You Can't Bargain With A Striker Whose Job Is No More

Many companies know exactly what they think about the bill to ban permanent replacement workers in strikes, which the House of Representatives passed in mid-July. They see it as labor's attempt to use politics to regain the muscle it has lost at the bargaining table. True enough, unions are desperate to reverse their long slide. And the fear of losing their jobs has forced many union members to think hard before taking on management.

But the issue can't be so easily dismissed. At stake is a central tenet of the U. S. free-enterprise system. In 1935, the Wagner Act laid out rules on collective bargaining in order to govern conflict between labor and management. Key elements were the rights of workers to form unions and to strike--rights that mark the fundamental distinction between U. S. unions and the puppets found until lately in the East bloc.

The question labor raises is how taking away strikers' jobs differs from firing them, which everyone agrees is illegal. And in fact, the legal justification for permanent replacements is weak. Indeed, the U. S. Supreme Court has never directly addressed the question--much less answered it.

Current law stems from a 1938 Supreme Court case called National Labor Relations Board vs. Mackay Radio & Telegraph Co. The dispute didn't even involve permanent replacements per se. Instead, it was about Mackay's decision to move 11 nonstriking workers from its Los Angeles and Chicago offices to fill in for strikers in San Francisco. When 5 of the 11 wanted to stay after the walkout ended, Mackay fired five strikers.

DOUBLE-TALK? The union charged that management illegally discriminated against the strikers because of their union activity. The court agreed, forcing Mackay to rehire the strikers. But the court added that in cases where management has committed no illegal practices, the company "is not bound to discharge those hired to fill the place of strikers, upon the election of the latter to resume their employment, in order to create places for them."In short, you can't fire strikers, but you don't have to hire them back. That contradictory position, thrown out as an afterthought in a hypothetical statement, is the sole basis for the Supreme Court's stance on whether replacement workers conflict with the right to strike. The Court since has issued more than a dozen rulings on the subject, each time citing Mackay. "The Supreme Court has never addressed this question," says Charles B. Craver, a professor at George Washington University's law school. "I don't think it has ever done an adequate job of balancing the interests of employees and employers on this subject."

Nor can legal experts explain the difference. The best attempt seems to be the view that permanently replaced strikers haven't lost their rights completely. John S. Irving, a former general counsel of the NLRB who's now a management lawyer, points out that companies must give permanently replaced strikers first shot at new openings after the walkout ends. "And the vast majority of strikers are returned to their jobs by a preferential hiring list," he asserts.

Even if this were true, it doesn't explain why strikers should have to wait months or years to get their jobs back simply because they exercised a right. What's more, few strikers got their jobs back in the more prominent cases involving replacement workers (table).

Some managers argue that they're not penalizing employees for striking when they hire permanent fill-ins; they're just protecting the company's viability. But that boils down to an irrelevant question of intent. The striker has lost his or her job, no matter what reason managers give. "For most practical purposes, it's a distinction without a difference," says Paul C. Weiler, a professor at Harvard University Law School. "If a company discriminated against blacks or women and said: `We didn't fire them, we just permanently replaced them,' it would get laughed out of court."

Opponents say that the proposed law would tilt the balance between labor and management toward the unions. But everyone agrees that management can hire replacements. The issue is whether it should offer them a permanent job. If you take away strikers' jobs for good, unions can't surrender. They can't simply give in, accept concessions, and go back to work. With no alternative, unions try to destroy the company, as they did at Eastern Air Lines Inc. Negotiation becomes an all-out, bet-the-farm war--precisely what the collective bargaining process is supposed to avoid.

Most executives are loath to give unions any ground. But an honest look at permanent replacements leads to one view: take away strikers' jobs, and you take away their right to strike.

      Company          Year of               Back at
                       walkout   Strikers*   work *
      PHELPS DODGE      1983       1,700        0
      CHICAGO TRIBUNE   1985         825       90
      HORMEL            1985         900      266
      INTL. PAPER       1987       2,200      511
      EASTERN**         1989      16,900    1,613
      GREYHOUND         1989       5,600        0
      *Excluding those who crossed picket lines
      **Shut down 1/91DATA: BW
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