By Julius Getman
Professor of Law, University of Texas
The National Labor Relations Act (NLRA) was passed in 1935 with the express goal of “encouraging the practice and procedure of collective bargaining by protecting the exercise by workers of full freedom of association." That purpose has never been disavowed and the quoted language remains in place. From its passage until today the act also has had special language proclaiming the importance of “the right to strike.” Unfortunately the law has never fully lived up to its promise and today, far from protecting the rights of workers, our labor laws constitute a massive impediment to the basic rights to organize, bargain collectively and strike.
For example, the union election process under the National Labor Relations Act, originally intended to guarantee the right to self organization, has been transformed by judicial interpretation into a process that makes it easy for management to resist unionization, through captive audience speeches and misleading propaganda. The elections process is absurdly one sided even if the employer avoids threats and retaliation. Under the law, management has complete and constant access to employees and the union does not have the opportunity to even state its case during working hours. And employers can almost always violate the law through threats and acts of reprisal with impunity. The right to strike, crucial to the act’s stated goal of eliminating “inequality of bargaining power,” has been consistently weakened by Congress, the National Labor Relations Board (NLRB) and the courts. Many strikes are now illegal and even where strikes are theoretically protected by law, exercise of the right carries with it the risk of permanent replacement.
We need comprehensive labor law reform that will make good the act's basic goals of protecting free choice and guaranteeing an effective right to strike. To guarantee that employee choice, once made, will be decisive, liberal members of Congress, together with representatives of the union movement, have drafted the Employee Free Choice Act, which would largely replace the NLRA’s unfair election system through a sign-up system (card-check recognition). The passage of the Employee Free Choice Act is understandably labor’s primary legislative goal. And all of the candidates for the Democratic Party’s presidential nomination have pledged to support it.
Valuable as the Employee Free Choice Act’s passage would be, organized labor needs to give equal weight to restoring the right to strike. This can be achieved easily through a law requiring that strikers are entitled to their jobs at the conclusion of a strike. Attempts to hire permanent replacements should be illegal. Such a statute is necessary because under current law the right to strike is so weak that provoking a strike is often a management tactic in collective bargaining. If an employer can, by demanding unreasonable concessions, force a union to strike, the employer can permanently replace the strikers and look forward with assurance to the decertification of the union. This technique was widely used by union-busting employers during the 1980s and, as a result, use of the strike weapon by unions today is rare. When unions are fearful of striking, the collective bargaining process is inevitably undermined. For equality of bargaining power to exist, management must fear the strike and structure its bargaining positions so as to avoid it. The desire of both sides to avoid costly strikes is what fuels properly balanced collective bargaining.
The current vulnerable state of strikers effects organizing. In every anti-union campaign employers tell employees if they vote to form a union, they may be forced to strike, and if they strike, they may be permanently replaced. It is easy to understand why fear of being replaced permanently would motivate a worker to either refuse to sign up or to vote against representation.
There is another reason why it is vital for labor to make a striker replacement law a top priority—keeping faith with the rank-and-file members who go on strike and under the best of circumstances forfeit their pay and sacrifice their lifestyle to support the union. When strikers, who behave precisely as the law contemplates, are permanently replaced, the result often is devastation of lives, families and communities. If anyone thinks I am exaggerating, they would do well to visit the Maine communities of Jay and Livermore Falls, both paper-making towns. Twenty years ago, workers at the nearby Androscoggin Mill, faced with demands for massive concessions by the International Paper Co. (IP), at a time of record profits, reluctantly went on strike. As it threatened, IP hired scabs to replace virtually its entire papermaking workforce. Despite a long heroic effort by the local union, the strike was lost. The strikers were permanently replaced and the union soon decertified. The bitterness, the divisions and the sense of loss are still almost palpable in this once proud hard-working community.
The Jay strike shows another more positive way the importance of the strike weapon to the labor movement. Recently, the International Paper Co. and the United Steelworkers (USW) concluded a major agreement, which will secure the status of the union at IP’s other mills and provide job security for its workers. That agreement would not have been possible without the inspiring struggle of the Jay strikers. Richard LaCosse, vice president of the USW who negotiated the agreement, told me IP was eager to avoid a battle of the magnitude it faced in the 1987 strike. The Steelworkers union is to be commended for its steadfast support of IP’s workers. But it is sad to realize that the one group of paperworkers who will not benefit from this new agreement are the strikers, who by courage, struggle and solidarity made it possible.
Julius Getman, professor of law at the University of Texas and pre-eminent scholar in the field of labor law, is author of the labor novel and an upcoming book to be published by Yale Press, Revitalizing the Labor Movement, which will examine why unions are necessary for the health of this nation and the labor law changes needed for the union movement to flourish.
