On Friday, December 2, President Joe Biden signed a joint resolution from Congress binding railroad workers to a September tentative agreement with the railroad corporations — a contract that a majority of railworkers had recently rejected. Joined by labor secretary Marty Walsh and transportation secretary Pete Buttigieg, Biden declared, “We’ve avoided a catastrophic rail strike.” The reason Congress could intervene in the railroad labor dispute is that a century-old law — the Railway Labor Act of 1926 — explicitly provides for the possibility of a strike while simultaneously limiting its disruptive power.
Understanding this contradiction — allowing for strikes but within narrow, government-sanctioned confines — requires a review of the history of the right to strike and its regulation in what came to be called “emergency disputes.” Whereas the US legal system looked askance at workers’ right to walkout for much of the Gilded Age and Progressive Era, the effective legalization of trade unions during the New Deal transformed the relationship between workers and bosses in the United States. If labor unions were to be legalized, US politicians reasoned, their negotiations with employers had to be regulated in those workplaces where, in the words of the 1947 Taft-Hartley Act, interruption of service “imperils the public health and safety.”
The Railway Labor Act is the oldest federal statute providing for such regulation — and proved to be one of the most decisive forces in the recent showdown between railroad workers and employers.
When Strikes Were Illegal
The precedent for peacetime intervention in the railroad industry’s labor disputes dates to the efforts — by corporations as well as the federal government — to suppress the great railroad strikes of 1877 and 1894, which erupted after sweeping cuts to workers’ wages during the business recessions of that era.
Beginning in the late nineteenth century, employers repeatedly turned to the courts to issue injunctions against trade unions engaged in work stoppages. Owners and managers argued that strikes, especially those national in scope, violated the commerce clause of the US Constitution — because strikes interfered with the free flow of goods, labor, and capital across state boundaries — and, eventually, the Sherman Antitrust Act of 1890, because unions conspired to set wages.
The most famous injunction of the Gilded Age came in 1894, when the federal government sent the US Army to Chicago to enforce a legal decree against the American Railway Union and the strike, led by Eugene V. Debs, that had crippled commerce throughout the country. Debs was barred from even communicating with members of his union. When he violated the edict, he was jailed for six months.
For the next forty years, anti-union employers found the courts a willing partner in suppressing strikes and other forms of working-class collective action. In 1908, the Supreme Court cemented the federal government’s capacity to undercut organized labor by ruling in the famous “Danbury Hatters” case that sympathy strikes and union-organized boycotts violated the Sherman Antitrust Act.