HRM 4570 ILR Homework 2
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13HRM4570ILRCh8.11ImpasseStrikesOnlineLecture2019-20audio.pptxChapter 8 Part 1
Impasse and Strikes
Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.
McGraw-Hill/Irwin
Hi Class, Welcome to Industrial and Labor Relations. Today we are going to discuss Chapter 8 Part 1 Impasse and strikes
The primary goal of the bargaining process is for labor and management negotiators to reach an agreement on the terms and conditions of employment, usually in the form of a written contract. Sometimes, however, negotiations are unsuccessful and impasses are reached. This chapter outlines what happens when impasses occur, and the alternative methods for their resolution.
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1. Explore options for resolving bargaining disputes and impasses.
2. Understand different types of strikes and lockouts, their roles in labor relations, and their legal restrictions in the private and public sectors.
3. Discuss the controversies surrounding the use of strike replacements.
Learning Objectives
The Learning objectives are
1. Explore options for resolving bargaining disputes and impasses.
2. Understand different types of strikes and lockouts, their roles in labor relations, and their legal restrictions in the private and public sectors.
3. Discuss the controversies surrounding the use of strike replacements.
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4. Identify other types of pressure tactics beyond strikes and lockouts and why they are being used more frequently than in the past.
5. Compare the major third-party dispute resolution mechanisms (mediation, arbitration, and fact-finding) and their strengths and weaknesses.
Learning Objectives
4. Identify other types of pressure tactics beyond strikes and lockouts and why they are being used more frequently than in the past.
5. Compare the major third-party dispute resolution mechanisms (mediation, arbitration, and fact-finding) and their strengths and weaknesses.
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In bargaining process, negotiators do not have to reach an agreement
The National Labor Relations Act (NLRA) states that the good faith bargaining obligation “does not compel either party to agree to a proposal or require the making of a concession” [Section 8(d)].
Introduction
In the bargaining process, especially as it pertains to negotiating a union contract that specifies wages, benefits, and other terms and conditions of employment, negotiators do not have to reach an agreement.
The National Labor Relations Act (NLRA) specifically states that the good faith bargaining obligation “does not compel either party to agree to a proposal or require the making of a concession” [Section 8(d)].
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A bargaining impasse can occur when labor and management negotiators fail to agree on a mutually acceptable terms and conditions of employment
Bargaining impasses are rare
Introduction
A bargaining impasse can occur when labor and management negotiators fail to agree on a mutually acceptable terms and conditions of employment
Bargaining impasses are rare
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Bargaining disputes or impasses and methods for their resolution are central topics in labor relations for several reasons:
Possibility of a bargaining dispute underlies all labor negotiations because the threat of economic weapons can be used to make additional concessions
Bargaining in good faith to an impasse fulfills each side’s legal bargaining obligation
Introduction
Bargaining disputes or impasses and methods for their resolution are central topics in labor relations for several reasons:
The possibility of a bargaining dispute underlies all labor negotiations because the threat of strikes, lockouts, and other pressure tactics—also known as economic weapons—can be used to try to force the other side to make additional concessions at the bargaining table.
Bargaining in good faith to an impasse fulfills each side’s legal bargaining obligation. This is significant because the employer is then free to implement the terms of its final offer even over the objection of the union.
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Major strikes can have devastating consequences for workers, employers, and the public
Some dispute resolution methods can be used before an impasse is reached and others are designed to prevent an impasse from occurring
The method used to resolve bargaining disputes is a defining feature of different labor relations systems or laws
Introduction
Even though infrequent, major strikes can have devastating consequences for workers, employers, and the public and are therefore important to understand. Companies can lose customers and profits and see their stock prices decline; public sector agencies can lose the support of taxpayers and voters; workers can lose income and face severe emotional and financial strain, including struggling to pay for food and rent; communities might be divided and suffer economic losses; and the public can be deprived of important goods, services, and sources of transportation.
Some dispute resolution methods can be used before an impasse is reached (especially mediation), and others are designed to prevent an impasse from occurring (especially arbitration); thus their significance is greater than a low dispute rate might otherwise indicate.
The method used to resolve bargaining disputes is a defining feature of different labor relations systems or laws.
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After a lengthy negotiation involving a series of contract changes agreed to by management and the union, General Soft Drinks refused to make any further changes to the contract even though the union was ready to strike. The parties are:
A. committing an unfair labor practice in violation of the NLRA
B. negotiating in bad faith
C. at a bargaining impasse
D. ready for final and binding arbitration
Let’s work on a practice question. After a lengthy negotiation involving a series of contract changes agreed to by management and the union, General Soft Drinks refused to make any further changes to the contract even though the union was ready to strike. The parties are:
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After a lengthy negotiation involving a series of contract changes agreed to by management and the union, General Soft Drinks refused to make any further changes to the contract even though the union was ready to strike. The parties are:
A. committing an unfair labor practice in violation of the NLRA
B. negotiating in bad faith
C. at a bargaining impasse
D. ready for final and binding arbitration
That’s right. They are at a bargaining impasse.
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Categories of disputes in labor relations
Interest disputes
Rights disputes
Introduction
There are two broad categories of disputes in labor relations: interest disputes and rights disputes.
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Interest disputes: Pertain to conflicts of interest
Higher wages versus lower labor costs
Seniority-based layoffs versus merit-based layoffs
Broad union input into managerial issues versus strict management rights to conduct business without interference
Introduction
Interest disputes pertain to conflicts of interest like, higher wages (the employees’ interest) versus lower labor costs (the employer’s interest), seniority-based layoffs versus merit-based layoffs, broad union input into managerial issues versus strict management rights to conduct business without interference. These conflicts of interest are the focus of contract negotiations which result in specific contractual terms after compromises. Compromises on these conflicts result in specific contractual terms—a wage and benefits package and language governing layoffs and management rights, for example.
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Rights disputes - Disagreements over whether someone’s rights have been violated
Specified in the union contract
These rights are grievances
Conflicts over the application and interpretation of a contract
Introduction
In contrast, rights disputes are disagreements over whether someone’s rights have been violated. In labor relations, these rights are specified in the union contract. Rights disputes are therefore grievances, that is, conflicts over the application and interpretation of a contract.
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Which of the following is not an interest dispute? A. Wage levels B. Seniority based layoff systems C. Whether a particular employee has been properly disciplined D. Whether employees should participate in management decision making
MCQ
Let’s try one more practice question. Which of the following is not an interest dispute?
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Which of the following is not an interest dispute? A. Wage levels B. Seniority based layoff systems C. Whether a particular employee has been properly disciplined D. Whether employees should participate in management decision making
MCQ
That’s right. The answer is C. Whether a particular employee has been properly disciplined
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A strike occurs when employees refuse to work until an employer changes position on one or more issues
An expression of protest and dissatisfaction
Frequently intended to pressurize an employer
By withholding their labor:
Strikers seek to increase the employer’s cost of disagreement by depriving the employer of profits (private sector)
The ability to satisfy the demands of taxpayers and voters (public sector).
Strikes and Lockouts
Strikes occur when employees refuse to work until an employer changes its position on one or more issues.
A strike is fundamentally an expression of protest and dissatisfaction,
but it is also frequently intended to pressure an employer; by withholding their labor,
strikers seek to increase the employer’s cost of disagreement by depriving the employer of profits (private sector)
or the ability to satisfy the demands of taxpayers and voters (public sector).
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Types of strikes
Economic strike: Employees might strike to win better wages, benefits, and work rules
Stem from bargaining impasses over mandatory bargaining items when union contracts are being negotiated
The most frequent form of strike is the economic strike
Strikes and Lockouts
There are a variety of reasons why employees might strike, so there are a number of different types of strikes
Economic strike—when employees strike to win better wages, benefits, and work rules;
such strikes stem from bargaining impasses over mandatory bargaining items when union contracts are being negotiated.
The most frequent form of strike is the economic strike
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Lockout: An employer-initiated rather than worker-initiated work stoppage during a bargaining impasse
An employer tells the workers not to return until they agree to the employer’s terms
Strikes and Lockouts
Lockout—an employer-initiated rather than worker-initiated work stoppage during a bargaining impasse; in a lockout,
an employer tells the workers not to return until they agree to the employer’s terms; in an economic strike, workers refuse to work until their terms are met.
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Unfair labor strike: A strike to protest an employer’s unfair labor practice
Strikes and Lockouts
Los Angeles, December 16, 2015—With signs held high and chants ringing across store parking lots, El Super workers at seven locations in Southern California went on strike over recent unfair labor practices (ULPs).
The strikers, members of the United Food and Commercial Workers (UFCW), are protesting violations of their rights and U.S. labor law requiring the company to bargain in good faith.
Unfair labor practice strike refers to a strike to protest an employer’s unfair labor practice.
Here is one example of unfair labor strike. Los Angeles, December 16, 2015—With signs held high and chants ringing across store parking lots, El Super workers at seven locations in Southern California went on strike over recent unfair labor practices (ULPs).
The strikers, members of the United Food and Commercial Workers (UFCW), are protesting violations of their rights and U.S. labor law requiring the company to bargain in good faith.
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Recognition strike - If employees are striking to force an employer to recognize and bargain with their union
Strikes and Lockouts
Recognition strike—when employees strike to force an employer to recognize and bargain with their union.
On February 1, 1968, two Memphis garbage collectors, Echol Cole and Robert Walker, were crushed to death by a malfunctioning truck. Eleven days later, frustrated by the city’s response to the latest event in a long pattern of neglect and abuse of its black employees, 1,300 black men from the Memphis Department of Public Works went on strike. Sanitation workers, led by garbage-collector-turned-union-organizer T. O. Jones, and supported by the president of the American Federation of State, County, and Municipal Employees (AFSCME), Jerry Wurf, demanded recognition of their union, better safety standards, and a decent wage. The Memphis sanitation strike is an example of recognition strike.
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Sympathy strike - Striking to support other workers who are on strike
Wildcat strike - Most union contracts contain a no-strike clause prohibiting work stoppages over grievances during the life of the contract
Jurisdictional strike - When a union strikes to force an employer to assign certain work to its members
Strikes and Lockouts
Sympathy strike occurs when employees strike to support other workers who are on strike (for example, by not crossing their picket line).
Wildcat strikes—most union contracts contain a no-strike clause prohibiting work stoppages over grievances during the life of the contract, and such strikes are therefore called wildcat strikes; grievance arbitration is typically used instead of wildcat strikes.
Jurisdictional strike occurs when a union strikes to force an employer to assign certain work to its members.
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When employees go out on strike without the authorization of the union, it is called a:
A. Secondary strike B. Unfair labor practice strike C. Economic strike D. Wildcat strike
Question 1
Let’s try a few practice questions. When employees go out on strike without the authorization of the union, it is called a:
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When employees go out on strike without the authorization of the union, it is called a:
A. Secondary strike B. Unfair labor practice strike C. Economic strike D. Wildcat strike
Question 1
That’s right. The answer is D. Wildcat strike
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Question 2 California Faculty Association: Why We're Going on Strike
Please click on the video and watch the California faculty strike. Which type of strike is it?
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Economic strike
Question 2 California Faculty Association: Why We're Going on Strike
That’s right. It’s an economic strike. Professors strike to win better wages, benefits, and work rules.
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Question 3 Verizon Workers Strike
Please click on the video and watch the Verizon workers strike. Which type of strike is it?
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Economic strike
Question 3 Verizon Workers Strike
That’s right. It’s an economic strike. Employees strike to win better wages, benefits, and work rules.
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Question 4 UAW Strike
Please click on the video and watch the UAW strike. Which type of strike is it?
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Unfair labor practice strike
Question 4 UAW Strike
That’s right. It’s Unfair labor practice strike. They protest their employer’s unfair labor practice.
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Question 5 Los Angeles teachers’ strike
Please click on the video and watch the Los Angeles teachers’ strike. Which type of strike is it?
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Economic strike
Question 5 Los Angeles teachers’ strike
That’s right. It’s an economic strike. Teachers strike to win better wages, benefits, and work rules.
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The legal treatment of strikes
Economic strikes and unfair labor practice strikes are protected by Section 7 of the NLRA
Workers cannot be disciplined or discharged for participating in these types of strikes—to do so would be a Section 8(a)(1) unfair labor practice.
Permissive items are outside the boundaries of the NLRA, so strikes over these issues are not protected, and workers can be fired for participating in such a strike.
Strikes and Lockouts
Economic strikes and unfair labor practice strikes are protected by Section 7 of the NLRA;
workers cannot be disciplined or discharged for participating in these types of strikes—to do so would be a Section 8(a)(1) unfair labor practice.
Permissive items are outside the boundaries of the NLRA, so strikes over these issues are not protected, and workers can be fired for participating in such a strike.
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The legal treatment of strikes
Strikes over grievances are considered protected activity under the NLRA, but no- strike clauses in union contracts frequently forfeit this protection; as such, employees who participate in wildcat strikes can often be disciplined.
Jurisdictional strikes are prohibited by the NLRA, so unions can be ordered to cease and desist from such strikes
U.S. public policy sees striking as an economic activity to pursue things like higher wages rather than a civil liberty rooted in freedom of association.
Strikes and Lockouts
Strikes over grievances are considered protected activity under the NLRA, but no- strike clauses in union contracts frequently forfeit this protection; as such, employees who participate in wildcat strikes can often be disciplined.
Jurisdictional strikes are prohibited by the NLRA, so unions can be ordered to cease and desist from such strikes.
Because of the various limitations on the right to strike, including the legality of permanent strike replacements, U.S. public policy sees striking as an economic activity to pursue things like higher wages rather than a civil liberty rooted in freedom of association.
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The legal treatment of strikes
All types of strikes are more likely to be illegal when conducted by government employees.
Strikes by federal government workers are prohibited
Prohibiting public sector strikes is rooted in several traditional beliefs:
Striking against the government is an unacceptable threat to the supreme authority of the government,
Public sector employee bargaining power is too high because there are no market-based checks on their demands
Government services are too critical to be interrupted.
Strikes and Lockouts
All types of strikes are more likely to be illegal when conducted by government employees.
Strikes by federal government workers are prohibited
Prohibiting public sector strikes is rooted in several traditional beliefs:
Striking against the government is an unacceptable threat to the supreme authority of the government,
Public sector employee bargaining power is too high because there are no market-based checks on their demands
Government services are too critical to be interrupted.
A number of states not only prohibit all strikes but also specify penalties for violators. New York’s Taylor law, for example, imposes a “two for one” strike penalty—for each day workers are on strike, they lose their pay for the day plus a fine equal to their day’s pay.
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National emergency strikes
The Railway Labor Act empowers the president of the United States to create a presidential emergency board if a strike would “threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service”
Strikes and Lockouts
National Emergency Strikes
Because of the vital importance of railroads for the early 20th century economy, the Railway Labor Act empowers the president of the United States to create a presidential emergency board if a strike would “threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service” (Section 10).
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A presidential emergency board has 30 days to investigate the dispute and issue a report, which contains nonbinding recommendations for settlement
After the report is issued, a strike can occur after a 30-day cooling-off period
When the president believes that a strike or threatened strike “will imperil the national health or safety,” a board of inquiry to investigate and report on the disputed issues can be appointed
Strikes and Lockouts
A presidential emergency board has 30 days to investigate the dispute and issue a report, which typically contains nonbinding recommendations for a settlement; after the report is issued, a strike can occur after a 30-day cooling-off period.
For the private sector more generally, the 1947 Taft–Hartley Act amendments to the NLRA created provisions for settling national emergency strikes following the Great Strike Wave of 1945–1946.
When the president believes that a strike or threatened strike “will imperil the national health or safety,” she or he can appoint a board of inquiry to investigate and report on the disputed issues (Section 206).
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Upon receipt of this report, the president can seek a court-ordered injunction halting the strike or threatened strike for up to 80 days
NLRA provide for boards of inquiry in health care industry if strike would “substantially interrupt the delivery of health care in the locality concerned”
Strikes and Lockouts
Upon receipt of this report, the president can seek a court-ordered injunction halting the strike or threatened strike for up to 80 days.
Additional changes to the NLRA in 1974 provided for boards of inquiry in the health care industry if a strike would “substantially interrupt the delivery of health care in the locality concerned” (Section 213).
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The NLRA and Railway Labor Act emergency procedures are not always successful in resolving bargaining disputes
Most work stoppages are economic strikes or lockouts
Strikes and Lockouts
The NLRA and Railway Labor Act emergency procedures are not always successful in resolving bargaining disputes
The most frequent form of strike is the economic strike—a work stoppage stemming from a bargaining impasse over mandatory bargaining items during negotiations for a union contract.
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Public sector strikes are often not allowed in part because it is believed that they have the potential to seriously harm the public interest.
True or False
Let’s try some practice questions. Public sector strikes are often not allowed in part because it is believed that they have the potential to seriously harm the public interest. True or False ?
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Public sector strikes are often not allowed in part because it is believed that they have the potential to seriously harm the public interest.
True or False
TRUE
The answer is true.
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Oshkosh Corporation is a large manufacturer of military vehicles used in Afghanistan. If Oshkosh Corporation workers went out on strike and the President believed that this strike presented a significant threat to the nation's safety, he could do all of the following except:
A. Discharge the strikers and replace them with new workers
B. Appoint a board of inquiry to investigate the labor dispute
C. Seek a court-ordered injunction preventing the strike
D. Ask Congress to legislate a settlement to the strike
Oshkosh Corporation is a large manufacturer of military vehicles used in Afghanistan. If Oshkosh Corporation workers went out on strike and the President believed that this strike presented a significant threat to the nation's safety, he could do all of the following except which one:
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Oshkosh Corporation is a large manufacturer of military vehicles used in Afghanistan. If Oshkosh Corporation workers went out on strike and the President believed that this strike presented a significant threat to the nation's safety, he could do all of the following except:
A. Discharge the strikers and replace them with new workers
B. Appoint a board of inquiry to investigate the labor dispute
C. Seek a court-ordered injunction preventing the strike
D. Ask Congress to legislate a settlement to the strike
That’s right. The answer is A. Discharge the strikers and replace them with new workers
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Work stoppages have negative effects:
Decline in productivity
Loss of profits
Fall in stock prices
Loss of income for workers and stress
Strikes and Lockouts
Work stoppages have negative effects which are generally confined to the specific employer and workers involved in the strike. Some of the negative effects include the following:
Productivity declines
Profits are lost
Stock prices fall
Workers lose income and suffer from stress
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A key aspect of a strike is a picket line
Strikers, their leaders, and supporters march outside struck employer’s locations to publicize their dispute
Convince the public not to patronize the business and workers not to cross the picket line
Create solidarity among the strikers
Build support for their cause
Strikes and Lockouts
A key aspect of a strike is a picket line
Strikers, their leaders, and supporters march outside struck employer’s locations to publicize their dispute
Picketing convinces the public not to patronize the business and workers not to cross the picket line
Picketing creates solidarity among the strikers
Picketing builds support for their cause
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Union protesters picket Walmart
What is picketing? Please click on the video and watch union protesters picketing in front of a Walmart store.
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In economic and unfair labor practice strikes, picketing is legal but with some legal limitations.
Picket line misconduct such as violence or vandalism is not protected by the NLRA
result in discipline and loss of recall rights at the end of the strike
potential criminal prosecution
mass picketing that blocks entrances to an employer’s property is also illegal
Injunctions by state courts are still used to restrain picketing
Strikes and Lockouts
In economic and unfair labor practice strikes, picketing is legal but with some legal limitations.
Picket line misconduct such as violence or vandalism is not protected by the NLRA and can therefore result in discipline and loss of recall rights at the end of the strike, as well as potential criminal prosecution; moreover, mass picketing that blocks entrances to an employer’s property is also illegal.
Injunctions by state courts are still used to restrain picketing, and it is not unusual for an injunction to limit the number of picketers at each entrance to an employer’s property.
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Picketing raises several other important issues:
Employees who want to work instead of strike and therefore cross their own union’s picket line
Gives rise to sympathy strikes
The refusal to cross another union’s picket line
Picketing to pressure an employer to recognize a union is explicitly limited by the NLRA to 30 days
The legality of picketing becomes complex when more than one employer is involved.
Strikes and Lockouts
Picketing raises several other important issues:
There are employees who want to work instead of strike and therefore cross their own union’s picket line; legally employees are allowed to do this; unions have the right to discipline union members who cross a picket line, but union members also have the right to resign from the union and thus avoid discipline; discipline can consist of being expelled from the union and being assessed reasonable fines.
Picketing gives rise to sympathy strikes—the refusal to cross another union’s picket line; sympathy strikes are protected by the NLRA, but sympathy strikers can be replaced; moreover, a no-strike clause in a union contract might waive this protection.
Picketing to pressure an employer to recognize a union is explicitly limited by the NLRA to 30 days [Section 8(b)(7)(C)]; recognition strikes are legal, but after 30 days such strikes typically cannot also include picketing (though there are some exceptions); U.S. labor law seeks to discourage recognition strikes by making the certification election process available to employees but recognition strikes are nevertheless allowed.
The legality of picketing becomes complex when more than one employer is involved.
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The decline in strike activity
The U.S. strike activity in the early 21st century is at an all-time low
In 2008, the days lost due to strikes involving at least 1,000 workers amounted to 1/100th of 1 percent of total working days
Strike rates for all negotiations are less than 1 percent in recent years
Strikes and Lockouts
The decline in strike activity
The U.S. strike activity in the early 21st century is at an all-time low
Relative to the total economy, the number of working days lost because of strikes is minuscule. In 2008, the days lost due to strikes involving at least 1,000 workers amounted to 1/100th of 1 percent of total working days
Strike rates for all negotiations are even lower—perhaps even less than 1 percent in recent years.
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Figure 8.1 - U.S. Major Strikes (1,000 workers or more) 1950 - 2008
As shown in Figure 8.1 - U.S. Major Strikes (1,000 workers or more) 1950 – 2008/ Major strikes and lockouts plummeted from 187 in 1980 to 15 in 2008
This sharp decline in U.S. strike activity since 1980 begs the question of why strikes occur.
If the economy is strong, employees are not worried about losing their jobs, and replacement employees are difficult to find, the threat of a strike might be more viable than in a weak economy with significant anxiety about job loss and with many available replacements.
Bargaining power and the threat of a strike should affect the extent to which bargaining outcomes favor labor or management, but not the occurrence of strikes.
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Strike activity has declined since 1980 because labor’s bargaining power has declined
Bargaining power depends on the strength of the strike threat
Bargaining power and the threat of a strike should affect the extent to which bargaining outcomes favor labor or management but not the occurrence of strikes
Strikes and Lockouts
Strike activity has declined since 1980 because labor’s bargaining power has declined
Bargaining power depends on the strength of the strike threat
Bargaining power and the threat of a strike should affect the extent to which bargaining outcomes favor labor or management but not the occurrence of strikes
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Strike replacements - Employees used or hired to do the work of individuals on strike
Permanent strike replacements: Workers who continue in their positions after the strike ends
Temporary strike replacements - Workers who are discharged at the end of the strike
Strike Replacements
Employees used or hired to do the work of individuals on strike are called strike replacements.
Permanent strike replacements are workers who continue in their positions after the strike ends
Temporary strike replacements are workers who are discharged at the end of the strike
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The rat (named 'Scabby') represents strike-breaking replacement workers, otherwise known as 'scabs'.
Strike Replacements
A strikebreaker (sometimes derogatorily called a scab, blackleg, or knobstick) is a person who works despite an ongoing strike. Strikebreakers are usually individuals who are not employed by the company prior to the trade union dispute, but rather hired after or during the strike to keep the organization running. "Strikebreakers" may also refer to workers (union members or not) who cross picket lines to work.
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The Court ruled that employers can hire permanent strike replacements—replacement workers who continue in their positions after the strike ends—as well as temporary strike replacements who are discharged at the end of the strike;
This is known as the Mackay doctrine
Strike Replacements
NLRB v. Mackay Radio and Telegraph Co.
Less than three months after the NLRA was signed into law in 1935, a number of telegraph operators for the Mackay Radio and Telegraph Company went on strike in San Francisco. An unfair labor practice charge was filed with the National Labor Relations Board (NLRB) alleging that the company violated the NLRA by discriminating against these five strikers for their active participation in the union and the strike.
In one of its earliest decisions pertaining to the NLRA, the Supreme Court in 1938 ruled against the Mackay Radio and Telegraph Company and found it guilty of discriminating against five union activists who were part of the strike; however, the Court emphasized that the key illegal act was singling out union activists.
The Court ruled that employers can hire permanent strike replacements—replacement workers who continue in their positions after the strike ends—as well as temporary strike replacements who are discharged at the end of the strike; this is known as the Mackay doctrine after the famous 1938 decision, NLRB v. Mackay Radio and Telegraph Co.
Strikers who have been permanently replaced are not necessarily entitled to immediate reinstatement to their jobs after they end their strike but they cannot be fired in the literal sense—to do so would violate the NLRA’s ban on discharging workers for engaging in protected activity [Sections 8(a)(1) and 8(a)(3)].
As a practical matter, the status of temporary or permanent replacements is determined by what the employer tells the replacement workers when they are hired; if disputes arise later, the employer must prove that the replacements were told they were permanent; otherwise they will be considered temporary and must be terminated when strikers make an unconditional offer to return to work.
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Replacement workers in unfair labor practice strikes
The Mackay doctrine establishes legality of using permanent strike replacements in economic strikes
Other court decisions have determined that employers cannot use permanent replacements during an unfair labor practice strike
Unfair labor practice strikers are entitled to immediate reinstatement
Strike Replacements
Replacement Workers in Unfair Labor Practice Strikes
The Mackay doctrine clearly establishes the legality of using permanent strike replacements in economic strikes,
but other court decisions have determined that employers cannot use permanent replacements during an unfair labor practice strike.
Unfair labor practice strikers are therefore entitled to immediate reinstatement and as a result, striking workers commonly claim that they are engaged in an unfair labor practice strike, but it is up to the NLRB to make that determination.
If an unfair labor practice has “anything to do with” causing a strike or if it appears that the employer’s unlawful conduct played a part in the employees’ decision to strike, then the strike is an unfair labor practice strike.
An employer’s unfair labor practice during an economic strike can convert it to an unfair labor practice strike.
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Replacement workers in lockouts
A lockout is initiated by the employer rather than the employees
Defensive lockouts - Occur when an employer locks out employees to prevent losses from an expected strike
Offensive lockouts - Occur when an employer takes the initiative to pressure the union for a more favorable settlement
Strike Replacements
Replacement Workers in Lockouts
A lockout is initiated by the employer rather than the employees
It is useful to distinguish between defensive and offensive lockouts—a defensive lockout occurs when an employer locks out employees to prevent losses from an expected strike; in contrast,
an offensive lockout occurs when an employer takes the initiative to pressure the union for a more favorable settlement. A common reason for offensive lockout is to control the timing of the work stoppage.
To maintain a balance between employees and employers, hiring permanent replacements is not allowed
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Replacement workers in lockouts
Both defensive and offensive lockouts are legal as long as they protect or support employers’ bargaining positions.
Lockouts are not legal if they are overly aggressive and appear to be an attempt to destroy the union.
Employers can use temporary replacements during lockouts
To maintain a balance between employees and employers, hiring permanent replacements is not allowed
Strike Replacements
Both defensive and offensive lockouts are legal (assuming an absence of illegal actions like surface bargaining) as long as they protect or support employers’ bargaining positions.
Lockouts are not legal if they are overly aggressive and appear to be an attempt to destroy the union.
Employers can use temporary replacements during lockouts—this has been interpreted as legitimate support of a bargaining position.
However, to maintain a balance between employees and employers, hiring permanent replacements is not allowed; this would be too destructive of employee rights—an employer could lock out employees against their wishes, hire permanent replacements, and decertify the union.
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Efforts to ban permanent strike replacements
Banning the use of permanent strike replacements was the labor movement’s top legislative priority between 1985 and 1995
Arguments of labor:
Workers are essentially fired for striking, so other workers are afraid to strike
Destruction of the right to strike is asserted to disrupt the balance of the U.S. labor relations system and give employers vastly greater power
For labor, the use of permanent strike replacements is not about keeping a business operating during a strike; it is about busting unions through intensified confrontation
Strike Replacements
Efforts to Ban Permanent Strike Replacements
The 1981 firing of the striking air traffic controllers by President Reagan during the illegal PATCO strike ignited intense debates in U.S. labor relations; labor supporters have frequently argued that this event set the tenor for labor relations in the 1980s and made it acceptable to replace workers during strikes, though the true linkage may never be known.
Two years later copper producer Phelps Dodge showed that permanent strike replacements could be used to effectively break a strike and decertify a union in a legal private sector strike.
Permanent strike replacements were used in bitter strikes at Hormel (1985), International Paper (1987), Greyhound (1990), Bridgestone–Firestone (1995), the Detroit News (1995), Northwest Airlines (2005), and elsewhere.
Based on the results of these high-profile strikes, banning the use of permanent strike replacements was the labor movement’s top legislative priority between 1985 and 1995.
Labor argues that workers are essentially fired for striking, so other workers are afraid to strike.
This destruction of the right to strike is asserted to disrupt the balance of the U.S. labor relations system and give employers vastly greater power.
For labor, the use of permanent strike replacements is not about keeping a business operating during a strike—this could be accomplished with temporary replacements; it is about busting unions through intensified confrontation.
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Arguments of business :
Business argues that the current system is balanced and that banning permanent strike replacements would favor unions
To business, the use of permanent strike replacements is about maintaining competitiveness
Strike Replacements
The fact that some companies use professional “security” companies that provide armed guards in combat fatigues or riot gear to intimidate strikers and protect replacement workers reinforces the suspicions of labor.
Business argues that the current system is balanced and that banning permanent strike replacements would favor unions
To business, the use of permanent strike replacements is not about busting unions—it is about maintaining competitiveness.
Between 1985 and 1995 the U.S. Congress considered, but did not pass, at least four proposals to limit the use of permanent strike replacements; in the public sector, only Minnesota bans the use of permanent strike replacements.
The labor movement would still like permanent strike replacements banned in the private sector; but its inability to pass this legislation in the 1990s and the continued decline in union density has caused the labor movement to shift its legislative focus to reforming the certification process through the Employee Free Choice Act.
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NLRB Decision on Replacement Workers: Labor Minute
Please click on the video and watch the NLRB Decision on Replacement Workers
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Boycotts, work slowdowns, and corporate campaigns increase labor’s bargaining power
Though the legality of such tactics is mixed, they have become more important and more frequent since the 1980s
As the use of strike replacements (perceived or real) has increased, labor unions have turned to tactics in which employees do not risk losing their jobs by being permanently replaced in a strike.
Unions believe that employers have escalated economic warfare through the use of strike replacements
Unions have responded by searching for alternatives to strikes leading to pressure tactics
Other Pressure Tactics
Apart from strikes, what are some of the other pressure tactics labor unions adopt to pressure employers?
Boycotts, work slowdowns, and corporate campaigns increase labor’s bargaining power by imposing costs on employers, and therefore help win more favorable settlements for employees.
Though the legality of such tactics is mixed, they have become more important and more frequent since the 1980s
As the use of strike replacements (perceived or real) has increased, labor unions have turned to tactics in which employees do not risk losing their jobs by being permanently replaced in a strike.
Unions believe that employers have escalated economic warfare through the use of strike replacements,
and unions have responded by searching for alternatives to strikes and also by further escalating conflicts with other pressure tactics.
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Boycotts: Campaign to encourage a company’s customers to stop doing business with it
Primary employer - The company for whom the workers involved in the bargaining dispute work
Secondary employer - An organization that does not employ the workers who are involved in the dispute but has some business ties to the primary employer
Secondary boycotts: Target secondary employers
In the U.S. private sector, a boycott is generally legal if it narrowly targets the primary employer, but Section 8(b)(4) of the NLRA prohibits secondary boycotts that target secondary employers.
Other Pressure Tactics
A boycott is a campaign to encourage a company’s customers to stop doing business with it.
In the context of a bargaining dispute, a primary employer is the company for whom the workers involved in the bargaining dispute work;
a secondary employer is an organization that does not employ the workers who are involved in the dispute but has some business ties to the primary employer.
In the U.S. private sector, a boycott is generally legal if it narrowly targets the primary employer, but Section 8(b)(4) of the NLRA prohibits secondary boycotts that target secondary employers.
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Which of the following could be considered a secondary boycott?
A. A union encourages consumers not to purchase from Wal-Mart because Wal-Mart uses nonunion labor.
B. A union encourages consumers not to purchase from Wal-Mart because it sells products that are produced by a company that they are currently striking.
C. A union encourages its members not to purchase from Wal-Mart because Wal-Mart uses nonunion labor.
D. A union refuses to work on a job site where nonunion labor is also working.
Let’s work on a practice question. Which of the following could be considered a secondary boycott?
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Which of the following could be considered a secondary boycott?
A. A union encourages consumers not to purchase from Wal-Mart because Wal-Mart uses nonunion labor.
B. A union encourages consumers not to purchase from Wal-Mart because it sells products that are produced by a company that they are currently striking.
C. A union encourages its members not to purchase from Wal-Mart because Wal-Mart uses nonunion labor.
D. A union refuses to work on a job site where nonunion labor is also working.
That’s right. The answer is B. A union encourages consumers not to purchase from Wal-Mart because it sells products that are produced by a company that they are currently striking.
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When some labor disputes with businesses cannot be resolved, the AFL-CIO supports its affiliates by endorsing their boycotts.
A boycott is an act of solidarity by voluntarily abstaining from the purchase or use of a product or service.
AFL-CIO Boycott List
https://aflcio.org/what-unions-do/union-made-america/boycotts
When some labor disputes with businesses cannot be resolved, the AFL-CIO supports its affiliates by endorsing their boycotts.
A boycott is an act of solidarity by voluntarily abstaining from the purchase or use of a product or service.
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HOTELS
California Long Beach - Hilton Long Beach Long Beach - Westin Long Beach Los Angeles - Crowne Plaza Los Angeles Airport Los Angeles - Hilton Los Angeles Sacramento - Hyatt Regency Sacramento San Francisco - Hyatt Fisherman's Wharf San Francisco - Le Meridien Santa Clara - Hyatt Regency Santa Clara
AFL-CIO Boycott List
For example, AFL-CIO boycotts the Crowne Plaza Los Angeles Airport and Hilton Los Angeles.
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Boycotts are frequently supported by picketing
Common situs picketing is when there are multiple employers involved at a common location or site.
Common situs picketing that targets an entire worksite is illegal because it includes secondary or neutral employers.
It is now common for construction sites to include separate gates for different contractors so picketers are limited to the gate of their employer.
Other Pressure Tactics
Boycotts are frequently supported by picketing, and the legality of such conduct can be especially complex in the construction industry when employees of numerous companies are working at the same construction site.
Common situs picketing is when there are multiple employers involved at a common location or site.
Common situs picketing that targets an entire worksite is illegal because it includes secondary or neutral employers.
It is now common for construction sites to include separate gates for different contractors so picketers are limited to the gate of their employer.
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Work slowdowns
Slowdowns try to pressure employers by imposing costs through lowered productivity, but without employees leaving their jobs and going on strike
Work-to-rule campaign: Employees do their work by exactly following the employer’s rules
Other Pressure Tactics
Apart from strikes and boycotts, some unions choose to use work slowdowns.
Slowdowns try to pressure employers by imposing costs through lowered productivity, but without employees leaving their jobs and going on strike (and thereby facing the risk of being permanently replaced).
Slowdowns can take various forms, of which the most creative is a work-to-rule campaign in which employees do their work by exactly following the employer’s rules.
On one hand, if workers are simply following management’s rules, it’s hard to argue that it is not acceptable; on the other hand, if a work-to-rule campaign is interpreted as a withholding of work that has been traditionally provided (literally slowing down work), then perhaps it is insubordination and is not protected by the NLRA; the NLRB has yet to issue definitive rulings.
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Work slowdowns
Following are some of the other method for engaging in work slowdowns:
Partial strikes—refusal to work overtime.
Quickie strikes—very short strike (such as one day or even one hour)
Intermittent strikes—series of repeated quickie strikes.
The goal of these job actions is to disrupt an employer’s operations
As these strikes are a surprise and very short, it is difficult for the employer to hire strike replacements
Other Pressure Tactics
Following are some of the other method for engaging in work slowdowns:
Partial strikes—refusal to work overtime.
Quickie strikes—very short strike (such as one day or even one hour)
Intermittent strikes—series of repeated quickie strikes.
The goal of these job actions is to disrupt an employer’s operations; but because these strikes are a surprise and very short, it is difficult for the employer to hire strike replacements.
As these strikes are a surprise and very short, it is difficult for the employer to hire strike replacements
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Work slowdowns
In the public sector where strikes are often illegal, workers sometimes resort to quickie strikes by conducting coordinated days of mass absenteeism.
Work slowdowns are often part of a broader campaign of workplace tactics that includes visible demonstrations of worker solidarity
such as wearing armbands and holding rallies in the parking lot before work.
Other Pressure Tactics
In the public sector where strikes are often illegal, workers sometimes resort to quickie strikes by conducting coordinated days of mass absenteeism.
Work slowdowns are often part of a broader campaign of workplace tactics—sometimes called an inside game strategy—that includes visible demonstrations of worker solidarity such as wearing armbands and holding rallies in the parking lot before work.
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What does work-to-rule mean for Nova Scotia students and parents?
Let’s discuss one example of work-to-rule. What does work-to-rule mean for Nova Scotia students and parents?
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Teachers will still be teaching, covering the outcomes and giving their own assessments, but won’t be doing provincial or board assessments. They’ll also be asked not to do any of that work at home.
All extra-curricular activities involving teachers or other NSTU members will be cancelled, including Christmas concerts, sports team practices and games, clubs, and after-school programs.
What does work-to-rule mean for Nova Scotia students and parents?
http://www.metronews.ca/news/halifax/2016/11/28/nova-scotia-teachers-union-to-start-work-to-rule-job-action.html
The Nova Scotia Teachers Union will be taking work-to-rule job action if no deal is reached with the province – but what does that mean?
“Basically it means we withdraw services that are not related to actually teaching our students,” NSTU president Liette Doucet said on Monday.
Here’s what work-to-rule means for students and parents:
Teachers will still be teaching, covering the outcomes and giving their own assessments, but won’t be doing provincial or board assessments. They’ll also be asked not to do any of that work at home.
All extra-curricular activities involving teachers or other NSTU members will be cancelled, including Christmas concerts, sports team practices and games, clubs, and after-school programs.
Teachers will get to school 20 minutes before classes, and leave 20 minutes after the end of the school day, as required by their contract.
Teachers won’t be doing clerical duties or data entry, and will be doing attendance on paper.
http://www.metronews.ca/news/halifax/2016/11/28/nova-scotia-teachers-union-to-start-work-to-rule-job-action.html
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Corporate campaigns - Seek to bolster inside tactics with external pressure, directed at corporate headquarters by outsiders
Labor supporters see corporate campaigns as important tools for pressuring corporations who seem to hold all the power in a global economy
Critics see corporate campaigns as manipulating media and regulatory agencies to benefit unionized workers
Other Pressure Tactics
Corporate campaigns - Seek to bolster inside tactics with external pressure, directed at corporate headquarters by outsiders. Corporate campaigns might include consumer boycotts as part of their comprehensive strategies.
Labor supporters see corporate campaigns as important tools for pressuring corporations who seem to hold all the power in a global economy, and in the process of conducting such campaigns, for building stronger, more vibrant labor organizations with greater rank-and-file participation and stronger links with other community groups.
Critics—who are also proponents of free markets—see corporate campaigns as manipulating the media and regulatory agencies to benefit unionized workers at the expense of consumers and nonunion workers, and as ineffective in stemming organized labor’s decline.
Because corporate campaigns are outside the workplace, the legality of these campaigns is determined outside labor law.
Companies have tried to challenge corporate campaigns by charging unions with blackmail, extortion, and other illegal interference in business relations, primarily under the same law used to prosecute the mafia (the Racketeer Influenced and Corrupt Organization Act or RICO). Free speech rights, however, have largely prevailed.
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Corporate campaigns
A “corporate campaign” is an attack by a union on the ability of a company or industry to conduct its routine business.
Objective
is to generate so much pressure on the “target” that it will give in to union demands.
Other Pressure Tactics
A “corporate campaign” is an attack by a union on the ability of a company or industry to conduct its routine business.
The corporate campaign is the most recently developed economic pressure tactic that seeks to bolster inside tactics with external pressure, typically directed at corporate headquarters by outsiders such as other members of the business and financial community, consumers, politicians, and government regulators; the union’s strategy is to create negative publicity that causes these outsiders to pressure or withdraw support for the targeted company.
The Objective is to generate so much pressure on the “target” that it will give in to union demands.
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Making Change at Walmart is a campaign run by the United Food and Commercial Workers International Union (UFCW) to improve the lives of Walmart workers.
Here is an example of corporate campaign. Please watch this short video. Making Change at Walmart is a campaign run by the United Food and Commercial Workers International Union to improve the lives of Walmart workers.
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Common tactics unions employ in corporate campaigns include:
Filing a stream of unfair labor practice charges against the company
Encouraging investigations of potential OSHA, wage and hour, environmental, and/or antitrust violations by the company
Causing union-paid organizers to get jobs within the company (known as “salting”)
Placing print, digital, radio, and/or TV ads attacking the company, establishing anti-company websites, and distributing anti-company materials (including emails and social media messages) to customers, shareholders, and employees
Other Pressure Tactics
Common tactics unions employ in corporate campaigns include:
Filing a stream of unfair labor practice charges against the company
Encouraging investigations of potential OSHA, wage and hour, environmental, and/or antitrust violations by the company
Causing union-paid organizers to get jobs within the company (known as “salting”)
Placing print, digital, radio, and/or TV ads attacking the company, establishing anti-company websites, and distributing anti-company materials (including emails and social media messages) to customers, shareholders, and employees
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Introducing shareholder resolutions aimed at reducing management’s independence
Challenging the zoning or permitting of new company facilities
Alleging or implying sexual misconduct by company executives or claiming that the company does not pay its employees fairly
Recruiting celebrities, politicians, clergy, and other community leaders to put pressure on the company
Other Pressure Tactics
Introducing shareholder resolutions aimed at reducing management’s independence
Challenging the zoning or permitting of new company facilities
Alleging or implying sexual misconduct by company executives or claiming that the company does not pay its employees fairly
Recruiting celebrities, politicians, clergy, and other community leaders to put pressure on the company
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We have come to the end of our lecture today. If you have any questions, please feel free to email me.
See you next class!
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