Court Gives Job Preference to Strikebreakers in Union

The Supreme Court dealt organized labor a sharp blow Tuesday, ruling that employees who cross picket lines during a strike may keep their jobs, enabling companies to freeze out strikers who try to return to work at the end of a strike.

The 6-3 decision, growing out of a bitter 1986 strike by TWA flight attendants, established that TWA had the right to retain union members who had crossed picket lines in preference to rehiring workers with greater seniority who had remained on strike.

According to the court’s conservative majority, the decision merely applies existing labor law to permit a company to use its “arsenal of economic weapons” as a way to beat a strike. But the court’s liberal dissenters said that the ruling rewrites the law so that an employer may use “divide and conquer tactics” to split unions.

The case was filed under the Railway Labor Act, which governs airline and railroad labor relations, but the decision was written in a way that means it will affect other industries, as well.

The likely impact of the decision, according to union officers and leading labor lawyers, is that strikes, already increasingly disfavored by many unions, will become an even more dangerous tactic for disgruntled employees.

“This decision is a blow, not only to us, but to labor in general,” said Joan Wages, a spokeswoman for the Independent Federation of Flight Attendants. “This gives companies the right to entice workers to cross over (the picket lines) because they can be assured of a permanent job.”

The TWA flight attendants in this case walked off their jobs on March 7, 1986, when they were confronted with a proposed 22% wage cut and longer hours, according to union officers. The strike ended on May 17, after 72 days, when the union recognized that it could not win and made an unconditional offer that all strikers would return to work.

By that point, 1,280 of the original 5,200 striking members of the Independent Federation of Flight Attendants had crossed their union’s picket lines. In addition, the company had hired 2,350 other replacement workers and, during the strike, had permanently reduced its work force.

The company said it had vacancies for only 200 of the strikers, and that many were rehired, on a seniority basis, according to John P. Hurley, the Kansas City lawyer who represented the union before the Supreme Court. Since then, the company has rehired about 1,100 of the strikers, off a recall list, according to Hurley. But several hundred strikers have not been rehired.

Lawyers in the case said the ruling clarifies an issue that had never been decided precisely by the Supreme Court. In 1938, the Supreme Court ruled that strikers have no automatic right to reclaim their jobs after a walkout. However, that decision dealt only with newly hired strikebreakers and did not address the issue of strikers who broke ranks and returned to work.

The union’s suit against TWA sought to establish that workers who remained on strike had a right to be rehired on a seniority basis in preference to lower seniority workers who had crossed picket lines. The union did not contest the fact that new hires could keep their jobs. Since the landmark 1938 decision of National Labor Relations Board vs. Mackay Radio & Telegraph Co., employers have had the right to replace strikers permanently with new hires.

Union lawyer Hurley asserted that the union’s position was based on a series of decisions that have clarified the Mackay ruling.

Specifically, Hurley’s argument relied on a 1963 case called NLRB vs. Erie Resistor Corp. That decision held that an employer may not give special, permanent seniority rights to an employee who crosses a picket line during a strike. More generally, Hurley contended that allowing the company to retain the employees who crossed picket lines and not immediately rehire the strikers constituted discrimination based on union activity and violated the National Labor Relations Act.

But TWA countered by contending that union workers who crossed picket lines should not be forced out by returning strikers. To do so would penalize workers who kept working, the airline said. Murray Gartner, the New York lawyer who argued the case for TWA, contended that it would be ridiculous for the court to rule that “people who (were) hired off the streets could keep their jobs but veteran employees who returned to work couldn’t.”

A federal district judge in Kansas City ruled for TWA, but a federal appellate court in St. Louis reversed that decision and said that TWA may not discriminate among union members. It awarded union members $55 million in back pay. Tuesday, the Supreme Court reversed that appellate court ruling.

Justice Sandra Day O’Connor, writing for the court, said that TWA is “legally free” under the Railway Labor Act and the National Labor Relations Act to “exercise (its) peaceful economic power” in a way that helps the company and splits the union. “That the prospects of a reduction in available positions divide employees and create incentives among them to remain at work or abandon a strike . . . is fairly within the arsenal of economic weapons available to employers during a period of self-help,” she wrote in the case (TWA vs. IFFA, 87-548).

O’Connor said that the 1963 Supreme Court decision was inapplicable because TWA had not offered the returning employees special rights. Rather, it merely gave them their jobs back.

In dissent, Justice William J. Brennan Jr. condemned the court for what he called “an unarticulated hostility toward strikes.” The ruling “allows TWA to single out for penalty precisely those employees who were faithful to the strike until the end in order to benefit those who abandoned it . . . . An employee of only six months’ experience, who abandoned the strike one day before it ended, could displace a 20-year veteran who chose to remain faithful to the decision made collectively,” he wrote, joined by Justice Thurgood Marshall. Justice Harry A. Blackmun dissented separately.

Brennan added that the court’s decision allows an employer to adopt a “divide and conquer tactic” that strikes a fundamental blow against unions and the collective bargaining process.

O’Connor’s majority opinion said that most strikes do not end the way this one did. Usually, she wrote, a union can work out an agreement that gives its members their jobs back.

However, Stanford labor law professor William B. Gould IV noted that in recent years more and more employers have been using the threat of permanent replacements to discourage employees from striking or to attempt to persuade them to cross picket lines once a strike has begun. He said Tuesday’s decision ups the ante for unions thinking of striking.

“This is a disturbing decision,” Gould said. “It adheres to the nonsensical distinction that, on the one hand, prohibits employers from retaliating against strikers by firing them but, at the same time, permits the company to permanently replace strikers, which, despite the court’s reasoning, is a form of retaliation.”

Laurence Gold, general counsel of the AFL-CIO, said he was not surprised by the ruling, saying that the court’s conclusion was in line with rulings by the National Labor Relations Board. “It is not a surprise or a major change in that sense, but there has never been a Supreme Court decision on this issue,” he said.

David G. Savage reported from Washington and Henry Weinstein from Los Angeles.