Ban on Permanent Substitutes Needed
The number of strikes in this country has declined dramatically, but more employers seem to be trying to reverse that trend themselves by provoking walkouts that they believe they can win.
The National Labor Relations Board is investigating and holding hearings on charges that three highly publicized strikes were instigated by management: the walkouts at Greyhound Lines Inc., the Chicago Tribune and its subsidiary, the New York Daily News.
The final outcome of the disputes at the three companies will depend at least in part on the results of the legal battles before the NLRB, and the decisions could also have a major impact on many other similar disputes over the increasing practice of companies to hire non-union workers to permanently replace strikers.
Regardless of the outcome of the three cases, though, only Congress can stop the shameful employer tactic of permanently replacing workers who exercise their right to strike. Legislation is pending in Congress to do just that, although if it passes, it faces a certain veto by President Bush.
The tactic of instigating strikes comes as the number of strikes by workers seeking to improve their wages and benefits is at an all-time low.
So far this year, 28,000 union contracts were negotiated, and just 711, or 2.6%, involved strikes, which are labor’s weapons of last resort and normally occur infrequently.
These days, however, they are occurring less often than before because of everything from improved labor-management cooperation in some cases to weaker unions and pro-management laws that discourage walkouts in others.
Unfortunately, this relatively strike-free era doesn’t sit well with all companies.
Too many employers now see strikes, not dialogue over economics, as their own weapons of first choice in labor disputes, and they are provoking walkouts themselves to take advantage of a longstanding but once rarely used interpretation of federal labor law.
If unions can be pushed into calling a strike, management cannot legally fire them. The right to strike is sacred here, you see.
But of all industrialized nations, only in the United States and South Africa is it legal for employers to fire strikers by using a euphemism. They can tell strikers they have not been fired but rather have been permanently replaced by lower-paid, non-union workers.
Permanent replacements for strikers were hired in 30% of strikes last year, a record number.
The labor laws, though, have a Catch-22 that the NLRB is examining in the three cases before it.
The law does not allow a company to commit an unfair labor practice to instigate a walkout. If it does, then the walkout is deemed by the NLRB to be an “unfair labor practice strike” and the employer can be ordered to rehire the strikers and pay them for lost time.
And in some instances, the workers hired as permanent replacements can go to court and try to collect money on grounds that they were told that their jobs as strikebreakers were permanent.
Companies can often avoid such payment to “permanent replacements” by making sure they have not promised that the jobs will be permanent.
Also, even if a company does ultimately lose its case, it can take years and be enormously expensive, and employers can almost always afford the money and time more than workers can.
Employers often figure that it is worth the time and money to do battle on the issue if they can end up drastically reducing wages, benefits and other labor costs, and operating union-free.
The Greyhound case before the NLRB could be an exception and a disaster for the company, which, ironically, is represented by Rosemary Collyer, former NLRB general counsel.
Greyhound faces unfair labor practice charges similar to those Collyer herself filed against the Chicago Tribune when she was with the NLRB.
Nearly 6,000 drivers and other Greyhound workers struck the company almost a year ago and were “permanently replaced” by strikebreakers.
The NLRB’s new general counsel, Jerry Hunter, has ruled that the company illegally precipitated the strike, which could make Greyhound liable for $85 million or more in back pay to the strikers because they struck to protest the company’s unfair labor practices and not just to improve their wages and working conditions.
Hunter also alleged that Greyhound unlawfully fired strikers because of their union activities and that company guards coerced the workers by throwing rocks at them.
Greyhound is in Chapter 11 bankruptcy protection and will offer a reorganization plan that it hopes its creditors and the court will approve.
But with millions at stake in the case before the NLRB, creditors may prefer an alternative being developed by the Blackstone Group, a New York investment banking firm working with the Amalgamated Transit Union to buy the bus line.
Collyer is convinced that her successor, Hunter, is wrong and that Greyhound will ultimately win its case on appeal.
The Chicago Tribune and the New York Daily News also face enormous financial liabilities if they are found guilty of illegally and deliberately provoking the strikes against them so they could hire permanent replacements.
But defeats for the newspapers in the NLRB cases won’t necessarily make for a happy ending for all of the strikers. The News may just shut down if it fails in its effort to operate on the cheap with permanent replacements. And even if the Tribune were forced to pay the strikers back wages, it would only have to reinstate as many workers as needed under current, company-imposed staffing levels, and there would be no union contracts in effect.
Those newspaper cases, however, could end up as excellent reasons for Congress to act soon to forbid or limit the permanent replacement of strikers, since it makes a mockery of Americans’ right to strike without fear of being fired.
