Date Posted: 2006
Strikes (and, to a lesser extent, lockouts) are painful but necessary parts of private-sector American labor-management relations. Even if they weren't—even if sound public policy called for their eradication—we couldn't stop them. They are an inevitable byproduct of the conflicting interests and limited resources of organized workers and their employers. History shows that this is true even in times of warfare overseas or crisis at home: labor-management strife lessens at the beginning of a conflict and then bounces back. Now, however, we are confronted with warfare at home, a phenomenon that the United States has not had to deal with since the Civil War—before the rise of today's unprecedentedly large, complex, and interdependent economy and government.
And history is repeating itself again. After a lull at the beginning of the war with terrorists, work stoppages have returned to their pre-war levels. The overall rate of strike activity is substantially lower than it was during previous wars (it has been slowly declining, along with overall union membership in the private sector, for decades). Today's war, however, is being fought in part on American soil, and against enemies who operate worldwide, but whose attacks tend to be small and local, seeking advantage from the unpredictability and brutality of the damage they inflict rather than from its scale. Thus, even small, localized, and occasional work stoppages—not just the large-scale strikes that arguably affected the military-industrial complex and thus the war efforts in the past—have the potential to increase risks to critical infrastructure and public safety during the war on terror. In other words, persistent strike activity at current levels poses risks of public harm, albeit risks that are difficult to anticipate with specificity in the absence of much experience or available data. This justifies taking some reasonable precautions, including the proposal made in this Article.
By its very nature, a labor strike increases the vulnerability of that employer's operations to a terrorist attack. A strike is an act specifically designed to disrupt and weaken an employer's operations, for the (usually) perfectly lawful purpose of pressing for resolution of a dispute with management. A weakened organization or other entity is, of course, less capable of resisting and surviving exogenous shocks, whether they be commercial competition or terrorist attacks. In the United States, with its fully extended and endlessly interconnected critical infrastructure that touches everything from food processing to energy distribution to water quality, a strike in the wrong place at the wrong time that disrupts and weakens some part of that infrastructure could be decisive in the success or failure of a terrorist attack of the small, local sort described above, on such a weakened link in some infrastructural chain. Of course, none of this is to suggest that any union or its members (or any employer or its managers) would knowingly expose their fellow citizens or their property to a terrorist attack. To the contrary, experience to date suggests that union members are at least as patriotic and conscientious as Americans in general. In fact, the effectiveness of the proposal made in this Article is predicated in part on the assumption that neither workers nor their employers will knowingly contribute to the incidence or effectiveness of terrorist attacks. The concern addressed here is, rather, that innocent instigators or perpetuators of a work stoppage might unwittingly facilitate a successful terrorist attack or aggravate its effects.
Thus, the problem is determining how to regulate labor-management strife in a way that recognizes the inevitability (and benefits) of work stoppages and at the same time take steps to protect domestic critical infrastructure and the American people from opportunistic terrorists. This is not as hard as it sounds. The answer lies in the 1974 amendments to the National Labor Relations Act (NLRA). The essential feature of those amendments is a short, easily administered waiting period that has, over the past three decades, protected the health and safety of hospital patients and other health care recipients without unduly gumming up the traditional works of labor-management relations. If slightly modified and then extended from its current limited application in the health care industry to critical infrastructure more generally, the waiting period structure of the 1974 amendments should serve a broader range of critical enterprises quite well. Such a modest and balanced legislative fix for such an unpredictable and potentially important problem should be acceptable to both labor and management interests—especially when the alternative is to leave the public exposed to the risk of a devastating attack which, if were it to happen, would surely trigger a legislative-regulatory backlash against those who knew or should have known of the dangerous conditions they were creating—creating not by engaging in a work stoppage, but by failing to take a simple, low-cost precaution before doing so.
Part I of this Article lays out the unique threat posed by strikes (and, to a lesser extent, by lockouts) in the age of terror. Using American experience during the world wars, Part II shows that there is no way to prevent strikes from happening, foreclosing any argument for a fruitless ban on strikes or for some sort of nostalgic and fictional Greatest-Generation-inspired, "return to a patriotic war footing" regulation of labor-management relations. Part III reviews the generally applicable labor laws currently in force and shows that both experience and precedent limit their prospects for effective regulation of labor-management conflict in the age of terror, with the notable exception of the 1974 health care amendments to the NLRA. Part IV describes a proposed extension of the 1974 amendments to cover critical infrastructure more generally and explains how and why it would serve labor, management, and the American people in the age of terror. It would do so not by directly reducing strikes, lockouts, or the use of replacements (the three forms of risky work-stoppage-related behavior at which the proposed notice rule is directed), but rather by increasing transparency in the use of those weapons of labor-management conflict and thus increasing the opportunities for the parties, the government, and the public to share information and take appropriate precautions to avoid increased risks of effective terrorist attacks. The adoption of the rule proposed here would alter slightly the armaments of both labor and management, but in all likelihood it would do so without affecting the overall balance of power between them in any meaningful way.