ENFORCEMENT OF NO‐STRIKE CLAUSES THROUGH DISPARATE DISCIPLINE OF UNION OFFICIALS: ANOTHER DILEMMA IN NATIONAL LABOR POLICY

• Date: 01 June 1983
• Published date: 01 June 1983
• Author: JOHN L. WATKINS
• DOI: http://doi.org/10.1111/j.1744-1714.1983.tb00077.x

ENFORCEMENT

OF

NO-STRIKE CLAUSES THROUGH

DISPARATE DISCIPLINE

OF

UNION OFFICIALS:

ANOTHER DILEMMA IN NATIONAL LABOR POLICY?

*JOHN

L.

WATKINS

INTRODUCTION

A

strike is labor’s primary economic weapon. The threat of a strike

backs up labor’s demands at the bargaining table and in many cases ac-

tually hastens the formation of collective bargaining agreements.

Thus,

strikes are sanctioned by

our

national labor laws. A strike is

clearly “concerted activit[y]

. . .

for

mutual aid

or

protection” protected

by Section

7

of

the

NLRA.’

After a collective bargaining agreement is reached, however, consid-

erations different from economic warfare come to the fore. Strikes are

sanctioned at least in part because they can hasten the formation of

collective bargaining agreements; however, once an agreement

is

reached, strikes threaten industrial harmony:

[Shrikes in breach of contract frequently injure all concerned: the

employer, employees, and the public. Strikes and lockouts by their

nature squander human working capacity, the full use of which is

essential to the enjoyment of

the

Nation’s productive potential.

. . .

Labor, management, and

the

public

share

a

“common goal

of

uninter-

rupted production.” The essential tenet of our labor policy is that “a

system

of

industrial self-government” based on consensual (albeit

vigorously negotiated) labor contracts

is

preferable to “strikes,

lockouts,

or

other self-help.”*

*

Hansel1 and

Post,

Atlanta, Georgia.

’

29

U.S.C.

9

157

(1976).

Complete

Auto

Transit,

Inc.

v.

Reis,

451

US.

401.

418-19

(1981)

(Powell,

J..

concur-

ring).

186

I

Vol.

21

I

American

Business

Law

Journul

Thus, although some rights have been declared non-waivable by the

union through collective bargaining,' unions have been allowed to

waive the right to

strike

by including a no-strike clause in a collective

bargaining agreement, and a strike breaching a no-strike clause is un-

protected activity under the

NLRA.'

The Supreme Court has often expressed the view that a no-strike

clause is the

quid

pro

quo

for including a grievance-arbitration provi-

sion in the collective agreement.6 The critical importance of arbitration

to our labor policy is clear:

[Tlhe grievance machinery under

a

collective bargaining agreement

is

at

the very heart

of

the system of industrial self-government. Arbitra-

tion is the means

of

solving the unforeseeable by molding

a

system

of

private law

for

all the problems which may arise and to provide

for

their solution in

a

way which will generally accord with the variant

needs and desires of the parties. The processing of disputes through

the grievance machinery is actually a vehicle by which meaning and

content are given

to

the collective bargaining agreement.d

Therefore, the enforceability of contractual grievance-arbitration pro-

visions and their companion no-strike clauses is a key to the develop-

ment

of

a stable, mature national labor policy. Thus

the

Supreme

Court has held that unions may specifically enforce a grievance-arbi-

tration provision under Section

301

of the Taft-Hartley Act.' Similarly,

the Court has held that in certain situations an employer may specifi-

cally enforce a no-strike clause by obtaining an injunction under Sec-

tion

301.'

'

E.g.,

NLRB v. Magnavox Co.,

415

US.

322 (1974)

(holding that a union may not waive

the normal solicitation and distribution rights

of

employees by collective bargaining).

"But such unwaivable statutory rights are rare."

A.

COX,

D.

BOK, R. GORMAN. LABOR

'

Complete Auto Transit, Inc. v. Reis.

451

US.

at

420

(Powell,

J.,

concurring); Atkin-

son

v.

Sinclair Refining Co..

370

U.S.

238. 246 (1962);

NLRB v. Rockaway News Co.,

345

US.

71, 80 (1953).

NLRB

v.

Sands Mfg.

Co..

306

US.

332, 344 (1939).

'

E.g..

United Steelworkers v. Warrior

&

Gulf

Navigation Co.,

363

US.

574, 578

n.4

(1960);

United Steelworkers v. American Mfg. Co.,

363

US.

564. 567 (1960);

Textile

Workers v. Lincoln Mills of Alabama,

353

U.S.

448. 455 (1957).

"

United Steelworkers v. Warrior

&

Gulf

Navigation Co.,

363

U.S.

574,

581

(1960).

'

Textile Workers v. Lincoln Mills

of

Alabama,

353

US.

448 (1957).

'

In Bops Markets Inc. v. Retail Clerks, Local

770.398

US.

235 (1970),

the Court over-

ruled Sinclair Refining

Co.

v. Atkinson,

370

US.

195 (1962)

and allowed injunctions

against illegal strikes when they are over a grievance which the parties are bound

to

arbi-

trate. In such

a

case, the employer

is

ordered to arbitrate as a condition of obtaining the

injunction. and before granting an injunction. a court

is

also bound to consider ordinary

principles of equity.

398 US.

at

254.

However. in Buffalo Forge

Co.

v. United Steelworkers,

428

US.

397 (1976).

the Court

affirmed a district court ruling that no injunction should be issued against a sympathy

LAW-CASES

AND

MATERIALS

625 (1981).