Ross, Nelson G

NELLCO Consortium Legal Scholarship Repository

Labor Law—Public Utility Anti-Strike Act—Invalid Under NLRA.—Street Elec. Ry. and Motor Coach Employees v. Missouri

Digital Commons @ Boston College Law School

Boston College Law ReviewVolume 5 | Issue 1 Article 2010-1-1963Labor Law—Public Utility Anti-StrikeAct—Invalid Under NLRA.—Street Elec. Ry. andMotor Coach Employees v. MissouriNelson G. RossFollow this and additional works at: http://lawdigitalcommons.bc.edu/bclrPart of the Labor and Employment Law CommonsThis Casenotes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been acceptedfor inclusion in Boston College Law Review by an authorized administrator of Digital Commons @ Boston College Law School. For more information,please contact nick.szydlowski@bc.edu.Recommended CitationNelson G. Ross, Labor Law—Public Utility Anti-Strike Act—Invalid Under NLRA.—Street Elec. Ry.and Motor Coach Employees v. Missouri, 5 B.C.L. Rev. 196 (1963), http://lawdigitalcommons.bc.edu/bclr/vol5/iss1/20BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEWprocedural arbitrability, there is language within those decisions to the effectthat the question of procedural arbitration should not be handled any dif-ferently from questions of substantive arbitrability. A party may not onlywish to preclude arbitration of certain matters, but also to preclude it whencertain procedures for presenting it are not followed. The test is the same.The court should determine whether the party seeking to bar arbitrationbecause of procedural non-compliance has succeeded in drafting a proceduralprovision which satisfies the explicitness test.PHILIP H. GRANDCHAMPLabor Law—Public Utility Anti-Strike Act—Invalid Under NLRA.—Street Elec. Ry. and Motor Coach Employees v. Missouri?—On November15, 1961, the State of Missouri brought suit to enjoin a threatened strikeby employees of the Kansas City Transit Co. which had resulted from animpasse in collective bargaining negotiations. Pursuant to the provisionsof the King-Thompson Act,2 the Governor of Missouri had seized the transitcompany on November 13,3 the day on which the strike had been called. Inso doing, the Governor proclaimed that all rules and regulations governingthe internal management and organization of the company and its dutiesand responsibilities were to remain in force and effect throughout the termof operation by the state.4 Upon seizure of the transit company by thestate, the strike became enjoinable under a provision of the act making itunlawful to use the strike weapon as a means of enforcing demands against autility after possession has been taken by the states From an adverse decisionof the Missouri Supreme Court upholding an injunction, the union appealed.In a unanimous decision, the Supreme Court of the United States HELD:that the Missouri statute authorizing seizure and providing for the issuanceof injunctions against strikes after seizure is in direct, conflict with federallegislation guaranteeing the right to strike against a public utility engaged ininterstate commerce and thus invalid under the supremacy clause of theConstitution.°1 374 U.S. 74 (1963).2 Mo. Rev. Stat. § 295.10-.210 (1959).3 Mo. Rev. Stat. 295.180(1) (1959) sets forth the power of the Governor when autility strike threatens. The Governor is empowered where a strike "threatens to impairthe operation of the utility so as to interfere with the public interest, health andwelfare . . . to take immediate possession of the plant, equipment or facility for useand operation by the state of Missouri in the public interest."4 Mo. Rev. Stat. 295.190 (1959) provides that "the governor is authorized toprescribe the necessary rules and regulations to carry out the provisions of this chapter."5 Mo. Rev. Stat. 295.200(1) (1959) provides that:It shall be unlawful for any person, employee or representative as defined in thischapter to call, incite, support or participate in any strike or concerted refusal towork for any utility or for the state after any plant, equipment or facility hasbeen taken over by the state under this chapter, as means of enforcing any de-mands against the utility or against the state.Mo. Rev. Stat. 295.200(6) (1959) provides that "The courts of this state shall havepower to enforce by injunction or other legal or equitable remedies any provision of thischapter or any rule or regulation prescribed by the governor hereunder."o U.S. Const. art. VI, cl. 2 provides that "This Constitution, and the Laws of the196CASE NOTESThe federal legislation determined to have preempted the field was theNational Labor Relations Act, sections 7 and 13 in particular. Section 7provides that "employees shall have the right to self-organization, to form,join or assist labor organizations, to bargain collectively through representa-tives of their own choosing, and to engage in other concerted activities forthe purpose of collective bargaining or other mutual aid or protection. . .Section 13 of the NLRA recites that except as otherwise provided in the act,nothing "shall be construed so as either to interfere with or impede ordiminish in any way the right to strike, or to affect the limitations orqualifications on that right."' Section 13 demonstrates a recognition on thepart of the framers of the NLRA that conferring the right to bargain col-lectively would produce little increase in bargaining strength without theexistence of the correlative right to strike as a means of inducing the employerto negotiate in reasonable and responsible terms.Prior to the principal case, a number of Supreme Court decisionsprompted the reasonable conclusion that the National Labor Relations Actreserved little power in the states to infringe or abridge the employee'sguaranteed right to strike for legitimate labor objectives. The Supreme Courtin Auto Workers Union v. O'Brien° citing several earlier cases,'° declared that"None of these sections can be read as permitting concurrent state regulationof peaceful strikes for higher wages. Congress occupied this field and closedit to state regulation."H Despite these decisions and this seemingly cleardeclaration, the limits of the field occupied by the federal act were still indoubt. All of the cases decided had involved the right of employees ofmanufacturing companies to strike. Still untested was the validity of public-utility anti-strike laws which made strikes against public utilities unlawful.12Such state measures were grounded upon the premise that the public health,safety and welfare required the continued operation of the public utilities.In the initial challenge to such a measure, the Supreme Court struckdown as conflicting with the federal law the Wisconsin Public Utility Anti-Strike Law," which by its terms, made it a misdemeanor for any group ofpublic utility employees to engage in a strike which would cause an interrup-tion of an essential public utility service." The Court in the Wisconsin BoardUnited States which shall be made in Pursuance thereof ; and all Treaties made, or whichshall be made, under the Authority of the United States, shall be the supreme Law ofthe Land; and the Judges in every State shall be bound thereby, any Thing in theConstitution or Laws of any. State to the Contrary notwithstanding."7 61 Stat. 140, 29 U.S.C. 157 (1958).8 61 Stat. 151, 29 U.S.C. 163 (1958).9 339 U.S. 454 (1950).19 Plankton Packing Co. v. Wisconsin Bd., 338 U.S. 953 (1950) ; LaCrosse Tel.Corp. v. Wisconsin Bd., 336 U.S. 18 (1949) ; 13ethlehem Steel Co. v. New York LaborBd., 330 U.S. 767 (1947) ; Hill v. Florida, 325 U.S. 538 (1945).11 Supra note 9, at 457.12 At the time of the O'Brien decision some 12 states had enacted Public UtilityPeace Acts in various forms including: Florida, Indiana, Massachusetts, Michigan,Minnesota, Missouri, Nebraska, New Jersey, Pennsylvania, Texas, Virginia, andWisconsin.18 Street Employees v. Wisconsin Employment Relations Bd., 340 U.S. 383 (1951).11 Wis. Stat. H 111.50 et seq. (1949).197BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEWcase found that in making it unlawful for employees to strike against publicutilities, the state had sought to deny entirely a federally guaranteed right."The Court stated that "It would be sufficient to state that the Wisconsin Act,in forbidding peaceful strikes for higher wages in industries covered by theFederal Act, has forbidden the exercise of the rights protected by § 7 of theFederal Act." 18In so holding the Wisconsin act invalid, the Court dismissed the conten-tion that in construing the federal act a distinction should be drawn betweenpublic utilities and national manufacturing organizations. The Court pointedout that when the NLRA was before Congress for enactment, a proposal forseparate treatment for public utilities was suggested and emphatically re-jected!? This led Mr. Justice Vinson, speaking for the majority to state that"Creation of a special classification for public utilities is for Congress, notfor this Court." 18With the aforementioned cases as precedent, the Supreme Court wasasked to rule upon the validity of the King-Thompson Act, Missouri's PublicUtility Anti-Strike Law. There were many distinguishing features between theMissouri statute in question and the Wisconsin law which had been declaredinvalid. While the statute in the Wisconsin Board case was a comprehensivecode for settling labor disputes between public utilities and their employees,the King-Thompson Act was much more limited in application. The provisionsof the Missouri statute were only to be invoked when a local emergency wasdeemed to exist." However, the Supreme Court foreshadowed its decision inthe principal case when, in the Wisconsin Board case, it indicated that even ifthe Wisconsin statute had been limited to situations involving only a localemergency, the measure would still conflict with the federal law." The Courtconcluded that "Congress has closed to state regulation the field of peacefulstrikes in industries affecting commerce." 21A second distinguishing aspect of the principal case was the seizure ofthe utility by the Governor of Missouri. The federal act specifically excludesfrom application of its provisions "any state or political subdivision thereof." 22The question arose in the principal case as to whether by virtue of theGovernor's seizure of the transit company, the utility had been convertedfrom a privately owned company into a state enterprise. If the utility weredetermined to have been transformed into a state institution as a result ofthe seizure, the exclusionary provision of the NLRA would permit infringe-ment of the employee's right to strike by the Missouri Public Utility Anti-Strike Law. Mr. Justice Stewart, in speaking for the majority, dismissed theform of the transformation for substance. He explained that:Whatever the status of the title to the property of Kansas City15 Supra note 13, at 394.H Id. at 398.17 Id. at 391-92.18 Id. at 392-93.10 Mo. Rev. Stat. 295.180 (1959) confers upon the Governor the authority todetermine when an emergency exists.20 Supra note 13, at 394.21 Ibid.22 61 Stat. 137, 29 U.S.C. § 152(2) & (3) (1958).198CASE NOTESTransit, Inc., acquired by the State as a result of the Governor'sexecutive order, the record shows that the State's involvement fellfar short of creating a state-owned and operated utility whose laborrelations are by definition excluded from the coverage of the NationalLabor Relations Act. The employees of the company did not becomeemployees of Missouri. Missouri did not pay their wages, and didnot direct or supervise their duties. No property of the companywas actually conveyed, transferred, or otherwise turned over to theState. Missouri did not participate in any way in the actual manage-ment of the company, and there was no change of any kind in theconduct of the company's business. 23This was not the first time that seizure had been used to avoid astrike. In Youngstown Skeet & Tube Co. v. Sawyer, 24 Mr. Justice Blackfirmly rejected seizure as a substitute for collective bargaining when he ex-plained that Congress, in enacting the Taft-Hartley Act, specifically refused toadd a provision authorizing government seizure in cases of emergency. Hereasoned that Congress had viewed seizure in the same light as compulsoryarbitration: an interference with the normal process of collective bargainingwhich is so essential to our economic system. 25 Traditionally, the framers ofour federal statutes dealing with labor relations have been guided by theprinciple that the solution of labor-management problems must rest upon afree economy and upon free collective bargaining. Seizure was especially in-compatible with the federal act in the principal case since it was wholly tokenin character, involving merely a paper transfer of possession of the utility andhaving as its sole consequence the prohibition of the strike.In declaring the King-Thompson Act in conflict with federal law, theSupreme Court has strongly demonstrated that "collective bargaining, withthe right to strike at its core, is the essence of the federal scheme." 2° Withits decision in the Missouri case, the Court has apparently closed the door onstate legislation curtailing the right of peaceful strikes for legitimate laborobjectives in the field of privately owned public utilities.The Court, in preserving the right to strike, has thus preserved the"voluntariness" in collective bargaining. The threat of strike, with its harmfulconsequences to both sides, gives efficacy to collective bargaining negotiations.The threat of harm makes bargaining meaningful since it motivates theparties to think in terms of a reasonable and responsible settlement. Removethe right to strike and the consequent threat of harm and the motivation tobargain responsibly no longer exists. An employer who knows that failure tobargain reasonably will not produce a strike, but, instead thereof, seizure andprohibition of the strike, has no incentive to contract on any terms but hisown. In short, nullification of the right to strike not only destroys thestrike but undermines the entire collective bargaining process which isdependent upon the strike weapon for its effectiveness. The Court by itsdecision has demonstrated that it will go to great lengths to protect the right23 Supra note 1, at 81.24 343 U.S. 579 (1952).25 Id. at 586.26 Supra note I, at 82.199BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEWof employees of privately owned companies to strike for legitimate laborobjectives, even where the consequences may be an interruption of a vitalutility service necessary to the public's health and welfare. However, thisdoes not preclude the state from limiting the right to strike of employees oftruly state-owned instrumentalities. NELSON G. RossLabor Law—Secondary Boycotts—Picketing Railroad Right-of-way.—Carrier Corp. v. NLRB.'—A complaint was filed by the National LaborRelations Board against Local 5895, United Steel Workers Union, whosemembers went on strike against Carrier Corporation on March 2, 1960. Picketlines had been established and maintained at numerous entrances to the plant,including an entrance to a railroad spur line on a right-of-way owned by theNew York Central Railroad adjacent to Carrier's property. The spur line wasused to provide rail service to Carrier and other companies. The railroadtracks were enclosed by a fence, part of which was a railroad gate throughwhich the trains entered and left the spur. The Railroad's operations were notdisturbed until March 11 when, pursuant to arrangements made by Carrier,the Railroad attempted to "spot" empty box cars at Carrier's siding and topick up loaded box cars. This operation required several passages through therailroad gate. During this time union pickets at the railroad gate forciblysought to prevent the Railroad from servicing Carrier Corporation. The TrialExaminer found the Union's actions to be in violation of Sections 8(b) (4) (i)and 8(b) (4) (ii) (B) of the National Labor Relations Act,2 but the Boardreversed this finding.3 The Court of Appeals for the Second Circuit HELD:picketing of the Railroad's right-of-way where the manifest objective was toprevent employees of the Railroad from handling goods of the struck employerin the course of regular delivery and removal operations was a violation of theNLRA. The Union was not furthering its legitimate objective of publicizingits dispute in picketing the Railroad, nor were the actions of the Union in-cidental to legitimate objectives of the dispute.A review of the history of the interpretation of section 8(b) (4) showsthat the cases can be grouped into those involving disputes at the premises ofthe primary employer and those taking place at the premises of a neutralemployer. In the situation of picketing the primary employer's premises manyactivities coming within the literal terms of the statute have been found to be1 311 F.2d 135 (2d Cir. 1962), cert. granted, 83 S. Ct. 1298 (1963).249 Stat. 449 (1935), as amended by 73 Stat. 519 (1959), 29 U.S.C. § 158(6) (4)(1958), as amended by Pub. L. 86-257, § 704(b). Section 8(b) (4) provides that it is anunfair labor practice for a union:(i) to engage in, or to induce or encourage any individual employed by anyperson . .. to engage in, a strike or a refusal in the course of his employment touse, manufacture, process, transport, or otherwise handle or work on any goods,articles, materials, or commodities or to perform any services; or (ii) to threaten,coerce, or restrain any person . . . where in either case an object thereof is• • •(B) forcing or requiring any person to cease using, selling, handling, transporting,or otherwise dealing in products of any other person... . Provided, That nothingcontained in this clause (B) shall be construed to make unlawful, where nototherwise unlawful, any primary strike or primary picketing..3 132 N.L.R.B. 127, 48 L.R.R.M. 1319 (1961).200

Labor Law—Public Utility Anti-Strike Act—Invalid Under NLRA.—Street Elec. Ry. and Motor Coach Employees v. Missouri

Abstract

Similar works

Full text

Available Versions

NELLCO Consortium Legal Scholarship Repository

Digital Commons @ Boston College Law School