Now that New York City is in a midst of a transit strike that has caused immediate and palpable hardship to millions of its citizens, I think that we should tip our hats in the direction of Calvin Coolidge, who, as governor of Massachusetts said, “there is no right to strike against the public safety by anyone, anywhere, anytime.”
That’s more words at one time than Silent Cal was known for, but the soundness of his position should persuade us to forgive his loquacity. The transit workers have been given by state and federal law a chokehold over essential public services. The original quid pro quo was that they should be entitled to have union representation in exchange for a no strike pledge, which in this instance is honored only in the breach. It is time to rethink that basic structure and make a few fundamental changes in civic organization.
The first task is to rethink our approach to unions generally. As a traditional common lawyer, I think that unions should be governed by the same rules that apply to all voluntary associations, including those that govern the restraint of trade Applying those laws to this case is a simple exercise. The union has a monopoly position over the transit system. It therefore engages in a collective refusal to deal that is a classic antitrust wrong. The only reason that they are not liable under the Sherman Act is because of an explicit exemption for union activities contained in the Clayton Act. Repeal that exemption, and criminal and civil actions should follow as the night the day.
That approach, of course, goes far beyond this situation, and points to what is a long overdue social reform, which is the repeal of the mandatory collective bargaining provisions of the National Labor Relations Act, by which Congress gave its blessing to collective union action. In the short run, that is not going to happen, so one has to think of more focused approaches that hit at this particular strike without calling the entire body of labor law into question.
One obvious response is to use all the available fines against union leaders and members. If that does not work within 24 hours, then the Transit Authority should fire the striking workers and open up permanent positions to new employees until the rank and file comes to its senses.
In the long run, however, other structural reforms imperative. If there are unions, then let there be two, one for trains and the other for buses. Make it so that the contracts in question expire at different times. Make it illegal for the one union to engage in a sympathy strike with the other. And by all means make sure that no labor contract expires until after the Christmas holidays.
Even more fundamentally, open up the public roads to alternative forms of transportation: jitneys and private services should be allowed to go into business now. That means that the City has to repeal its archaic (and unconstitutional, I believe) rules that make it impossible for any rival carrier to operate in the vicinity of any city bus route. The easiest way to do this is to allow any private carrier to pick up and unload passengers at any regular bus stop. Other stop offs should be allowed as well if consistent with traffic safety.
One of the great dangers of unionization is that its influence is not confined to decisions that deal with wages and prices. In order to gain greater leverage in their own negotiations, unions actively support any legal rules that prohibit entry of rivals who threaten to undermine their bargaining position. Free entry is an indirect form of relief that reduces union monopoly power without having to take on the labor statutes that govern union-management relationships.
What should be done with public transit should also apply to public education and other areas. We have to recognize that monopoly power becomes intolerable when protected and sanctioned by legal rules. Our first priority should be to make sure that free entry and exit applies in all labor, service and product markets so that no union, or any other kind of organization, has the power now put into the hands of New York’s Transit Workers Union. Calvin Coolidge had it right. The progressive reformers had it wrong, and now New York City is paying the price for their intellectual confusion and political mistakes.