Law Stacked Against Strikers at Eastern

Texas Air Chairman Frank Lorenzo seems to be doing more to unite America’s unions than almost any union leader has in recent history. He apparently is even helping labor win some rare public support.

The hard-nosed Lorenzo has managed these feats by first breaking unions at Continental Airlines in 1983 and by his unrelenting effort to blame Eastern Airlines’ troubles on his workers. They have already made $1.5 billion in wage concessions and, embittered, provided poor passenger service before they reluctantly went on strike Saturday.

Lorenzo, whose company owns both Continental and Eastern, seems to be waking unions up to the fact that if they don’t support each other in the pivotal Eastern battle, the strength of all unions will continue to diminish.

Despite labor’s impressive unity, the legal system is stacked in Lorenzo’s favor.

He could beat the Eastern strikers by declaring bankruptcy and dismantling the company, selling some parts and moving the rest elsewhere in his giant airline conglomerate. Or he could sell what’s left of Eastern.

Either way, though, it wouldn’t be much of a victory for him financially or even emotionally because he would be quitting the fight he started.

The law allows Lorenzo another alternative: continue to try to crush the unions by hiring enough strikebreakers to fly the planes and later sell the company at a higher price, giving him a more satisfying victory.

So far, that battle plan is failing. Most flights were called off Monday, and 5,000 workers were laid off temporarily, but Lorenzo hasn’t thrown in the towel yet.

And on Lorenzo’s side is not only President Bush, but some strange Supreme Court interpretations of federal labor law.

Stanford Prof. William B. Gould IV gets laughs out of students in his labor law classes when he poses an old conundrum about the right of workers to strike in this free society:

How is it possible for federal law to specifically say it is illegal for employers to punish workers who go on strike by “firing” them and at the same time say a company can “permanently replace” them?

The answer is simple, if inadequate: because 51 years ago--and again last week--the Supreme Court said so.

The legal puzzle Gould raises in his classes might be good for some cynical laughs, but it isn’t funny to strikers whose jobs have been taken by strikebreakers.

At Eastern, Lorenzo began hiring and training strikebreakers months before the International Assn. of Machinists went on strike to resist demands for more concessions with no assurance that they would gain a future at the airline.

The entire labor movement has joined the battle because even a Pyrrhic victory for Lorenzo could do more damage to unions than former President Reagan inflicted when he fired 11,000 striking air traffic controllers in 1981, serving as an influential model for employers who want to break strikes.

Reagan’s firing of the controllers was a cruel, disruptive action. But it was legal because the law prohibits strikes by federal workers such as the controllers.

Unlike Reagan, Lorenzo cannot fire his striking workers. But he legally can replace them permanently. And if he succeeds in this widely watched drama, more and more employers can be expected to join the anti-union crusade Reagan encouraged in the controllers’ strike.

Bush became part of that crusade when he backed Lorenzo by denying labor’s plea for a 60-day cooling-off period, thus allowing Lorenzo to get the strike he sought and slash everyone’s wages at once.

By siding with Lorenzo, Bush became the first President to refuse a request by federal mediators to order the cooling-off period in an airline dispute.

Maybe the Supreme Court has figured that somehow it would make workers feel better if they were not fired for exercising their legal right to strike and instead just were replaced permanently.

True, the court says “replaced” strikers have a better chance of getting another job in the same company than those who were flat-out fired--but that happens only if another job opens up.

The high court ruling 51 years ago said an employer cannot fire strikers but can “protect and continue his business” by keeping strikebreakers after a walkout is over and not making room for workers who went out on strike.

The Supreme Court decision last week affirmed the earlier ruling and, not unexpectedly, made it clear that a company can also keep union members who cross their own union’s picket line.

Both decisions make a mockery of the 1935 labor law that was supposed to give workers the legal right to strike without being punished for exercising that right.

Congress can unravel the legal conundrum by amending the law to make certain that its clear intent is carried out, providing a better balance between the rights of workers and employers in a labor dispute.

Rep. Joseph E. Brennan (D-Me.) has proposed a compromise to make the ability to strike more meaningful and still give employers a chance to ultimately force strikers to put their jobs on the line if no contract agreement is reached.

Brennan proposes that for the first 10 weeks of a strike, employers should not be allowed to permanently replace strikers. That’s a good starting point, but 10 weeks is not long enough.

Workers’ right to strike should be protected for one year before employers are allowed to offer permanent jobs to strikebreakers. At that point, almost all strikes either have been settled by negotiations or lost.

Maybe, as some contend, strikes now are almost obsolete as labor’s weapon of last resort. Last year, there were fewer strikes than in any of the previous 41 years.

Unions may have to use more consumer boycotts and work slowdowns and put more pressure on suppliers, banks and other companies that help struck companies.

But a bit more balance between labor and management must be restored by at least amending the law to make certain workers such as those at Eastern have a reasonable amount of time to exercise their legal right to strike without suffering the punishment of losing their jobs.