At the risk of belaboring the obvious, and also of belaboring matters of
law on a list devoted primarily to matters of economics and to more general
economics related political concerns, Mr. O'Connor's glib reply to my
comment/query quoted in full below illustrates not merely the abstractly
"metalegal" (i.e., non real-life elements) of the (putatively) "legal"
question whether, as he said earlier, Taft-Hartley makes a general strike
in the U.S. "absolutely [sic] illegal" or devolves into an itself
politically and intellectually vacuous definitional kerfuffle about what a
"general [sic] strike" would mean in a milieu, as (regrettably) at present
in the U.S., in which, especially the private sector compared with the
1940s-through-1950s, unionization has dwindled radically.*
There are, to be (somewhat) sure, provisions state and federal law that
deal with public sector employee strikes and of federal law that address
"national emergency" related general strikes within particular industries
-- e.g., most notably, in the railroad and related transportation
industries -- and also some provisions in Taft-Hartley (but very far from
"absolutely" such) that deal with strikes which, depending on particular
context, are unlawful.
But it is ridiculous to cite the unfair labor practice provisions of
Taft-Hartley, which require the existence of a
union-management/collective-bargaining relationship to become applicable,
as if significant for a nationwide "general strike" as that term is now
most commonly understood. Indeed, as Sen. Taft (in this otherwise
comparatively narrow context) famously said in emphasizing what he, as
Taft-Hartley's principal drafter, emphasized what that law did _not_
provide for:
"We did not feel that we should put into the law, as a part of the collective
bargaining machinery, an ultimate resort to compulsory arbitration, or to
seizure, or to any other action. We feel that it would interfere with the
whole process of collective bargaining. If such a remedy is available as a
routine remedy, there will always be pressure to resort to it by whichever
party thinks it will receive better treatment through such a process than
it would receive in collective bargaining, and it will back out of
collective
bargaining. It will not make a bona-fide attempt to settle if it thinks
it will
receive a better deal under the final arbitration which may be provided."
"We have felt that perhaps in the case of a general strike, or in the case
of other serious strikes, after the termination of every possible effort to
resolve the dispute, the remedy might be an emergency act by Congress
for that particular purpose."
"I have had in mind drafting such a bill, giving power to seize the plants
and other necessary facilities, to seize the unions, their money, and their
treasury, and requisition trucks and other equipment; in fact, to do
everything that the British did in their general strike of 1926. But while
such a bill might be prepared, I should be unwilling to place such a law
on the books until we actually face such an emergency, and Congress
applies the remedy for the particular emergency only. Eighty days will
provide plenty of time within which to consider the possibility of what
should be done, and we believe very strongly that there should not be
anything in this law which prohibits finally the right to strike."
93 Cong.Rec. 3835-3836.
And of course it was this language that material influenced the U.S.
supreme court to invalidate Pres. Truman's attempted 1952 seizure of the
steel mills in his effort to avoid a nationwide strike by unionized steel
workers in the Youngstown case (343 U.S. 579).
As a matter of Real Politick, however, I do not doubt that state and
federal courts and other governmental bodies, possibly including the
federal executive branch, would devise means they characterize as (if)
"law" to try on an ad hoc basis to put down an actual general strike, or
numerous nationwide general strikes, in the (again: fantasitical?) event
that there were such; although even if so, trying to predict ("speculate"?
"guess"?) how such scenarios possibly would occur would be (and as noted) a
classic exercise in "meta" theorizing.
Anyway, insofar as Mr. O'Connor's rejoinder is concerned, if there were
actually a _general_ strike, which by (my) definition would include
non-union workers and other citizens, it would require fantasizing, not
meaningful analysis of law, to presume that presently existing NLRB
procedures even if facilitated by ancillary judicial procedures would be
even (practically) relevant much less "absolute[ly]" significant.
--------------------------------------------------------
* He said:
> [email protected] writes:
>
>> Apart from this being, at best, a theoretical metalegal" but not
>> real-life legal question and from the related fantastical factual
>> premise of the above ruminations (i.e., that it is not
>> culturally/politically unrealistic even in light of presently ongoing
>> circumstances to posit anything close to a general strike in the
>> U.S.), what provisions of the Taft-Hartley Act (whether as originally
>> enacted or as since amended) or, for that matter, anywhere else in
>> U.S. law make a "general strike" as that term is commonly understood
>> "absolutely illegal in the U.S."?
>
>
http://www.law.cornell.edu/uscode/uscode29/usc_sec_29_00000158----000-.html#FN-1REF
> ...
> It shall be an unfair labor practice for a labor organization or its
> agents—
> ...
> to engage in, or to induce or encourage any individual employed by
> any person engaged in commerce or in an industry affecting commerce
> to engage in, a strike or a refusal in the course of his employment to
> use, manufacture, process, transport, or otherwise handle or work on
> any goods, articles, materials, or commodities or to perform any services;
>
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