On occasion, I use this space to provide our readers with insight into and further explanations of issues I discuss in private interviews with reporters. In this case, I want to explain an answer I gave to a question from CBS News's John Dickerson just a few days ago:
By the way, if asked, I also would have told Dickerson that the White House will not intervene in the SAG-AFTRA and Writers Guild strikes against the large corporate Hollywood studios, or a potential UAW strike against the big three automakers.
Admittedly, these aren't especially courageous predictions. Presidents in the modern era very rarely intervene in private-sector labor disputes. When I hear "intervene," I understand it to mean the President taking some governmental action that would change the course of a negotiation, strike, or lockout. As I said in the above clip, private-sector collective bargaining is a system for private dispute resolution between private parties. The government doesn't and typically shouldn't have a role, and that includes presidents. Presidents have largely respected that collective bargaining is private activity.
Presidents have engaged in many other activities that should not be considered "intervention." The White House regularly monitors progress in big negotiations in important industries or those involving large numbers of workers. I performed that function when I worked for President Joe Biden. They often publicly or privately encourage the parties to reach a resolution as quickly as possible. They keep members of Congress and the press updated about negotiations (again, a role I played). In a very few especially important cases, they dispatch Cabinet secretaries or others to help mediate negotiations. Cabinet secretaries have no special governmental power when mediating negotiations, but their stature, perceived neutrality, and political skills can allow them to succeed.
The difference between these activities and "intervention" is that they are intended to facilitate and strengthen collective bargaining, or manage its side effects, rather than stopping or controlling it. The parties retain control over their negotiations. For example, President Barack Obama dispatched Labor Secretary Tom Perez to help bring the negotiations between the International Longshore Workers Union and the Pacific Maritime Association to a successful conclusion in 2015 and the parties reached an agreement. President Biden involved Secretaries Pete Buttigieg, Marty Walsh, and Tom Vilsack in the 2022-23 negotiations between those same parties, and the parties again reached an agreement. These efforts don't always succeed. In one swing-and-a-miss in 1995, President Bill Clinton invited striking major league baseball players and team owners to the White House to encourage settlement of the longest baseball strike in history. His gambit failed. The negotiators were not the least bit impressed by their surroundings and made no progress.
President Biden has taken a similar approach. Press reports indicate that he has assigned senior White House economic advisor Gene Sperling to work with the UAW and Stellantis, Ford, and General Motors to find solutions in their newly started negotiations. He has also leaned a little further forward, on occasion, but again in defense of collective bargaining. His most direct statement expressed concern about Kellogg’s plans to permanently replace striking workers from the Bakery, Confectionery, Tobacco Workers and Grain Millers International during their negotiations. His rationale? Permanently replacing striking workers "undermines the critical role collective bargaining plays in providing workers a voice and the opportunity to improve their lives while contributing fully to their employer’s success." Notably, he did not threaten any particular action other than continued support for legislation banning the practice. Nonetheless, few corporations (or their shareholder) enjoy public criticism from a president. Kellogg's backed off its threat.
My sense is that questions about President Biden intervening in the Teamsters-UPS negotiations and other current labor disputes are a hangover from his role in the contentious freight rail negotiations in 2022. But rail and airline labor relations can be an exception to the general "presidents-don't-intervene" rule. That's because of the Railway Labor Act, which regulates labor relations in those industries and delegates an interventionist role to the President in selected disputes. Presidents are authorized, in certain circumstances, to stand up Presidential Emergency Boards that engage in non-binding arbitration of the negotiations (i.e.,. they suggest an agreement the parties can accept or reject). In other words, the RLA inserts presidents into some rail and airline disputes, including last year's national freight rail dispute. Undeniably, Biden went further than his statutorily defined role. He rallied Congress to stop any work stoppage when the RLA process did not produce an agreement all of the involved unions could ratify. It was a controversial act, no doubt, and it certainly constituted presidential intervention.
Yet, the freight rail negotiations did not establish a precedent for the Teamsters-UPS, UAW-Big Three, SAG-AFTRA and Writers Guild-AMPTP negotiations, or almost all others. The law helps to explain why this is true. The Labor Management Relations Act, which regulates private-sector labor relations in most industries other than rail and airlines, gives presidents a tool to stop work stoppages. Presidents may petition a U.S. district court for an injunction that blocks or ends a strike or lockout. However, the bar for securing an injunction is extremely high. An injunction is available only if the strike or lock-out affects "an entire industry or a substantial part thereof engaged in [interstate or international] trade, commerce, transportation, transmission, or communication," or the production of goods for commerce (emphasis added). Also, the court must find that the strike or lockout would "imperil the national health or safety."
Only a tiny handful of industries affect the economy deeply and broadly enough to satisfy these standards. As I said in an earlier post: "We have only one freight rail system in the U.S. We have only one system of ports on the West Coast . . . . By contrast, UPS has direct competitors, like the U.S. Postal Service, FedEx, Amazon, and others. Some share of the goods that might have been shipped through UPS’s system can be shipped by those competitors." It is highly unlikely that a Teamsters-UPS work stoppage could ever meet this legal standard. UPS is the largest player in the package shipping industry, but not a monopoly. Package shipping would continue in the U.S. during a UPS work stoppage, albeit less efficiently and likely at a much higher cost to consumers. The Hollywood strikes do not meet the standard because the loss of television series and movies will not "imperil the national health or safety," even though a substantial part of the industry is involved.
The industries in which courts granted injunctions to presidents in the past illustrate this point. In 2002, President Bush secured an injunction to block a West Coast ports strike. In 1962, President Kennedy sought an injunction to stop an East Coast and Gulf Coast longshore strike. In 1978, President Carter obtained an injunction to end a coal industry strike at a time when coal was one of a few top energy sources for the country. The national freight rail system in 2022 resembled these industries. The other industries where strikes are already underway or threatened do not.
The law is not the only barrier. President Biden is the self-proclaimed most pro-union president in U.S. history. That's not mere rhetoric. He believes it and works hard to make it true. Yet, the labor movement was outraged in 2002 when President Bush sought an injunction to end the West Coast ports strike. That event still resonates in the halls of labor. Although most labor leaders remained quiet, President Biden certainly heard the criticisms leveled at him from some trade unionists that he led Congress to block the freight rail strike last year. The President understands that strikes are a fundamental issue for the labor movement. Strikes are one of workers' most potent tools, as I discussed in another earlier post. Taking away the right to strike usually significantly weakens' workers' bargaining power. President Biden wants to strengthen workers' and unions' bargaining power. It is a central pillar of his economic strategy. He would not choose to do anything that would undermine that strategy, and workers, except in the most dire circumstances.
In these circumstances, I don't think he will do it. That's why I gave the answer I gave.
