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The Role of Military Forces in Public Sector Labor Relations

Author(s): James B. Jacobs

Source: Industrial and Labor Relations Review, Vol. 35, No. 2 (Jan., 1982), pp. 163-180
Published by: Cornell University, School of Industrial & Labor Relations
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This articleexamines theuse of militaryforcesas replacementsin public

sectorstrikes,a practiceemployedin over fortycases since PresidentNixon
establishedthemodern-dayprecedentbydeployingtroopsin the1970postal
strike.The authorshows that,despitethedubious legalityofNixon's action,
legal constraintson the Presidentand particularlyon thegovernorsin this
contextare veryweak. He argues thatpolitical and philosophical qualms
about breakingstrikeswithmilitaryreplacementsmay have morevitalityas
constraints,but theyare subjectto erosioniftheappropriaterole ofmilitary
forcesin public sectorlabor relationsdoes not become a subject of public
debate. Following an appraisal of themajor policy options,theauthorcon-
cludes that the use of troopsas strikereplacementsis primarilya political
ratherthan legal problem.

HE interventionof militaryforcesin tentionof scholarsand practitionersin col-

labor-managementdisputes is highly lectivebargaining.This practiceraisesim-
controversialin a democracy committed portant policy questions concerning the
to solving labor-management disputes suppressionof public sectorstrikesand the
throughcollectivebargainingmechanisms proper role of militaryforcesin civilian
and to keeping themilitaryout ofdomestic governance.
politics. It is thereforequite remarkable
thatthe repeateduse in recentyearsof Na-
tional Guard forces,and in two cases of Historyof MilitaryForces'
federal troops, to replace strikingpublic Replacement Role
employeeshas attractedso little attention.
There does not appear to be a single schol- Despite thecontroversy it oftenprovoked,
arlyarticleon thesubjectin eitherthelabor militaryinterventionin labor conflictswas
relations or civil-militaryrelations litera- common from1875to 1925.1Militaryforces,
tures,despitea substantialnumberof such usually statemilitia,werefrequentlycalled
deploymentssince the 1970 postal strike. upon during that period to preservelaw
This articleis intendedto call theuse of and order in violent strikesituations. In
militaryforcesas replacementsto the at- theorythe militia's role was to keep peace,
but in fact the militaryoften used force,
*The author is a professorof law at Cornell Univer-
sity. He gratefully acknowledges Ronald Kuby's 'FosterRhea Dulles, Labor in America,3d ed. (New
researchassistance. York: Thomas Y. Crowell, 1966).

Industrialand Labor Relations Review, Vol. 35, No. 2 (January1982). ? 1982 by Cornell University.
0019-7939/82/3502-0163$01 .00


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sometimeswantonly,to breakstrikes.2 Dur- ployees. Blackman's historyof presidential

ing the greatrailroad strikeof 1877,forex- seizurestracesthefirstsuch interventionto
ample, 45,000militiamenwerecalled up in June 1863,when, in responseto a strikeby
elevenstatesand morethan100strikers were longshoremen,thegovernmentused federal
killed and severalhundredwere wounded. troops and civilians to load and unload
In fact,between 1877 and 1892 at least 30 vesselsat New York piers.6During a 1917-
percentof the militia's active dutyassign- 18 loggers'strikethatinterrupted thesupply
ments involved strikes.3And in a particu- of spruce wood for army aircraft,federal
larly notorious case, President Cleveland soldiers were assigned to logging camps
sent federal troops to "preserveorder" in where, under contractwith private firms,
Pullman, Illinois in 1894 despite the pro- they constructedand operated a logging
tests of Governor Altgeld, who argued railroadand a largesawmill.Twice in 1919,
against the use of troops. troops loaded, unloaded, and moved mili-
The role of the military,particularlythe tarycargo ships and troop ships. In 1941,
National Guard,4 as an industrial police the Navy Departmentrecruitedcivilians to
forcepersistedinto the twentiethcentury, replace machinists whose wildcat strike
but strikeduty subsided by the late 1920s disruptedwork at ship-repairyardsin San
and all but disappearedafterWorldWar 1.J5 Francisco. In August 1944, a few hundred
In recentyearstheNational Guard has been sailors and soldierscleaned out debrisfrom
called upon forsuch dutyonly in unusually government vessels in Bethlehem Steel
violentsituations,such as the 1974truckers' Corporation's struck ship-repairyards in
strike,during which troopswere called up New Jerseyand New York. On severaloc-
in Pennsylvania, Ohio, Minnesota, Ten- casions in theensuing thirty years,themili-
nessee, Kentucky, Iowa, West Virginia, tary,directlyor with civilians, was called
Illinois, Maryland,Indiana, and Alabama. upon to load and unload strike-bound ships
A less common formof militaryinvolve- and to assume clerical functionsrelatedto
ment in labor conflictthroughoutmost of the movementof militarycargo. All these
our historyis the deploymentof military deploymentsappear to have been linked to
personnel as replacementsforstrikingem- militaryor national defenseactivities.7
Until 1970troopshad not been used tore-
2Richard Hofstadterand Michael Wallace, Ameri-
place striking public employees, except
can Violence: A DocumentaryHistory (New York: for one instance-the 1919 Boston police
Knopf, 1970),pp. 109- 86. strike,during which 4,500 membersof the
'William Riker, Soldiers of the States: The Role of State Guard were called upon to maintain
the National Guard in AmericanDemocracy(Wash- orderin the face of looting and threatened
ington,D.C.: Public AffairsPress, 1957),p. 55.
4The National Guard, as the state militia were mob violence.The Guard's capacitytocarry
called afterthe 1870s, is a militaryforceunder dual out the police function effectively broke
federaland state control. See U.S. Const. art. I, ? 8, the strikeand few of the strikerswere re-
cl. 18. The governorof each statehas constitutional hired.It is said thattheGuard's successwas
and legislative authorityto call out the state's Na- responsible for catapulting Calvin Coo-
tional Guard in a varietyof emergencycircumstances.
Since the beginning of the twentiethcentury,how- lidge, then the Governorof Massachusetts,
ever,the National Guard has increasinglycome under into the vice-presidency.8
federal domination. Congress has organized the
National Guard as a reservecomponentof thefederal 6The informationin this and the succeedingpara-
armed forces. Under current Defense Department graph is from John L. Blackman, Jr., Presidential
planning, the National Guard is a crucial linchpin Seizurein Labor Disputes (Cambridge,Mass: Harvard
in a "total force concept" that requires American UniversityPress, 1967), pp. 294-98.
armed forcesto be ready to fightseveralwars at the 7Whenthe militarywas used, the scope of the inter-
same time. See Colonel William Shaw, "The Inter- ventionwas restricted.In theNew York harborstrikes,
relationshipof the United StatesArmyand National for example, the militarymoved only militarypas-
Guard," Military Law Review, Vol. 31, (January sengers and supplies, "leaving the private cargoes
1966),pp. 39- 84; and Melvin L. Wulf,The National and passengers under the strike bans." Blackman,
Guard and the Constitution(New York: American PresidentialSeizure in Labor Disputes, p. 228.
Civil LibertiesUnion, 1971), pp. 1-3. 8Francis Russell, A City in Terror: 1919- The
5Riker,Soldiers of the States,p. 65. Boston Police Strike(New York: Viking Press, 1975).

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Table 1. MilitaryCall-Ups in Labor Disputes,

January1970-August 1981.

Dates Place on Strike

1970: Mar. 24-30 New York City Postal Workers

1971:June 25 Nashua, New Hampshire Firefighters
1973:Jan. 3 Milwaukee, Wisconsin City Employees
1973:July6-12 Puerto Rico Firefighters
1973: Sept. 1-3 Texas TrafficSafety
1973: Sept. 12-13 Texas Prison Guards
1973: Nov. 5-10 Milwaukee, Wisconsin Firefighters
1974: Mar. 12-13 Warm Springs,Montana Mental Health
1974: Mar. 18-21 Galen-Boulder,Montana Hospital Workers
1974:July 12-18 Lucasville, Ohio Prison Guards
1974:July 16-17 Cranston,Rhode Island Prison Guards
1974:July 18-19 Lima, Ohio Mental Health
1974: Nov. 10-12 Cranston,Rhode Island Mental Health
1974: Nov. 27 San Juan, Puerto Rico WaterWorks Employees
1975: May 13 Lucasville, Ohio Prison Guards
1975: Aug. 13-Sept.8 Pine Bluff,Arkansas Firefighters
1975: Oct. 3-9 Kansas City,Missouri Firefighters
1976: Nov. 11-16 Warm Springs,Montana Mental Health
1976: Nov. 12-19 Springfield,Illinois Public Employees
1977:July3-22 State,Wisconsin Prison Guards
1977: Sept. 2-12 St. Croix, Virgin Islands Prison Guards
1978: Mar. 12-13 Rhode Island State Employees
1978:July 1 Memphis,Tennessee Firefighters
1978:July 14 Louisville, Kentucky Firefighters
1978: Aug. 17 Memphis,Tennessee Police
1978: Sept. 6 Mach, New Hampshire Firefighters
1978: Sept. 14 Wichita,Kansas Firefighters
1978: Nov. 18-23 St. BernardParish, Louisiana Firefighters
1978: Dec. 1-6 Huntsville,Alabama Police &cFirefighters
1979: Feb. 5-Mar. 14 Montana State Employees
1979: Feb. 1-10,and
Feb. 16-Mar.6 New Orleans, Louisiana Police
1979: Apr. 18-May7 New York State Employees
1979:June 27-29 Cape Girardeau,Missouri Firefighters
1979: May 2-4 Birmingham,Alabama Police &cFirefighters
1979: Sept. 12-20 Cranston,Rhode Island Mental Health
1979: Oct. 21-Nov. 16 Hawaii State Employees
1979-80:Dec. 27-Jan.3 Kansas City,Missouri Firefighters
1980: Mar. 18-23 Kansas City,Missouri Firefighters
1980: May 8-16 Nashville,Tennessee Firefighters
1980:July 14-25 Mobile, Alabama Firefighters
1980: Nov. 24-26 Marion, Indiana Firefighters
1980: Dec. 6-7 Boston, Massachusetts CommuterTransit
1981: Mar. 1-2 Milwaukee, Wisconsin Firefighters
1981: Mar. 20-21 Milwaukee, Wisconsin Firefighters
1981:June 23-25 Concord-Manchester, New Hampshire State Employees
1981:July 10-14 Boston, otherlocations,Massachusetts Mental Health
1981:August Nationwide Air TrafficControllers

Source: National Guard Bureau, Washington,D.C.

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For the most part, however, until the ever,National Guardsmenhave been called
1960spublic employeeswerenot unionized upon at thestateand local levelsto workas
and did not strike.Those few public em- firefighters,policemen, prison guards,and
ployee strikesthatdid occur apparentlydid mental health attendants, among other
not affectcriticalgovernmentfunctions,or jobs. While it may be prematureto speak of
at least not severelyenough to provokethe a trend,it is worthnoting(in Table 2) that
call-up of militarypersonnel as replace- the number of National Guard interven-
ments. Perhaps important political and tions increased fromseventeenin the six-
philosophical inhibitions preventedpoli- year period 1970- 75 to twenty-five in the
ticiansfromturningto themilitarytoassure five-yearperiod 1976- 80. The largestde-
thecontinuationof struckpublic service. ploymentwas in April 1979whenNew York
From 1970to themiddleof 1981,however, State GovernorHugh Carey activatedover
militaryforceshave been used as replace- 12,000Armyand Air National Guardsmen
ments for strikingpublic employees on to replace strikingstateprison guards.9
forty-six occasions (see Tables 1 and 2). The
precedent-settingaction was the postal Legal Constraints
strikein March 1970 during which Presi-
We need to ask when a governor(or a
dent Nixon sent30,000regularand reserve
Presidentin thecase of strikingfederalem-
federal troops and National Guardsmen
ployees) can and should call up troops to
to replacestrikingpostal employeesin New
replace strikingpublic employees. What
York City. The strikerscapitulated just
twodaysafterthetroopsassumedthetaskof justifies the use of militaryforces?Must
therebe a serious threatto public health
sortingand deliveringmail.
and safety?An imminentcatastrophe?Or
are we only dealing with an executive
Table 2. Yearly Summary of Recent "judgment call?" To answer these ques-
National Guard Call-Ups in Public Sector tions requires,in part, an examination of
Labor Disputes. federaland state law, particularlyconsti-
tutionsand statutes.
Year Number All but two instancesof militaryperson-
nel replacing public employeessince 1970
1970 1 involved state or local employees.Federal
1971 1 troops were used only in the 1970 postal
1972 0 strikeand, to a limited extent,in the 1981
1973 4 air traffic IOThis analysis
1974 7 begins, nevertheless,with the postal strike
1975 3 because PresidentNixon's use of military
1976 2 personnel in that situation set the prece-
1977 2
1978 9 9LynnZimmerand James B. Jacobs,"Challenging
1979 8 the Taylor Law: New York Prison Guards on Strike,"
Industrialand Labor Relations Review,Vol. 34, No. 4
1980 5
(July1981), pp. 531-44.
1981a 5 '0By the end of the firstweek of the controllers'
strike,521 militaryair trafficcontrollerswere filling
aThis covers the period through August 1981, in forstrikers at airportsaround thecountry.The De-
includingtheuse of federaltroopsduringtheair traffic fenseDepartmentauthorizedthe use of 2,800military
controllers'strike. personnel.These replacementsare expected to be on
duty from six to twenty-onemonths, until civilian
replacements can be trained. President Reagan's
The postal strikeand therecentair traffic authorityto use militaryair traffic controllerscomes
controllers' strikeare the only occasions fromThe Federal Aviation Act of 1958,49 U.S.C. ?
1343(i) (1976), which providesfortheFederalAviation
during recent years when federal troops AgencyAdministrator to "use ... theavailable service,
have served as replacementsfor striking equipment, personnel,and facilitiesof othercivilian
public employees.As Table 1 shows, how- or militaryagencies ....

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dent forsubsequent gubernatorialactions. two days, the union capitulated and the
The factthatNixon's action was not seen as strikersreturnedto work.The domesticuse
significantby scholars at the time is par- of troops to break the postal strikeenjoyed
tially explained by its having been over- widespread popular support, even in the
shadowed by the Vietnam War and other liberal press,"4in contrastto the furorthat
controversialuses of the armed forces.In developedover thesecretbombingsand the
hindsight,however, the postal strikewas invasion of Cambodia at about this time.
crucial; since then-in just a decade-mili- Perhaps this support explains why, in
tarydeploymentsfor public sectorstrikes contrast to massive legal literature on
have become unexceptional and are taken the President's actions in Southeast Asia,
for granted. If one views the 1970 postal not a single scholarlyarticleon the postal
strikedeploymentas an extraordinary event strikedeploymenteverappeared in thelaw
in Americanhistory, basedas itwas on ques- reviews.
tionable legal authority,the whole issue Despite thelack of objectionsat thetime,
of using troops in thisway becomes prob- presidentialdeploymentof troopsdomesti-
lematic. cally raises profound questions about the
The 1970 Postal Strike proper role of the armed forcesin a con-
On March 19, 1970, thousandsof postal stitutionalsystemand about the respective
workersaround thecountrywalkedofftheir powers of the executive and legislative
jobs over a salarydispute."1The strikewas branchesof government.The Constitution
most severein New York City,wheremail does not specificallyprovide for domestic
servicecame to a virtual halt. Afteran in- deployment of troops, but to the extent
junction failed to bringthestrikersback to that the textof theConstitutiondeals with
work,'2PresidentNixon declareda national this power, it entrustsit to the Congress,
emergencyand sent 2500 regular military not the President. Congress is given the
personnel,15,300Army,Navy and Marine power to organize the militia"5and to pro-
reservists,and 12,000New York StateArmy vide forcalling it forthto executethelaws.16
and Air National Guardsmento New York Congressional control over the regular
City to sortand deliverthe mail.13Within armedforcesis inferablefromthepowersto

1"Work stoppages occurred nationwide-Phila-

powersvestedin mebytheConstitution andthelawsofthe
delphia, San Francisco,Chicago, Denver,Pittsburgh, UnitedStatesandmoreparticularly. . . Section673ofTi-
Cleveland-affecting about half of all mail service tle10oftheUnitedStatesCode,do hereby declarea stateof
in the country.Hardest hit were banks, brokerage nationalemergency,
theSecretary ofDefense .
houses, insurance companies, publishers, public tousesuchoftheArmedForces. . . [and]anyorall ofthe
utilities,creditagencies,and governmentagencies. . . . ArmyNationalGuardandoftheAirNationalGuard
'2Two federaljudges issued injunctions ordering
the president of Branch 36 of the National Letter
Pres. Proc. No. 3972, 3 C.F.R. 473 (1970) (1966- 1970
Carriers Union to direct the carriersto go back to
work. The presidentcomplied, but the rank-and-file
14The administrationeven had the support of the
did not. The Assistant U.S. Attorneypressing the
New York Times. On theseconddayof thewalkoutan
government'scase did not seek criminalpunishment
editorial defined the work stoppage as an affrontby
of the strikers,noting that"[r]epressivemeasureswill those "bent on paralyzing the essential functionsof
not get the mail delivered."New York Times, March government."New York Times, March20, 1970,p. 46.
20, 1970, p. 40. The governmentdid, however,seek A later editorial stated: "More than the mail . . . the
finesagainst the union and sevenof its officers.New futureof a governmentbased on law is in the bal-
York Times, March 21, 1970, p. 12. ance," New York Times, March 22, 1970,p. 16. Two
13President Nixon's Declaration of National Emer- days later the President used the same words. On
gencystated: March 23rd,the Times editorialized:"[t]he contagion
[A]sa resultof[thepostalemployees']unlawful workstop- spreads fromghettoto campus to agencies of govern-
page theperformance ofcriticalgovernment and private ment, sweeping aside all respectforlaw. The mood
functions. . . has whollyceased or is seriouslyim- of the postal rebelswas well reflectedin thiscity.'We
peded.. . . The continuance ofsuchworkstoppages... have them by the throat-It's Now or Never.' The
will impairthe abilityof thisnationto carryout its 'them,' of course, is the Governmentof the United
obligationsabroad,andwillcrippleorhalttheofficial and
commercial whichis essential
intercourse totheconduct of States." New York Times, March 23, 1970,p. 40.
itsdomestic business. . . [T]herefore,
I, RichardNixon, 15U.S.Const. art. I, ? 8, cl. 16.
PresidentoftheUnitedStatesofAmerica, pursuantto the 161., cl. 15.

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"raise and support"armiesand to maintain tional scholarswould accept theidea thata

the navy,'7and to "make rules forthegov- Presidentcan use troopswhen thesurvival
ernmentand regulation of the land and of the countryis at stake. There is little
naval forces.""8When Congress uses its doubt thattheExecutive,actingon his own
authorityto regulatetheuse of themilitary, authority,can mobilize thearmedforcesto
the Presidentmust conformhis actions to repel a sudden attackbya foreignenemyor
the termsof such regulation.'9The Execu- to quell a domesticinsurrection.This has
tive'spower to deploy troopsdomestically, been referredto as a raison d'etat,but it is
ifany,mustcome eitherfromcongressional almost always raised only in hypothetical
authorizationor fromthe President'sown discussionsof national security.
constitutional powers as Commander in Whatever the President's inherent au-
Chief,20as executorof the laws,21 or from thorityto preventthe nation's militaryde-
whatever inherent authorityvests in the feator the demise of the republic,a postal
Presidentas Chief Executive.22 strikeis anothermatter.Disruptionsofmail
Inherentpowers. PresidentNixon's dec- delivery cause inconvenience,even hard-
larationthatthepostal strikewas a national ship, to be sure; but other countrieshave
emergencymay have been an attemptto weathered postal strikeswithout collapse
justifythe troopdeploymenton thebasis of (Canada, forexample24).In any case, at the
inherentpresidentialpower to act in times time of the emergencyproclamation the
of grave national crisis.23Most constitu- strikehad achieved only partial success in
most cities around the country.Postal of-
7Id., cls. 12 and 13. ficialshad notyethad an opportunityto see
"Id., cl. 14. how well servicescould be maintainedwith
"9Note,"Honored in the Breach: PresidentialAu- supervisorypersonnel and other replace-
thorityto ExecutetheLaws withMilitaryForce," Yale
Law Journal, Vol. 83, No. 1 (November 1973), pp.
ments. Certain agencies, like Selective
137- 38. Legislative limitations on executiveuse of Serviceand welfare,had contingencyplans
the militaryin domesticaffairsgo back to 1792,when they did not even get the opportunityto
Congress refused to grant the President the power test.25
to execute the laws withmilitaryforce.David E. Eng-
dahl, "The New Civil DisturbanceRegulations: The
Threat of MilitaryIntervention,"Indiana Law Jour- troops in civil disorders.The regulationsincorporate
nal, Vol. 49, No. 4 (Summer 1974), p. 584. The the theorythat the Presidenthas an inherent,con-
Civil War and Reconstructionstatutesthat allowed stitutionalrightto use troops in a varietyof vaguely
domestic military deployments, 10 U.S.C. ?? 331, defineddomesticcrises.See "Employmentof Military
332, and 333 (1976), restrictexecutiveuse of thearmed Resources in the Event of Civil Disturbances," 32
forcesto specific types of emergencysituations.See C.F.R. ? 215.4(c) (1) (i) 8c(ii) (1980).
text accompanying notes 37-39, infra.In the Posse 24Afterforty-twodays, the 1981 Canadian postal
Comitatus Act of 1878, 18 U.S.C. ? 1385 (1976), Con- strike was ended by a negotiated settlement.The
gress specificallyprohibited the use of the army to Canadian governmentdid not findit necessaryto take
executethelaws, unlessexpresslyprovidedforin other legal action against the strikers,nor to relyon extra-
legislation. See text accompanying notes 33- 40, ordinarymeasuresto restoremail delivery.
infra. 25PresidentNixon did not elaborateon his conclu-
20U.S. Const. art. II, ? 2 cl. 1 provides"[t]he Presi- sion thatthepostal strikehad createda national emer-
dent shall be Commander in Chief of the Armyand gency.However,in his televisionaddressto thenation
Navy of the United States ...." he stated:
2lId., ? 3 charges the Presidentto "take care that
the laws be faithfullyexecuted." The United Statespostal systemis a vitalelementof our
22Id.,? 1 provides "[t]he executivepower shall be entirecommunicationssystem.The poor depend heavily
upon it for medical services and also for Government
vestedin a Presidentof the UnitedStatesofAmerica."
assistance.Veteransdepend upon it fortheircompensation
23PresidentNixon never explicitly claimed reli- checks.The elderlydepend upon it fortheirSocial Security
ance on inherent powers to justifydeploymentof checks.
troops in the postal strike;his emergencyproclama- The nation's business is dependentupon it as a way to
tion and executiveorderwere vague and ambiguous. stay in business so theycan meet theirpayrolls.And our
(See footnote13 above.) There is no doubt, however, menin Vietnamdependon mail calls as theironlylinkwith
theirloved ones.
that PresidentNixon had an expansive view of in-
herentpowers, particularlywith respectto the mili- New York Times, March 24, 1970, p. 16. One has to
tary. In 1972, the Nixon Administrationpromul- wonder how difficultit would actually be to find
gated new regulationsconcerningthe use of federal alternativesto thepostal serviceforeach of thesebene-

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It is possible to speculate thatPresident of constitutionalgovernmentprecludesthe

Nixon's concernswent beyond the disrup- use of inherentexecutivepower in all but
tion of mail service.He spoke of the "sur- the most compelling circumstances.
vival of a governmentbased upon law."26 Commander in Chief. The President's
His argument,in effect,was that the sov- power as Commander in Chief is a war
ereignty of governmentitself was chal- power and does not apply to internalaf-
lengedbythepostalworkers'illegal strike.27 fairs.28As the Court noted in Youngstown
Perhaps the Presidentand his advisorssaw Sheet and Tube Co. v. Sawyer, "[e]ven
the strike,or at leastwantedto portrayit,as though 'theaterof war' be an expanding
a challenge to the national administration concept, we cannot, with faithfulnessto
and to "law and order". Their reasoning our constitutional system,hold that the
may have been that if the postal workers Commander in Chief of the ArmedForces
were able to forcea settlementthroughan has the ultimatepower to take possession
illegal strike, governmental authority of private propertyin order to keep labor
would be seriously undermined.But this disputesfromstoppingproduction."29The
surelyoverstatesthecase. Even if thepostal wide indulgence granted to the President
strikeenjoyedsome initial success,thegov- when thenation is fightinga foreignenemy
ernmentcould still have enforcedcriminal is not grantedwhen the Presidentacts do-
and civil penaltiesagainst thestrikers, or it mestically.When Congress authorizesdo-
could have fired them and hired replace- mesticuse of troops,thePresidentassumes
ments. It seems a gross distortionto have the role of Commander in Chief, but this
defined the strike,especially in its early power as "firstgeneral" cannot serveas a
stages, as a national calamity. Using the substituteforcongressionalaction.
President'shazy,inherentauthorityto pre- Executor of the laws. In thepostal strike
vent national collapse to justifybreaking deployments, President Nixon explicitly
the strikewith militarypersonnel was, at relied on his powers to execute the laws,
best, a drastic and unprecedentedexpan- reasoning thatsince Congressprovidedfor
sion ofpresidentialpowers.The verynature the establishment and operation of the
postal system,militaryforcecould be used
ficiarygroups. Military personnel, veteransgroups,
to ensure fulfillmentof the postmaster's
and volunteers,forexample, could presumablyhave statutoryobligations.30But this argument
collected and delivered lettersto and fromthose in
Vietnam. 28YoungstownSheet and Tube Co. v. Sawyer,343
As for the criteriafor declaring a national emer- U.S. 579, 587 (Opinion of theCourt),632 (Douglas, J.,
gency, one recent commentatornotes: "the test for concurring),644 (Jackson,J., concurring),650 (Bur-
when a national emergencyexists is completelysub- ton, J., concurring),660-61 (Clark, J., concurring)
jective-anything the President says is a national (1952).
emergencyis a national emergency."See the note, 29d. at 587.
"The National EmergencyDilemma: Balancing the 30PresidentNixon's Executive Order began as
Executive's Crisis Powers with the Need for Ac- follows:
countability," Southern California Law Review,
Vol. 52, No. 5 (July1979),pp. 1458- 1511.There were Whereascertainemployeesof the Postal Serviceare en-
four declared national emergenciesbetween March gaged in an unlawful workstoppage which has prevented
the deliveryof the mails and thedischargeof otherpostal
1933and September14, 1978. In addition to thepostal functionsin various parts of the United States;and
strike,President Nixon also declared a Balance of Whereas,the laws of the United States. . . require that
PaymentsEmergencyin 1971. In 1976, Congress en- the business of the Post OfficeDepartment,including the
acted the National EmergencyAct,10 U.S.C. ?? 1601- expeditiousprocessingand deliveryofthemail, be regular-
1651 (1976), establishing guidelines for both the ly carriedon; and
declaration and terminationof futureemergencies. Whereas the aforesaid unlawful work stoppage has
preventedand is preventingtheexecutionof theaforesaid
Only one national emergencyhas been declaredsince laws relatingto the Post OfficeDepartment;and
passage of the 1976 act. In 1979,PresidentCarterde- Whereas the breakdown of the postal service in the
clareda national emergencyin orderto freezetheassets numerous areas affectedby the said unlawful work stop-
of the Iranian government.Executive Order 12170, page is a matterof grave national concern;and
3 C.F.R. 457 (1979 Compilationand Parts100and 101). WhereasI am chargedby theConstitutionof theUnited
States to takecarethatthelaws be faithfully
26NewYork Times, March 24, 1970,p. 16.
2718U.S.C. ? 1918 (1976) makes it a crimeforfederal Executive Order 11519, 3 C.F.R. 909 (1966-1970
employeesto strike. Compilation).

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provestoo much. Following it to itslogical the Posse Comitatus Act. As amended in

conclusion, all federalemployeescould be 1956,34it provides:
replaced by militarypersonnel if, in the Whoever,except in cases and under cir-
judgment of the President,theirstatutory cumstances authorized
expressly bytheConstitu-
duties were not being satisfactorilydis- tionorActofCongress, willfully
charged.The authorityto execute thelaws theArmy ortheAirForceas a possecomitatus or
could be transformedinto a charter for otherwiseto executethelaws shallbe finednot
militaryrule. morethan$10,000or imprisoned notmorethan
Fortunately,the Constitution's "faith- twoyears,or both.35
fullyexecute" clause does not provide the The Act is the most significantlegislative
basis for military dictatorship. When restrictionon executiveuse of troops.On its
executingthe laws, the Presidentmay take face,this law clearlypreventsthePresident
only such actions as are not prohibitedor from assigning military personnel36 to
pre-emptedby Congress;he cannot violate strike replacement duty unless there is
the laws in order to execute them.3'The anotherlaw thatexpresslypermitsit.
question therefore is whetheruse of troops A law adopted in 1861 is the one most
in the postal strikewas authorizedor pro- relevantto the use of troopsin a domestic
hibitedby Congress.32 crisis;it provides,as one would expect,that
The Posse Comitatus Act. In 1878, re- troops may be deployed domesticallyin
acting to PresidentGrant's frequentuse of grave situations of insurrectionand dis-
theregularmilitaryforcesin labor disputes
and othercircumstances,33 Congresspassed framersfullyintendedto limit the President'suse of
militaryforces in peacetime to those circumstances
3'Edward S. Corwin, The Constitution(revisedby expressly provided for in the Constitution of the
H. W. Chase and C. R. Ducat), 14thed., (Princeton, United Statesor in federalstatutes.Denne Siener and
N.J.: PrincetonUniversityPress, 1978), p. 191. Andrew Effron, "Military Participation in United
321n seeking to resolve the question of the Presi- States Law EnforcementActivities Overseas: The
dent's authorityto deploy troops to replace federal ExtraterritorialEffectof the Posse Comitatus Act,"
workers,I am drawnto theSupremeCourt'slandmark St. Johns Law Review, Vol. 54, No. 1 (Fall 1979),
decisionin YoungstownSheetand Tube Co. v. Sawyer. pp. 1-54 (quotation frompp. 44- 45).
The Court held that the Presidenthad no constitu-
The context ofthedebatefurtherunderscores
development ofa
tional authorityto seize the nation's steel mills; such commontheme.Debatefocusedon oppositionto use of the
authorityhad to come from Congress. 343 U.S. at militaryin situationswheretheorganized and fac-
587 - 89. Since Congresshad just defeateda proposed torsofa military
force werenotrequired,
amendmentto the Taft-HartleyAct that would have collection
supervision ofelections,
givensuch power to theexecutive,thiswas an implied and in responseto laborstrife,
whenthetaskwas withinthe
existingorpotential ofstateforces.
prohibition of seizure. Id. at 586 (Opinion of the
Court), 598- 603 (Frankfurter,J., concurring),657 3470aStat. 626 (1956).
(Burton, J., concurring), 663- 64 (Clark, J., con- 3518 U.S.C. ? 1385 (1976). "Posse Comitatus" liter-
curring). ally means the power or forceof the county,refer-
JusticeJackson's concurringopinion has achieved ring to the power of a sheriffto summon the entire
greatestprominence.Jackson argued that the Presi- population of a county above the age of fifteento
dent'spower is at its maximumwhenhe actspursuant his assistancein certaincases.
to an expressor implied authorizationof Congress.It 36Thereis no doubtingthatthePosse ComitatusAct
is in a "zone of twilight"when he acts in theabsence applies to active duty Armyand Air Force Reserves
of congressionalauthorityand can rely only on his and to the Armyand Air National Guard when in
own independentpowers. It is at its lowestebb when federal service. Major H. W. C. Furman, "Restric-
he "takes measuresincompatiblewith the expressor tionsUpon theUse of theArmyImposed by thePosse
implied will of Congress, for then he can rely only Comitatus Act," MilitaryLaw Review, Vol. 7 (Janu-
upon his own constitutionalpowers minus any con- ary 1960),p. 99. At the timeof the strike,the Defense
stitutionalpowers of Congress over the matter."Id. DepartmentregardedtheActas an expressionofpolicy
at 637 (Jackson,J., concurring).Nixon's use of the applicable also to the Navy and Marine Corps. Major
regulararmed forcesand reservistsduring the postal Clarence Meeks, "Illegal Law Enforcement:Aiding
strikeclearly fitsJusticeJackson's thirdcategoryas Civil Authoritiesin Violation of thePosse Comitatus
Congresshad expresslyprohibitedsuch use of troops Act,"MilitaryLaw Review,Vol. 70,(Fall 1975),p. 101.
in the Posse Comitatus Act. See textaccompanying In 1972, the Nixon Administrationbroke with tradi-
notes 33- 40, infra. tional policy by assertingthat the Navy and Marine
3320 Stat. 152 (1878). An excellent review of the Corps were outside the ambit of theAct. Note, "Hon-
history of the Posse Comitatus Act finds that its ored in the Breach," pp. 130, 144, note 1.

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ruption, when civil authorityhas broken Instead, the President pointed in his
down: executiveorderto 10 U.S.C. ? 3500,which
Whenever thePresident considers
thatunlawful authorizes the Presidentto use ArmyNa-
obstructions,combinations,assemblages,or tional Guardsmen fordomesticpeacekeep-
rebellionsagainstthe authority of theUnited ing "whenever[he] is unable withtheregu-
States,makeit impracticabletoenforce thelaws lar forcesto execute the laws of theUnited
oftheUnitedStates. . . bytheordinarycourseof States."'4'The statuteprovides for the use
judicialproceedings,hemay. . . usesuchofthe of the National Guard as a last resort;pre-
armedforces as he considers
necessarytoenforce sumably, the regular forcesmust firstat-
thoselaws or to suppresstherebellion.37
tempt,and fail,toexecutethelaws. As in the
Other statutesempower the President to case of theemergency proclamation,neither
deploy the armed forceswhen thereis an PresidentNixon in his executiveorder,nor
"insurrectionin any stateagainstitsgovern- Assistant AttorneyGeneral (now Justice)
ment"38 and to suppress unlawful com- William Rehnquist in an internalmemo-
binations or conspiracies that "obstruct randum on this subject,elaboratedon the
the executionof federallaw."39These stat- unprecedenteddecision to use Guardsmen
utes also presuppose the inability or un- as a replacementforstrikers.42
willingness of civilian institutionsto per-
formtheirlawful functions.These statutes GubernatorialAuthority
were not cited, however, in President The majorityof public employeeswork
Nixon's executive order deploying feder- forstateand local government;mostpublic
alized National Guardsmen to deliver sectorstrikesoccur at these levels. To de-
mail.40 terminewhen troops can be called up to
play a replacementrole at theselevels,we
3710U.S.C. ? 332 (1976). Historyindicates thatthe must look to stateconstitutionaland statu-
lawmakers who passed this statutein 1861 believed torylaw.43Statestatutesor constitutions,or
it permittedthe use of federaltroopsonly when civil-
ian institutionswere incapacitatedin the course of a
absurd forCongressto grantthePresidentauthorityto
rebellion, insurrection,or riot. Engdahl, "The New
deploy the reservesdomestically,while not allowing
Civil Disturbance Regulations," pp. 581-617.
him to deploy the regularforces.
Further,even had thestatutebeen applicable, it would
41PresidentNixon also relied in his executiveorder
seem to authorize no more than firing or jailing
strikerswho disobeyed the court injunction, not es- on 10 U.S.C. ? 8500 (1976), which contains the same
tablishing militaryoperation of the postal system. provisions as ? 3500, except that it is applicable to
When Arkansas state officials activelyimpeded the the Air National Guard.
421n an unpublished internalWhite House memo-
implementationof school desegregationin the 1950s,
President Eisenhower relied on this statute(as well randum to Assistantto the President,John Erlich-
as on 10 U.S.C. ? 333, note 39, infra)to send the Na- man, Rehnquist stated:
tional Guard to Little Rock. Executive Order 10730, I havebeenunabletolocateanysquareprecedent forthe
3 C.F.R. ? 389 (1954- 1958Compilation). The Guard's use of 10 U.S.C. ? 3500toauthorize
militarypresencewas used only to preventviolence perform a federalfunction,ratherthansimplyguardor
and to ensure thatnothingobstructedthe integration protect otherswhoare performing thatfunction,
of the schools. The Guard did not assume theadmin- statutory languageis broadenoughso thata reasonable
argument can be madein supportofsuchuse.
istrative,clerical, or educational duties of school
officials. "Memorandum to the Honorable John D. Erlich-
3810U.S.C. ? 331 (1976). man," from Assistant Attorney General William
3910U.S.C. ? 333 (1976). Rehnquist, March 22, 1970.
40TheArmed Forces ReserveAct of 1952, 10 U.S.C. 43Each state constitutionconfersexecutive power
? 673 (1976), authorizesthe Presidentto order mem- upon the governor or names him the state's chief
bersof theReady Reserveto activedutyin timesofwar executive;designateshim the commander-in-chief of
or national emergency.PresidentNixon reliedon this the state's militaryforces;and chargeshim with the
statuteto utilize reservists,but invoked "the powers faithful execution of the laws (Massachusetts and
vestedby the Constitution" to justifytheirdomestic New Hampshire implicitly,fromthe oath of office).
deployment. In its subsequently formulated ad- Thirty-six state constitutions specifically provide
ministrativeregulations, the Nixon administration the governorwith authorityto call out the National
did not interpretthis statuteas an exception to the Guard. National Association of AttorneysGeneral
Posse Comitatus Act. See "Employment of Military [hereinafterNAAG], Committee on the Office of
Resources in the Event of Civil Disturbances," 32 AttorneyGeneral, Legal Issues Concerningthe Role
C.F.R. ? 215.4(c) (1) (i) & (ii) (1980). Indeed,it would be of the National Guard in Civil Disorders (Raleigh,

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both, specifythe conditions under which Since no-strikeprovisionsare usually part

the National Guard may be activated.44 of the law of the state,the Governorcould
None of the statesthathave adopted com- deploy troops to enforcethe ban on public
prehensivepublic sectorcollectivebargain- employee strikes.Alternatively, it could be
ing statuteshave included provisions for argued thattroopsare justifiedto maintain
use of Guardsmen as replacements.These public servicesthat are authorizedby law.
laws are sufficiently flexible,however,to The latterjustificationwould apply even
leave largely to the governor'sdiscretion to statesin which public employee strikes
the decision whetheror not to deploy the are permissible,unless one interpretsthe
Guard in public sectorstrikes.While the acceptanceof public sectorstrikesas a per-
courts,in theory,can reviewsuch deploy- missible exception to the requirementthat
ments,in practicetheyare unlikelyto sec- executive agencies maintain their oper-
ond-guessthe governor.45 ations.46
A sampling of constitutionaland statu- A number of states authorize the gov-
tory authority for gubernatorial deploy- ernorto call out theNational Guard in case
mentof theNational Guard is presentedin of "emergency."Since almostanythingcan
Table 3, which shows that several states be labeled an "emergency,"a governoris
permitthe governorto use troops"to exe- freeto deploy National Guardsmen in al-
cute the laws of the state." Read broadly, mostany strikebystateand local employees.
this formulationcould justifythe use of While every public sector strike creates
troopsin any illegal public employeestrike. severe problems for some governmental
operations, sometimes adjustments can
N.C.: The National Associationof Attorneys General, minimizeservicedisruptionand hardships
1973),pp. 10- 20, Table 3. for service beneficiaries;in other circum-
In everystatebut New York, thisenabling power is
governed by constitutionalprovisions strictlysub- stancessubstantialdisruptionsare difficult,
ordinatingthemilitaryto civil authority.Ibid., pp. 10 if not impossible, to avoid.
and 12, Table 4. Moreover,under nineteenconstitu- So fartherehavebeenno reportedjudicial
tionsonly thelegislaturecan suspendtheoperationof decisions on challenges to the governors'
civil law; theseprovisionsare meant to avoid a situa-
tion where the governormight use a public emer-
use of troops as replacementsin public
gency as an excuse for using the militaryirrespon- sectorstrikes.This may be due to the fact
sibly. Also, in 1973 over half of the stateshad civil that such suits would have littlechance of
defensestatutesgrantingtheexecutivewide discretion success, given the recordof judicial defer-
in emergencies.Ibid., p. 13. ence to executiveauthorityin this area.47
44Only one constitution,Tennessee's, places any
legislativecheck on the governor'spower to call out
In the federalcourts, such suits would be
the militia. Notably,the legislaturehas circumvented unlikely to survive a motion to dismiss,
that limitation by defining "militia," Tenn. Code since no federalstatutoryor constitutional
Ann. ? 7-106 (1970), not to include the National rightsare involved.A disgruntledGuards-
Guard. Some states limit the use of the Guard in man would have standingin statecourt to
emergenciesby definingemergencynarrowlyenough
to exclude labor strife.See, Cal. Military&cVeterans challenge an allegedly illegal call-up, but,
Code ? 1505 (West 1955). Others establish a civil de-
fenseadvisorycouncil that may limit the governor's 461n Montana, for example, prison guards are
emergencypowers. See, N.C. Gen. Stat. ? 166-4 allowed to strikeaftertheyexhaustimpasseprocedures
(1976); Vt. Stat. Ann. tit. 21, ? 4 (1958). Although and give notice. In 1979,the guard union announced
most statesrequirea proclamationor executiveorder its intent to strikeif wage demands were not met.
to be issued when thesepowersare claimed, fewhave State negotiatorsmet with National Guard officers,
any specific criteria for issuing a justificatory devised a plan forsending troopsto the prisons,and
proclamation.A governorhas even broaderlegal dis- arrangedto have Guard officersmeetprison officials
cretion than the President over whether,how, and and tour their facilities. In effect,the Guardsmen
when to call up the Guard. NAAG, Role of the Na- were activated and pre-positionedbefore the prison
tional Guard, pp. 17- 19. guards walked offthe job. The justificationwas not
45Thereis a strongtraditionof judicial noninvolve- maintenance of prison operations but ratherantici-
mentin executivedecisions involvingdeploymentof pation of a likelyemergency:when thestrikeoccurred
the militia. See, e.g., Luther v. Bordon, 48 U.S. (7 GovernorThomas Judgeissueda "stateofemergency"
How.) 115 (1845); Gilligan v. Morgan, 413 U.S. 1 proclamation.
(1973). 47Seenote 45, supra.

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Table 3. GubernatorialAuthorityto Activate

the National Guard in SelectedStates.

State a

Alaska Alaska Constitution,ArticleIII, ? 19. The governoris commander-in-chief

of thearmedforcesof
theState.He maycall out theseforcesto executethelaws, suppressor preventinsurrection
or law-
less violence,or repel invasion.
Colorado Colorado Constitution,ArticleIV, ? 5. The governorshall be commander-in-chief of themilitary
forcesof the state... He shall have thepower to call out themilitiato executethelaws, suppress
insurrectionor repel invasion.
Colorado Rev. Stat. ? 28-3-104.The governorshall be thecommander-in-chief
of thearmedforces
... and mayemploythesame forthedefenseor reliefof thestate,theenforcement of itslaws, and
the protectionof lifeand propertytherein.
Louisiana Louisiana Constitution,Article4, ? 5(J).The governorshall be commander-in-chief ofthearmed
forcesof the state. .. He maycall out theseforcesto preservelaw and order,to suppressinsurrec-
tion, to repel invasion,or in othertimesof emergency.
Louisiana Rev. Stat. Ann. Chapter 1, ? 7 (West).The governormay call into theactiveserviceof
the stateany partof themilitia thatis necessaryin theeventof insurrection,
invasion,or riot,or
imminentdangerthereof,or in theeventof public disasterfromflood,fire,storm,or earthquake,
or to assist civil authoritiesin guarding prisoners.
New Jersey New JerseyStat. ? 38A:2-4(West). The governormay,in case of insurrection,invasion,tumult,
riot, breach of peace, natural disasteror imminentdanger to public safety,orderto active duty
all or any part of the militia ...
New York New York MilitaryLaw, ArticleI, ? 3. The governorofthestateshall be thecommander-in-chief
of the militia of the state.
New York MilitaryLaw, ArticleI, ? 6 (McKinney). The governorshall have power,in case of
riot,breachof thepeace or imminentdangerthereof;toorderinto
active service . . . the organized militia.
Ohio Ohio Constitution,Article9, ? 4. The governorshall have power to call forththe militia,to exe-
cute the laws of the state,to suppressinsurrection,to repel invasion,and to act in theeventof a
disasterwithin the state.
Rhode Island Rhode Island Gen. Laws ? 30-2-6(1968). In case ofmartiallaw, war,invasion,rebellion,insurrec-
tion,riot,tumult,public calamityor catastrophe,or otheremergency, or imminentdangerthere-
of, or resistanceto the laws of thisstateor theUnited Statesthegovernorshall orderinto service
all or any part of the militia.

aEmphasis insertedby this author.

as Table 3 shows, the constitutionaland factorslocal leadersand the governorcon-

statutoryauthorityforexecutivediscretion sider in making a decision to call up the
to activateNational Guard forcesis so broad Guard.
that such a suit would have little chance The CapacitytoServe:PracticalConstraints
beforea state judge faced with an illegal The National Guard is bettersuited to
strikeand disruptedgovernmentalservices. some replacement duties than others.
Whetheror not theGuard can play an effec-
Nonlegal Constraints tive replacement role depends upon the
The decision-makingprocessleading toa complexity of the operations to be per-
call-up of theNational Guard in strikeand formedand on the consequences of faulty
strike-threat situations has not been ana- performance.We may hypothesize that
lyzedin case studies.In theabsence of such where operations are very complex and
a literature,it is useful to speculate on the where the consequences of faultyperfor-

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mance are severe,therewill be a greaterre- in all threetherewas a honeymoonperiodof

luctance to call upon the National Guard. mutual respect and cooperation between
The 1980 strikeby New York Citytransit Guardsmen and prisoners. Some of the
workersis an example. An informantwho regular prison activitieswere resumed as
was close to the negotiationsadmits: "We the Guardsmen gained enough confidence
neverseriouslyconsideredusing theGuard. to handle various situations. Part of the
The transitsystemwas simplytoo complex; success of the Guardsmenin theNew York
thepotentialfora cataclysmicaccidentwas prison guard strike may be attributable
too great." It was feared,in addition, that to the fact that the numberof Guardsmen
angryworkersmight sabotage the system. far exceeded the regular complement of
Thus, although the decision to close down prison guards.
the transit system enormously inconve- Institutionsfor the mentallyill and re-
nienced New Yorkers and cost businesses tardedand nursinghomesareprobablyeven
millions of dollars in losses, a call-up of easier than prisons for replacements to
the National Guard was neverconsidereda operate, since thereis less need to worry
viable option. about violenceorescape. In addition,family
At the otherend of the continuumlies a members and other volunteers who are
postal strike.Postal operations,especially interestedin thepatientsor inmatesin these
mail delivery,requireonlylow-levelskills.48 institutions may help if replacement
National Guardsmencan be briefedand sent Guardsmenneed assistance.
into action in a few hours. If theirperfor- Modern day firefighting, on the other
mance is poor,themail maybe lostorgo un- hand, is a complex taskinvolvingtheuse of
delivered,but therewill be no loss of life, sophisticated equipment. Some fires,
serious propertydamage, or catastrophe. such as thosein chemical plants or oil stor-
The job ofprisonguardlies somewherein age facilities, are extremelydangerous.
between.It has major responsibilities,butit Negligent performanceby firefighters can
reallyrequireslittletraining.9 Most guards resultin the loss of lifeand property.Fire-
are trained"on the job" and much of their fightingis thus not the easiest role for
duty involves little more than watching Guardsmen to fill; yet,as Table 1 shows,
prisoners.In a strikesituation,therole can firemen'sstrikesaccount for the greatest
be even furthernarrowedby confiningthe number of replacementcall-ups. Govern-
prisonersto their cells around the clock. mentleadersno doubt believe thattherisks
Under such a "lockdown," the danger of in not providinganyprotectionagainstfire
violence or escape is greatlyreduced and outweigh those incurred by a National
thereplacements'main taskis to servefood Guard call-up.
in the cells. How have Guardsmen performedwhen
The National Guard has been verysuc- called upon to replace strikingfirefighters?
cessfulat providingvital servicesand main- A reviewof newspaperreportson National
tainingsecurityduringprisonguardstrikes. Guard deploymentsforsuch strikesreveals
The Guard served without apparent in- that the troops, with the help of civilian
cident, riots, killings, or escape during supervisorypersonnel,have learned to use
lengthystrikesin Wisconsin (1977), Mon- most of theequipmentand have performed
tana (1979), and New York (1979).5?In fact, adequately. In some instances, however,
delayed reaction to alarms is reportedto
48The pigeon-holing of lettersby zip codes could have "caused" major propertydamage.
be done by an experiencedclerk at a piece rate of In Great Britain,a nationwidefirefight-
1200- 1500 per hour; the marines sortedat a rate of ers' strikein 1977 led to the activationof
600 per hour. New York Times, March 24, 1970,p. 2. 20,000 military replacements.They were
49SeeJamesB. Jacobs and Harold Retsky,"Prison outfittedwith outdatedfirefighting equip-
Guard," Urban Life, Vol. 4, No. 1 (1975), pp. 5-29.
50SeeLeague of Women Voters, Changing of the
Guard: Citizen Soldiers in Wisconsin Correctional Montana Prison Strike:A Case Study," unpublished
Institutions(Madison, Wis.: League ofWomen Voters, paper, Cornell University,1980; Zimmerand Jacobs,
1978); JamesB. Jacobs and Lynn Zimmer,"The 1979 "Challenging the Taylor Law."

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ment,apparentlyto softenthe strikebreak- violencewill resultfroma police strike.The

ing symbolism.5'Nevertheless,themilitary greatestconcern is ratherthat the troops
personnelperformedadequately,according themselveswill cause damage and possibly
to GeoffreyMarshall: the loss of lifeby recklessacts. In severalof
The strikeendedon January 12,1978,having theriotsof the 1960s,National Guard units
lastedforthreemonths. Subsequently published showedpoor judgmentin exercisingforce.54
insurance figureshaveshownthatthecostoffire Improved training and increased concern
damagetoproperty wasroughly twicethatofthe forgeneralsafetyand peace-keepingwould
corresponding period in the previoustwelve probably lead to a more effectiveperfor-
months.The evidentunpopularity ofthestrike, mance by the Guard duringpolice strikes.55
together withthelackofsympathetic actionby
otherunionsor supportby theTradesUnion
Congress, werefactors thathelpedtobringabout Political Impediments
a settlement. Buta majorpartwasundoubtedly Calling up troops to act as replacements
thesizeandeffectiveness oftheeffortbywhichthe obviously involves political risks: the po-
strikerswerereplaced.52 tential for violent confrontationsbetween
Police strikespose less ofa challengethan strikersand Guardsmen, the possible op-
firefighters' strikes.Troops areoftenalready position of uninvolved unions, and the
trainedforpolice action and theycan with- spectre of sympathy strikes. Some poli-
out difficultypresenta highlyvisible and ticians and most trade unionists sharply
mobile patrol.In fact,militaryforceson the criticized,for example, the use of troops
streetsmay be a more effective deterrentto in the1970postal strike.56
For themostpart,
crimethan civilian police. though,organizedlabor's responseto troop
As studies of police have emphasized, activationshas beensurprisingly restrained.
police work often involves responding to The officialposition oftheAmericanFeder-
simple requests for assistance, getting to ation of State,County,and Municipal Em-
hospitals, and settlingdisputes.5'Many of ployees (AFSCME), forexample, supports
these functionscan be performedby un- legislation that "provides access to legis-
trainedpersonnelor referred to otheragen- lated interestarbitrationfor public safety
cies, friends,or neighbors.Militaryperson- employeesas an alternativeto theunlimited
nel maynot be able to respondas quickly to rightto strike...." Wherethepublic safety
emergencycalls as regularpolice, but most
seriousoffensesoccur beforea phone call is 54National Advisory Commission on Civil Dis-
made to the police. Investigativefunctions orders, Report, (New York: New York Times Co.,
can usually be suspended during a short 1968),pp. 497- 506.
55By planning, officereducation, practical exer-
strikeand plainclothes investigatorsmay cises, attentiondirectedto abuse of force,and other
well remainon thejob in spiteofa strikeby measurestakensince Detroit,Newark,and KentState,
the uniformedforces. the National Guard has developed tacticsthoughtto
With the National Guard patrollingthe be substantial improvementsover those previously
streets,it is unlikely that widespreadloot- used. NAAG, Role of theNational Guard,pp. 81-84.
56Democraticpolitical figureswerevirtuallyunani-
ing and an increase in individual acts of mous in condemning PresidentNixon's emergency
actions in the postal strike. George Meany con-
51SeeChristopherWhelan, "The Law and theUse of demned it but urged the employeesto returnto work.
Troops in IndustrialDisputes," Working Paper No. JerryWurftermedtheuse of troopsa "shocking piece
2, Wolfson College, Oxford: Centre for Socio-Legal of strike-breaking."John DeLury, presidentof New
Studies, March 1979); ChristopherWhelan, "Military York City's UniformedSanitation Men's Association,
Interventionin Industrial Disputes," The Industrial said "the use of troops in New York City is a step
Law Journal, Vol. 8, No. 4 (December 1979), pp. backward to the Stone Age of labor-management
222- 34. relationships with federal employees." New York
52GeoffreyMarshall, "The ArmedForcesand Indus- Times, March 24, 1970, p. 35. There were, however,
trialDisputes in theUnited Kingdom,"ArmedForces severalunions thatsupportedthePresident,including
and Society,Vol. 5, No. 2, (1979), p. 277 (emphasis the United Electrical,Radio and Mechanic Workers
added). of America,the New York State chapterof the AFL-
53JamesQ. Wilson, Varietiesof Police Behavior: CIO, the Newspaper Guild, and the DistrictCouncil
The Management of Law and Order in Eight Com- 37 of AFSCME. New York Times, March 24, 1970,
munities(New York: Atheneum,1972). p. 35.

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is not involved, AFSCME supports legis- stateemployee strikes,the moneysaved by

lation allowing strikesbut prefers"volun- not paying thestrikers can be setoffagainst
tarybindingarbitration"as an alternative.57 thecostof theNational Guard. In strikesby
The leadersof public sectorunions prob- local employees,thecitymay not only save
ably believe that opposition to the use of moneybynothaving to pay thestrikers but,
National Guardsmen to maintainessential in addition, the state usually pays for the
services would be unpopular and might Guard. This might createan incentivefor
jeopardize theacceptabilityof public sector fiscallypressedcitieswith severelabor dif-
collective bargaining.58The public is not ficulties to request National Guard per-
apt to tolerateboth illegal strikesand a ban sonnel. New York State has addressedthis
on theuse of replacements.If troopdeploy- problem by requiring the county,city,or
mentin public sectorstrikesweretobecome municipalitythatrequeststheGuard topay
moreprevalent,however,union opposition half the costs of mobilization and deploy-
mightintensify. ment.59
The Financial Costs Resistance to StrikeDuty
The financial cost of calling out the "The primarymotive for the revival of
National Guard pales in comparison to the militia [in the 1870s]" according to
strikers'demands for wage increases, al- Riker, "was a felt need for an industrial
thoughmuch depends upon thenumberof police."60 This need gave the militia the
employeesaffectedbythesettlement and on ability to attractsupport frominfluential
the numberof strikers.Deploymentof the economicinterests. But theindustrialpeace-
National Guard duringthe 1979New York keeping role was controversialand theun-
prison-guardstrike,forexample,costabout popularity of strike breaking among the
a million dollars per day,but stateofficials working class created serious recruitment
estimatedthatevena one percentpermanent problems. It was crucial for the National
wage concession to stateemployeeswould Guard's survivalto de-emphasizeits strike-
have been more costly. breaking role and find a differentraison
In making financial assessments,it is d'Ptre.
importantto determinewho will bear the The problemwas solvedwhen theGuard
costsof militarydeployments.In thecase of became thebona fidereservecomponentfor
the United States armed forcesin 1903.61
57AmericanFederation of State, County, and Mu- This change was desirable forseveralrea-
nicipal Employees, "Public Sector Dispute Resolu- sons. First,thefederalgovernmentassumed
tion," adopted at the 23rd AFSCME International an everincreasingshareof thecostofopera-
Convention, June 1978. Similarly, the AFL-CIO's
Public Employee Department resolved at its Fifth tions and payroll. Second, the National
Biennial Conventionin June 1981 thatit: Guard gained prestigeas a "real military
force" with national defenseresponsibili-
... supportsand will urgetheCongressto providefederal
legislationso that public safetyemployeesof statesand ties. Third, servicewas not suspect in any
politicalsubdivisionsthereof,shall be subjectto a national way; indeed,itwas popular and prestigious.
publicsafety employees collective
bargaining law providing The 1903 Dick Act,which establishedthe
bindingarbitrationas an impasseprocedure forsettlinglabor
disputesbetween employers and theiremployees. National Guard as the Armyreserve,pro-
[and thatit] . . . recognizes
vided that trainingand equipment would
employeesin otherworksectors, otherthantheareasofpublic be paid forin large measureby the federal
safety, hisorherservicesinanycollectivebargain- government.The Guard was used in 1916
inglegislation provided forthoseemployees.
on the Mexican borderand in 1917 in the
[andthat]forthepurposes publicsafety
of- First World War. Guard forces also saw
shallbe thoseuniformed
ficers employeesin thefieldsoffire
and law enforcement.
581n the AFSCME resolution cited in footnote 57, 59NewYork State Military Law ? 212 (McKinney
for example, that union acknowledged that public Supp. 1980).
sector strikesare often counterproductive, adversely 60Riker,Soldiers of the States,p. 55.
affectingthe cause of public sector trade unionism 61Actof January21, 1903,32 Stat. 775, as amended,
and, in the case of public safetyworkers,affectingthe 35 Stat. 399 (1908). See also National Defense Act of
health and safetyof a community. 1916,39 Stat. 166, as amended,41 Stat. 759 (1920).

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extensiveservice in World War II and in cepts its replacementrole with great re-
Korea. Under the "total force" policy de- luctance.
veloped by the Departmentof Defense in Policy Issues
1970-72, reservistsrather than draftees Nearly all statesthat have extendedcol-
are currentlythe primarysourceof person- lectivebargainingto public employeeshave
nel foraugmentingactiveforcesin military also denied public employees the rightto
emergencies.62 The National Guard is thus, strike.To enforcetheban, theyprovidefor
by law, the nation's firstline of military a varietyof deterrent and punitivemechan-
reserves.63While thearmyreserveis oriented
isms. In New York State,forexample,strik-
towardsupportand training,the National ing public employeesincur a fineequal to
Guard's mechanized, armor, and infantry
the day's wages (in addition, of course, to
divisions are oriented toward combat in-
losing a day's pay) foreveryday on strike.66
The union whose membersare on strike
Serviceas a replacementforcein public privileges
facesthepossible loss ofcheckoff
sectorstrikesis thus no longer relevantto
and, in addition,theemployeris authorized
the National Guard's mission or self-con- and
toseekan injunctionagainstthestrikers
cept.One mightask,then,whetherthisdoes theirunion and to enforcethe injunction
not also hold trueforemergencyhumani- throughcontemptproceedings.67
tariandeploymentsforfloods,snow storms, This studyshowsthattheNational Guard
and blizzards.Those traditionaldutieshave can also be viewedas a weapon fordeterring
a long history,however,and enjoy public and defeatingillegal strikes.In a varietyof
support.They enhance the Guard's politi- contextsin which the Guard could play a
cal strengthand evenitsrecruitment efforts. it is alreadyan
replacementrole effectively,
Given thehistoryof theNational Guard, implicit factor in contract negotiations.
however,its leaders may well have doubts As bargainingby police, firemen,and cor-
about becoming too involvedin labor con- rectionalofficersreaches an impasse, both
flicts.In addition, servicein public sector
sides begin to consider the role thatcould
strikesis likely to become more contro-
be played by the state'smilitaryforces.In-
versial. The Guard may eventually have
as theydid deed, statenegotiatorscould alertand pre-
moreactual clasheswithstrikers,
position the National Guard to increase
in New York's 1979 prison guard strike,
and any such clashes may prod the ire of
If themilitaryforcesare alreadya partof
organized labor, as they did in the 1970
public sector collective bargaining, the
postal strikeand the 1979 Montana prison
issue thatmust be facedis whethertherole
guard strike.Guardsmenmaybe injured,as
of themilitaryshould be made explicitand,
in the 1978 St. Bernard Parish (La.) fire-
if so, whether it should be enhanced or
fighters'strike.The presenceof the Guard
may triggersympathystrikes,as was sug-
gestedwhen Mayor Lindsay proposed that Legitimizingand Enhancing the
the Guard be called out during the 1968 MilitaryRole
sanitation workers' strike in New York Since public sectorstrikesare illegal, one
City.65Such duty takes time away from mightwell ask whywe should notrecognize
training for militaryresponsibilities.For
66Andrew A. Peterson,"DeterringStrikesby Public
all thesereasons,it would not be surprising Employees: New York's Two-for-OneSalary Penalty
to learn that the National Guard itselfac- and the 1979 Prison Guard Strike," Industrial and
Labor Relations Review, Vol. 34, No. 4 (July 1981),
62KennethJ. Coffey,StrategicImplications of the pp. 545- 62.
All-VolunteerForce: The Conventional Defense of 67New York State Civil Service Law ?? 210-211
Central Europe (Chapel Hill: The University of (McKinneySupp. 1980).
NorthCarolina Press, 1979), p. 78. 68Whenanother postal strike appeared likely in
6310 U.S.C. ? 263 (1976). July 1981, Pentagon officialsprepared to mobilize
64Coffey, StrategicImplicationsoftheA il-Volunteer over 100,000 military personnel-regular forces,
Force, p. 97. and National Guardsmen-to move 90% of
65NewYork Times, February22, 1968,p. 30. the mail. Chicago Tribune, July21, 1981,pp. 1, 16.

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and encourage the deploymentof military and management.Unions would reactbit-

forcesas effectivelyas possible in all illegal terlyto an explicit move to make the Na-
strikesituations.Why not develop policies tional Guard part of the state'snegotiating
to make theGuard as effective a replacement team. Strikes might be more protracted
forceas possible?Would it not make sense, and violent; to overcomethe state,a union
for example, to train individual units to would have to takeextremeaction.To turn
take over various agency operations?Why labor-managementdisputes in the public
not have the National Guard account for sectorinto battleswould weakenthemorale
the civilian skills of its personnel so that and commitmentof public employeesand
theycan be deployedin public sectorstrikes destabilizethe controlledconflictthatmay
as individuals ratherthan as units? be necessaryforpublic sectorlaborrelations
To legitimateand enhance the Guard's to work.
replacementrole in thewaysjust suggested To enhance the National Guard's re-
might strengthenthe governor'shand in placement role would also be too costlyin
preventingstrikes.Such a policy would not termsof civil-militaryrelations. Keeping
be without a price, however,for it might the military at arm's length, out of en-
disrupt both the labor relations process tanglementwith civilian affairs,has been a
and civil-militaryrelations. key featureof the American political sys-
Most statesdo not permitpublic employ- tem.Greaterrelianceon themilitarytohelp
ees to strike,but neitherdo theychoose to control workers may lead to weaker and
punish illegal strikerswith the state'sfull weaker civilian governments.It is not
criminalpowers. While it would be a mis- healthyfora democracyto relyon themil-
take to conclude that we have a de facto itaryto curedomesticailments.The present
practice of tolerating public employee need for the National Guard to moderate
strikes,it would also be wrong to conclude labor-managementrelations in the public
that we unequivocally oppose them. In a sectorunderscoresthe need formore effec-
countryin which workershave therightto tive "institution building" in state and
bargainfreelyoverthetermsand conditions local government.
of employment,thereis considerableam-
bivalenceabout how to treatpublic employ- Diminishing or Eliminating the
ees who strike. Military'sRole
To a degree,strikesin the public sector, If one sees the use of militaryforcesas
like strikesin the privatesector,are a test replacementsforstrikingpublic employees
of strength.But in the public sector the as at least a potentiallyseriousproblem in
state's strengthhas been augmentedby a labor and civil-military relations,itis worth
varietyof legal enforcementmechanisms consideringwhetherit would be advisable
including injunctionsand strikepenalties. to diminishor eveneliminatethemilitary's
This gives the state an advantage but not role as a strikereplacementforce.
necessarilya decisiveone. To "unleash" the The role of replacements.This is not the
National Guard as a public sectorstrike- appropriate place for a full-scaleanalysis
breaking force might eliminate many of the role of replacementsin the public
strikes,but perhaps at the cost of weaken- sector collective bargaining framework.
ing collectivebargaining.One has toask ifa Briefly,though,privateemployersare free
strikethreat,evena remoteone, is necessary to continue operationsin a struckplant by
to make public sectorcollectivebargaining using replacementsand thereseems to be
effective.The potential fora strikemay be no reasonwhypublic employersshould not
necessaryto keep the public employerbar- have the same right. The question then
gaining in good faith. Otherwise public arises: what replacementsare available to
sector bargaining, without interestarbi- public employers?
tration,mightbe substantiallyundermined. In the past, supervisors,personnel from
Anotherargumentagainstenhancingthe other agencies, trainees,units fromother
National Guard's replacementrole is that communities,and even volunteershave all
it would increase conflict between labor been used to keep governmentagencies

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operating.In addition,duringmostpublic departmentswereplaced on alert,and train-

sector strikes,some employees have con- ees stepped in to assume firefighting re-
tinued to work. If one were firmlycom- sponsibilities.Two weeks afterthe strike
mittedto using the National Guard spar- started,thecitybegan firingthestrikers and
ingly,all otherreplacementand alternative hiringreplacements.
services options would be utilized before Even in the nation's largestcities,it has
resortingto the militarytrumpcard. proved possible to weatherstrikeswithout
Even in the uniformedservices-police, National Guardsmen.Despite MayorLind-
fire,prisons-it has not always been neces- say's repeatedrequestsforhelp during the
sary to call on the National Guard. In the 1968sanitationworkers'strikein New York
majorityof strikes,public employershave City, GovernorRockefellerrefusedto acti-
eitherceased operations or found ways to vate troops. San Francisco's Mayor Joseph
maintain services.Consider the following Alioto refused, despite intense pressure
examples taken from Keith Ocheltree's fromthe Board of Supervisors,to ask for
Six StrikeStories.69In response to a 1967 National Guard assistance in an August
strikeby 217 social workersin Sacramento, 1975 police strike. In 1980, Mayor Jane
California,theBoard ofSupervisorsauthor- Byrneof Chicago rode out a turbulentfire-
ized new positions,thuspermitting replace- fighters'strike by relying on supervisors
ments to be hired; strikerswho did not re- and a varietyof other personnel. Even in
turnto workwerefired.In November1968, prison strikesit is not always necessaryto
2800 New York State mental hospital at- turn to the National Guard. In 1973,cor-
tendantswentout on strike;thedepartment rectional administratorsoperated the in-
continued essential operations by cancel- famous Walpole, Massachusettsprison for
ling leaves, providing overtimeforsuper- seven weeks with the help of statepolice,
visors and nonstrikers,subcontractingfor frontofficepersonnel, guards fromother
certaininstitutionalservices,and reducing prisons, and replacements hired off the
the number of patients at the affectedin- streets.
stitutions.Seventy-five percentof the sani- It is clear thateverystrikeby police, fire-
tationworkersin Atlantawalkedoffthejob fighters, prison guards,sanitationworkers,
in September1968; with police protection, or school teachers does not present an
theremainingworkersmaintainedessential "emergency" requiring activation of the
services. National Guard. The greaterthe commit-
Even in police, fire,and prison strikes ment to solve civilian problemsby civilian
thereappear to be alternativesto military means, the greaterwill be the effortto rely
forces.70The police struck in Tucson in on civilian replacementsin public sector
September 1975. Thirty-threepatrolmen strikesor, betterstill,to avoid such strikes
and fifty-ninesupervisors, working on in the firstplace.
twelve-hourshifts,were able to maintain More effective legal constraints.It would
services.In October 1975, Oklahoma City be possible to make constitutional and
experienced a police strike;140 highway statutorychanges to limit the kinds of
patrolmenand 434 nonstrikerscarriedon; strikesfor which it would be permissible
and private securityguards were hired to to activatemilitaryforces.The law might
protect police headquarters. In February provide, for example, that militaryforces
wenton a pro-
1976,police and firefighters could not be used as replacementsexcept
tractedstrikein Los Cruces, New Mexico; in strikesby members of the uniformed
nonstrikingpolice officerswenton twelve- services, that is, police, firefighters, and
hour shifts, sheriffand highway patrol prison guards.But thiskindofformulation
carriespotential problems.It mightlegiti-
mize and make call-ups routineforstrikes
69KeithOcheltree,ed., Six StrikeStories(Chicago: in the uniformedservices.It mightdenyto
Public PersonnelAssociation, 1969).
70William D. Gentel, Police Strikes: Causes and the governorthe option of using troopsin
Prevention(Washington,D.C.: InternationalAssocia- situations in which health and safetyare
tion of Chiefsof Police, 1979). threatened,such as certain strikesagainst

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hospitals, nursing homes, and sanitation pause in othercases. In addition,having to

departments.Using the term "essential appear before a non-involved decision
services" to delimit those activities for maker would forcean executiveto articu-
which the activation of troops would be late a justificationfor the use of troops.
permissiblecould raise similar problems. Such a justificationwould then be avail-
Some servicesare centralto thestate'sgov- able duringand afterthestrikeforscrutiny
erning role-police, courts,and prisons- and criticism.A legislativeveto is another
and theircessation could createa problem possibilitythatcould be explored.
or crisis in governing. Other servicesthe
state has chosen to undertake-hospitals,
transportation,fireprotection,sanitation, Conclusion
and welfare-and their cessation could The problems associated with formaliz-
cause severe inconvenience and hardship ing policies fortheuse of militaryforcesas
forbeneficiaries. replacements make it worth considering
To anticipate those strikesituations in whetherthe currentnonpolicy should be
which thethreatto lifeand propertyis suf- preservedin the short run. Today's legal
ficientlygrave to require militaryforces constraintson the use of militaryforcesas
as replacements,a standardsuch as "emer- replacementsare weak, indeed almost non-
gency"suggestsitself.It is possible to refine existent.Yet certainpracticaland political
the emergencytriggerby adding require- constraintscontinue to present some re-
mentslike "clear and presentdangerto life sistanceto automaticactivationof troopsin
and property";but this leaves enormous public sector labor disputes. These con-
discretion to the executive branch. One straintsmay dissipate over time if the tide
determinedto use troopscould finda "clear of public opinion hardens against public
and presentdanger to lifeand property"in employee strikes and if governmentde-
any public sectorstrike. velops more confidencein the capacity of
If enhanced legal constraintsare neces- troopsto serveeffectively.
sary to prevent an excessive reliance on The temptation is to emphasize legal
militaryforces,rewritingthe standardthat constraints.But the dangeris thatany for-
governsthe executive'sauthorityto deploy mal standardwill have the ironic effectof
troopswill not be sufficient. A more strin- legitimatingthe use of militaryforcesas
gent substantivestandardwill have to be replacementsin a vaguely definedclass of
complementedby strongerstructuresand cases. Troops may then be used when the
procedures-mostnotablybyrelyingon the threatto lifeand propertyis minoror when
popular American division-of-powers otheralternativesare available.
formula.The judiciarycould be empowered In the final analysis, the use of troopsto
to reviewthesituationin a proceduresimi- back up civil institutionsis a politicalprob-
lar to thatprovidedby theTaft-HartleyAct, lem. The best solution would be forwise
which authorizes the President merelyto leaders to make public sector collective
seek an injunction fromthe courtsagainst bargaining work. But if civil institutions
a strikethat threatensnational health or cannot govern themselveseffectively, the
safety.Of course,judges are likelyto show attraction of a "military solution" may
great deferenceto the Chief Executive in prove irresistible.There is a need to bring
times of purportedcrisis: only twice have this subjectinto the open. Examination of
federalcourtsrefuseda presidentialrequest the properuse of the militaryin labor con-
for a Taft-Hartleyinjunction. Still, twice flictswill help constrainunreflectiveand
may be betterthan never,particularlyif excessive use of troops to solve civilian
these precedents have given Presidents problems.

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