Book | Unions and Labor Standards

Employee Rights in a Changing Economy: The Issue of Replacement Workers

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A seminar volume • By Adrienne Marie Birecree, Charles Craypo, Jeff Faux, Richard Freeman, Julius Getman, William Gould IV, Cynthia Gramm, Carla Lipsig-Mummé, Ray Marshall, Lawrence Mishel, Brian Shell, William Spriggs, and Paul Weiler

The American system of free collective bargaining—which has served the economy so well for over half a century—is threatened by the expanding management practice of permanently replacing workers who go out on strike. If allowed to continue, this practice will produce negative social and economic effects for America.

The National Labor Relations Act explicitly gives employees the right to strike; it does not explicitly or implicitly give employers the right to permanently replace striking workers. But as a result a strike is essential of some tangential language (“dicta”) in a 1938 ruling that actually reinstated some striking workers (National Labor Relations Board v. Mackay Radio and Telegraph Co.), a legal argument has been constructed—reinforced by recent Supreme Court rulings—that permits employers to replace striking workers permanently, rather than just for the duration of the strike. This effectively punishes employees for exercising their rights within the law. The courts have thus abrogated legislative authority.

Both the theory and practice of modern labor relations recognizes that the threat of a work stoppage is the motivating force for both employer and employee to come to an agreement. It is also the reason that the overwhelming majority of labor-management disputes do not reach that stage. But the threat has little meaning if both employer and employee know that the latter can be fired for striking. Thus, the right to get one’s job back after a strike is essential to collective bargaining. Without that right, the negotiating power of management becomes so strong that it precludes serious negotiation. The result—as we experienced in the earlier years of American industrialization—is that labor–management tension erupts into class conflict and violence, precisely the conditions that the Railway Labor Act and the National Labor Relations Act were designed to eliminate.

Among the economic consequences of permitting employers to fire striking workers is that it will encourage American business and government to respond to the new international competitive environment by attempting to lower wages and health benefits (almost four out of five strikes since 1980 were over health benefits) and safety and other workplace standards, rather than by raising innovation and increasing productivity and quality.

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