and with the people involved subject to arrest and imprisonment.

It thus became illegal for Debs to send wires or otherwise communicate with his local unions. It became illegal for striking workers to picket, raise relief funds or open a strike headquarters. Worst of all, it became illegal under the injunction to "persuade" a railroad worker to join the strike or stay on strike, even if the means of persuasion were peaceful and amicable.

The strike was violently suppressed, and several union leaders served jail time, including Debs, who was behind bars for six months.

In 1914, the labor movement succeeded in efforts to get Congress to pass the Clayton Act, which limited the scope of the anti-strike injunctions. But various court rulings poked enough holes in the legislation that by the 1920s, "government by injunction" to bar strikes was once again the norm.

ANTI-STRIKE injunctions aren't always effective. If they were, the U.S. would be virtually union-free, and Social Security and what passes for the U.S. welfare state wouldn't exist. At various points in U.S. history, workers' struggles were so powerful that "government by injunction" and state violence couldn't win.

The hallmark example of this is the sit-down strikes in the auto plants in 1936-37. Workers knew they'd face anti-strike injunctions and the National Guard, so they decided to occupy their factories, essentially holding them hostage until management came to terms. This defiance, backed by a mass movement of workers in the 1930s, forced employers and the government to grant major concessions to labor, including a federally guaranteed right to organize unions.

The employers hadn't given up, of course. Once labor's upsurge cooled off, they retaliated with the Taft-Hartley Act of 1947, which linked an anti-communist crackdown on labor militants with a series of measures that hobbled industrial action by banning "secondary boycotts"--that is, sympathy strikes.

The law--co-authored by Robert Taft, son of the former "injunction judge" and president--allows the White House to appoint a three-person panel to investigate sector strikes to determine if they would create a "national emergency." If so, the president can seek a federal court order banning a strike.

Denounced as the "slave labor law" by even moderate union officials, Taft-Hartley has remained a powerful weapon of employers.

But its impact depends on the balance of forces in a given labor struggle. In 1978, 160,000 striking coal miners defied Democratic President Jimmy Carter's use of Taft-Hartley and continued a walkout that lasted 110 days. "Taft can mine it, Hartley can haul it, and Carter can shove it," was the miners' slogan.

In the three decades since then, though, government by injunction has made a big comeback.

Pointing the way was Ronald Reagan's firing of some 11,000 striking air traffic controllers in 1981. The Professional Air Traffic Controllers Organization (PATCO) had been under an injunction prohibiting job actions since 1970, and the Reagan administration went to court to obtain several more court orders, resulting in the arrest of dozens of union leaders and heavy fines that drained the union treasury. The failure of the AFL-CIO to actively support PATCO meant the union could be isolated and destroyed.

By the mid-1980s, the anti-union injunction in strikes was once again routine, even when judges didn't attempt to stop walkouts.

Even when picket lines were largely symbolic, with no serious attempt made to stop strikebreakers, employers got judges to place strict limits on the numbers and actions of picketing strikers. Wherever workers' action grew more militant--as in the Hormel meatpacking plant strike in Austin, Minn., in the 1980s and the Detroit newspapers strike in the 1990s--judges imposed draconian penalties on unions and their members.

Meanwhile, Democratic President Bill Clinton used the Railway Labor Act to bar several strikes on railroads, and George W. Bush invoked Taft-Hartley during a 2002 lockout of West Coast dockworkers.

What's significant about Judge Chalfant's injunction in Los Angeles is that it highlights the agenda of political and business interests in furthering corporate-friendly "school reform"--the expansion of quasi-private charter schools, mandatory testing for kids and the abolition of job security for teachers.

To achieve that aim, these powerful forces are willing to resort to "government by injunction" and every other anti-labor tactic at their disposal. UTLA--and labor unions everywhere--will have to challenge this latest assault on workers' rights.

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