Boycott Ban Prolongs Eastern Strike : Secondary Picketing Could Force Bush or Congress to Act

The final outcome of the dispute between the machinists union and Eastern Airlines may hinge on how the courts, the President and Congress treat the union’s attempts to extend its picketing to employers other than Eastern. Secondary boycotts are legal under the Railway Labor Act of 1926, which covers airlines and railroads. But the National Labor Relations Act of 1935, covering almost all other industries, prohibits such boycotts.

Transportation Secretary Samuel K. Skinner has described the two labor laws’ different treatment of a secondary boycott as an “anomaly.” He would prefer to make airline and railroad secondary boycotts unlawful. The real oddity in federal labor law, though, is not the lawful status of secondary boycotts in the airline and railroad industries, but the illegality of secondary boycotts in nearly all other industries.

The two federal labor laws have the common objective of encouraging collective bargaining, in part by making employers bargain with unions if a majority of their employees want collective bargaining. The Railway Labor Act was a response to particularly violent strikes for recognition in the railroad industry. The National Labor Relations Act was a response to industrial strife over union recognition and the Depression. Both statutes protect the right to strike employers with whom a union has its primary dispute.

The secondary boycott ban has the attraction of simple logic. It protects “neutral” employers. It also reduces the ability of a powerful union to shut down the economy. For those two reasons, Congress in 1947 amended the National Labor Relations Act with the Taft-Hartley Act. Among other things, it outlawed the secondary boycott. The Taft-Hartley Act was passed because there had been an unusually large number of strikes immediately after World War II restraints on union strikes were lifted.

Why does our national labor policy treat the secondary boycott differently in different major industries? Sen. Robert Taft responded to that question when his bill was debated on the floor of the Senate in June, 1947. He said: “There were no abuses which had arisen in connection with the operation of the Railway Labor Act . . . .” By “no abuses” he meant that after passage of the Railway Labor Act in 1926, railroads and airlines never experienced the same frequency of strikes, including secondary boycotts, that industries covered by the National Labor Relations Act had experienced.

In 1987 the U.S. Supreme Court unanimously decided that secondary boycotts are not unlawful under the Railway Labor Act. Its decision in the Burlington Northern vs. Brotherhood of Maintenance Employees case reasoned that the Norris-La Guardia Act of 1932 prohibited federal courts from enjoining union picketing in labor disputes. The Norris-La Guardia Act was passed by Congress because of a long history of excessive and often unfair uses of injunctions against a wide range of union activities.

Despite the Norris-La Guardia Act and the Supreme Court’s Burlington decision interpreting it, federal trial judges have enjoined the machinist union’s attempts to boycott employers other than Eastern. Many federal judges are apparently unable to resist the temptation to save the country from what they perceive to be the harmful effects of a potentially disruptive strike. They have forgotten or are unwilling to accept that Congress has shifted governmental power over major strikes from the courts to Congress and the President, as evidenced by the Norris-La Guardia Act and the Burlington decision.

In the current dispute, trial courts have enjoined the machinists’ secondary boycott attempts on the dubious ground that they are not prohibiting secondary boycotts but sympathy strikes of other employees. However, an objective of the secondary boycott is to induce sympathy strikes by other employees against their employers. A sympathy strike induced by a lawful secondary boycott cannot logically become an unlawful sympathy strike.

The Railway Labor Act has procedures designed to achieve voluntary peaceful settlements of labor disputes. The statute provides for mediation, voluntary arbitration, “cooling-off” periods and presidential emergency boards with power to make settlement recommendations that Congress can enact into law if the recommendations are not accepted by the employer and union.

On how the possibility of a secondary boycott can help achieve settlement, the justices in the Burlington case unanimously concluded:

“(I)n view of the interests of both parties in avoiding a strike . . . the availability of such self-help measures as secondary picketing may increase the effectiveness of (the Railway Labor Act) in settling major disputes by creating an incentive for the parties to settle prior to the exhaustion of the statutory procedures.”

In practice, the Railway Labor Act has worked without a secondary boycott ban. In the act’s 63-year history, the secondary boycott has been used only three times in major railroad disputes. Until now, it has never been attempted in a major airline dispute.

If federal judges had not blocked a secondary boycott, the mere threat of a prolonged one might have forced President Bush to convene an emergency board. Then, emergency board recommendations, either adopted by Eastern and the machinists union or, if necessary, enacted by Congress, would have terminated this now seemingly interminable dispute.