Most readers know that the Graduate Employees’ Organization, the union representing Graduate Student Instructors at the University of Michigan, is on strike. The University moved a state court for an injunction to end the strike and order GSIs back to work. The hearing on that motion is set for April 10. An injunction to force people back to work is properly understood as an extraordinary remedy, effectively banned at the federal level and disfavored at the state level.
The Michigan Supreme Court has said that it is “basically contrary to public policy in this State to issue injunctions in labor disputes absent a showing of violence, irreparable injury, or breach of the peace.” A public policy against labor injunctions — absent exceptional circumstances — is appropriate given their history, current implications and constitutional concerns. We should not seek to enlarge exceptions to this policy today. Instead, as a leading public university, we should direct our collective efforts toward recovering public support for key teaching and research functions — part of the background for the specific disputes playing out at the bargaining table.
The labor injunction, a judicial remedy to forcibly end strikes and boycotts, has a long and repressive history in the decades before the New Deal. Enforcement of such injunctions took place through the use or threat of physical, armed force; violations of injunctions frequently landed worker leaders in jail. The injunctions in the 1894 Pullman Strike, involving federal troops and mass arrests, formed an infamous example. Legal historian William Forbath described contemporaneous letters from then Judge William H. Taft to his wife, in which he opined, “Until they have had much bloodletting, it will not be better,” and soon thereafter, “They have killed only six of the mob as yet. This is hardly enough to make an impression.” “Government by injunction” was deeply unpopular with the public at large, who perceived it as a selective and illegitimate use of state power. That is why, in the early 1930s, Congress essentially eliminated the use of injunctions in labor disputes in the private sector.
Public-sector workers are governed by state law and therefore may still be subject to such injunctions, depending upon the state. Nevertheless, labor injunctions are disfavored in Michigan, and the state’s highest court made it clear (in a seminal case voiding an injunction aimed at K-12 teachers) that “it is insufficient merely to show that a concert of prohibited action by public employees has taken place and that ipso facto such a showing justifies injunctive relief.” To put it bluntly, a strike that is not supported by law is not necessarily subject to an injunction — nor should it be. More generally, not every violation of law (much less of labor law) results in an injunction backed by the threat of force and contempt sanctions. In such circumstances, we might invoke the wisdom of former Gov. Frank Murphy, in refusing to restrain the sit-down strikers in Flint and instead seeking a proactive solution. That historic action (of liminal legality) was a pivotal moment in a series of events that helped to usher in decades of more broadly shared prosperity in Michigan and arguably across the country.
A labor injunction also, obviously, has constitutional implications. Aside from the immediate associational dimensions of striking, the pending request to the court seeks to enjoin GEO from “encouraging, inducing, or persuading employees of the University” to strike. The Michigan Supreme Court has recognized that such restraints of speech in labor injunctions “raise a serious constitutional question.” Indeed, this constitutional question has been heightened in the decades since that statement, given the increasing weight that the U.S. Supreme Court has given to state public-sector workers’ First Amendment rights where labor association is concerned.
As a university, we should not urge Michigan courts to expand any exceptions to the general disfavor of labor injunctions. Expanding these exceptions would have implications for public-sector workers throughout the state. Generally speaking, workers who are providing services deemed so essential as to warrant forcibly ordering them back to work might be better retained through improved compensation and advancement opportunities. But the merits of various bargaining positions aside, the University has — and is pursuing — numerous other available responses, and does not need this extreme and disfavored remedy. And consider that while the violent labor repression of the pre-New Deal era may sound remote, a judicial injunction is by definition a broad and highly discretionary tool — violation of which would put workers or students in contempt of court, potentially subjecting them to jail time.
As a leading public university housed in the state that gave birth to the modern American labor movement, we have a unique opportunity to lead in educating and persuading elected leaders throughout this country to support public higher education and research as a broad social mission. A crucial background condition to the conflict currently playing out at the bargaining table is the collapse of entire fields in the humanities, social sciences and even the natural sciences. These market collapses mean that the basic social bargain of graduate education and work in these fields — a kind of apprenticeship period that is reasonably likely to lead to secure, long-term and reasonably-compensated employment in the field — has broken down.
The University and all of us in it are understandably concerned about disrupting core teaching and research missions in the short term. But it’s essential we also pursue this longer-term strategy of restoring public support for public universities, in order for that mission — in some of the most critical fields of human knowledge — to continue in the long term. This course will, I feel sure, prove far superior to invoking the bad old days of the labor injunction.
Sanjukta Paul is a professor at the Law School and can be reached at firstname.lastname@example.org.