Death by Lethal Injunction : National Emergency Strikes Under the Taft-Hartley Act

The Taft-Hartley Act gives the President and federal courts extraordinary power to enjoin lawful strikes that pose a threat to national health or safety. Although rarely used, this power has great impact. We show that Taft-Hartley injunctions lowered public support for unions by portraying them as selfish economic actors who were harmful to the nation, and altered the balance of bargaining power in critical strikes, usually to the detriment of unions. We trace these injunctions to their common law antecedents from the 1820s. We show that courts routinely abused their equitable powers in labor disputes. Our research shows that Taft-Hartley courts have failed to avoid this pitfall. They (1) failed to exercise judicial powers, (2) relied on distorted assumptions to support injunctions, (3) interpreted national health to mean national inconvenience, (4) favored the government - and by extension, powerful employers - by granting eighty percent of the petitions for injunctions, and (5) issued impractical orders. Although the last Taft-Hartley injunction was issued in the 1970s, this public policy remains relevant in two respects. When major strikes affect the nation - most recently, the 1997 Teamsters strike at UPS - presidents respond to growing public pressure by threatening to invoke this power. Although politically expedient, this power undermines a main tenet of the National Labor Relations Act that permits unions to strike in support of their bargaining proposals. In addition, our research questions a current theory explaining that the sharp decline in strikes resulted from President Reagan's use of the striker replacement doctrine in the PATCO strike. By showing that President Carter's use of Taft-Hartley in the 1977-1978 national coal strike caused the first sharp drop in strikes, and by demonstrating that this law was intended to impair this right, we show that the presidency plays a more complex role in the dying right to strike