Dinosaur or a Lady in Waiting *****Due Today

"V \

/ '̂ -tr;

THE WORK STOPPAGE: A DINOSAUR O R A L IN WAITING?

ByWíll¡sj.Nordlund,R

I. Introduction

Dr. Willis Nordlund is currently As-

sociate Professor and Division Chair of

Economics and Business at New Rjver

Community and Technical College and

adjuna Professor at Concord University

and Bluefield State College.

152

America prides itself on a highly skilled, creative, productive work force that has been the engine for economic growth and prosperity for two centuries. Americans are thought to have a strong work ethic that leads to high productivity and sustained economic growth. While some observers of our Nation's his- tory would place greater emphasis on the role of the entrepreneur and capital as explaining the fabulous character of our economic growth, at the core of eco- nomic growth is the American worker. There is room for entrepreneurial talent and the creation of capital resources in the growth equation, but without a strong, highly productive labor force, those two factors would have little relevance. A third element that is frequently ignored or denigrated is the labor union. In fact, many would argue that labor unions have impeded economic growth, not expanded it. This article is not focused on this debate directly, because the arguments against unions are well-known.' There are, of course, argu- ments that support union formation and that unions enhance productivity and economic growth.^ While couched in economic terms, the real basis for most of the arguments on either side are philosophical, not economic. If a person dislikes unions, they can find numerous reasons for doing so and if one supports unions there are equally as many arguments.

One of the elements in the discussion of the role of unions in economic growth is the work stoppage. © 2010 by Willis J, Nordlund, Ph.D.

LABOR LAW JOURNAL

In a free society, workers have the right to withhold their labor services. If employment conditions are unsatisfactory, workers have the right to strike. Labor strikes have a long and colorful history in the United States that can be traced back to the early years of the Republic. However, those early strikes were seldom successful because of the absence of stable organizations to instigate work stoppages and see them to conclusion. These events were also viewed by the courts as illegal conspiracies that restricted trade. As the nation matured and grew, employees transitioned from sole proprietor type production to a wage-based economic relationship. This transformation is the most important phenomenon that ex- plains why unions came into being and why the Federal government gradually sided with workers in their quest for work place fairness, economic security, and the ability to enjoy the fruits of their production. While our Con- stitutional form of government emerged in 1787, it was not until 1935 that unions became lawful under Federal legislation. Unions began forming shortly after 1787, but their role and status in the productive process was not truly clarified until enactment ofthe National Labor Relations Act of 1935 (NLRA). Section 7 ofthe NLRA gave workers the right to form unions and to lawfully engage in labor strikes. Union formation and work stoppages accelerated through the 1940s and 1950s as workers began exercising their new-found rights.

The labor strike became the weapon of choice of workers resisting low wages, insensitive man- agement, unfair treatment, and numerous other attributes of the industrial work place. Unions formed and won strikes, thereby implying that unions were a viable part of the production process. Not all strikes were successful in achiev- ing their goals, but enough were successful to provide a viable threat to management that if conditions of employment weren't fair, workers would stop the production process. The work stoppage imposed costs on the firm and the workers. However, workers and their unions saw the strike as an investment in their long term economic well-being.

The Bureau of Labor Statistics (BLS) in the U. S. Department of Labor has been the re- pository of most of data on work stoppages. An early analyst in the BLS, Florence Peterson, wrote an important monograph in 1937 that chronicled early work stoppages in America.^ The Peterson study examined the size, cause, and consequences of labor strikes over a half Century period (1880-1936). Almost a half Century later, P. K. Edwards published his seminal study entitled Strikes in the United States, 1881-1974.'* The Edwards stiidy updated and expanded the causes and consequences of strikes over almost a Century. There have been numerous studies and reports on individual strikes, international work stoppages, and those in specific industries or regions of the country. However, the Peterson and Edwards studies are the most directly relevant to the overall question of what has happened to strikes in America. It is significant that Üie Edwards study was published simultaneously with the beginning ofthe demise of strikes in America. His study did not address this phenomenon and, as a consequence, a me- thodical examination of the post-1980 period has not occurred.

This study suggests that strikes meike a differ- ence; that workers have no power without the strike tool; that a long-term fully functioning capitalistic economy requires that all participants benefit from a fair distribution of income; that strikes are rare today, not because all of the problems in the work place have resolved, but because government and industry have mar- ginalized American unions and taken the right to strike away from unions and the American worker. It may be the appropriate time for American workers to reconsider the formation of a labor party.

II. A Brief History of Work Stoppages in the United States.

American work stoppages have two characteris- tics that differentiate them from work stoppages elsewhere in the world. First, American work stoppages have generally been more violent. While the precise number of individuals killed

153

THE WORK STOPPAGE: A DINOSAUR ORA LADY IN WAITING?

as a result of work stoppage activity is un- while the physical work place was undoubtedly known, there are crude estimates of, perhaps, four hundred to five hundred fatalities. Occa- sionally, striking workers killed pro-employer individuals, such as Pinkerton agents, military personnel, or company personnel, but the vast majority of those killed in work stoppages were workers. Second, American work stoppages have been largely apolitical. In other words, American workers strike for reasons other than political gain.

The first recorded work stoppages in the U. S. were not by workers against employers. In fact, the earliest work stop- pages occurred before the emergence ofthe In- dustrial Revolution and the widespread reliance of individual workers on industrial wages. The earliest work stoppages were by craftsmen who generally worked for themselves (they would be "sole proprietors" or "independent contrac- tors" in today's terms) and sold their products to individual consumers. When economic conditions deteriorated so that they could not sell their products at a price that sustained their livelihood, these skilled craftsmen attempted to band together to withhold their production and force higher prices and income. These types of individuals banned together in what were called "guilds" rather than labor unions. The reason, of course, was that these individuals did not see themselves as "laborers," but rather as small business owners.

As the Industrial Revolution steamed ahead, individual workers became wage earners who were dependent on employers for their liveli- hood. In those early days, vigorous competition, particularly during adverse economic times, compelled employers to cut wages to remain competitive. The earliest unions often formed to resist wage cuts, rather than bargain for higher wages. Working conditions were the second most important issue in those early years and.

Therefore, when unions formed, they formed to address a specific issue -

decreasing wages or the long work day - and once the issue was resolved or the employer prevailed, the union disbanded

and

a source of concern to many workers, the real is- sue was the length ofthe work day. Thirteen and fourteen hour work days, six days a week, were customary in early American industry. In addi- tion, there were no child labor protections. The history of unionization is replete with workers at- tempting to alleviate "sweat shop" conditions in the industrializing economy through concerted actions, including work stoppages.

Most early work stoppages, in the initial stages of the Industrial Revolution, were unsuc- cessful. While very early unions may have had

some limited success, employers wielded all the power and the early worker organizations were poorly structured to take on industrial muscle. Unions formed, protested, and usually died, all within a short period of time. Part of the reason for the de- mise was workers were accustomed to looking

out for themselves and neither understood, nor accommodated organized actions. Workers gen- erally believed that they could take care of them- selves, except under the direst circumstances. Therefore, when unions formed, they formed to address a specific issue - decreasing wages or the long work day - and once the issue was resolved or the employer prevailed, the union disbanded and disappeared.

It is always interesting to identify the first time something happens. There is some dis- agreement about when the first labor strike occurred, because there is disagreement about the definition of a strike and an employee. In any case, in the year of American indepen- dence, 1776, printers in New York sought a wage increase from their employer. The employer refused the request. The printers ordered a "turn-out" and it resulted in the employer ca- pitulating and giving in to their demands. In this sense, in terms of American labor history, the first strike was a success.^

154

LABOR LAW JOURNAL

The second strike was ten years later by a wages and shorter hours. While most strikes group of printers in Philadelphia.^ Rather than seek a wage increase, they attempted to stop a wage decrease. It, too, was apparently success- ful and involved the first recorded instance of a "strike fund" to support the striking workers. Five years later, a strike by carpenters in Phila- delphia for a 10-hour day failed. There were subsequent strikes by sailors that met with limited success. The most important strikes in those early years were by the shoemakers. Called cordwain- ers, these craftsmen engaged in a variety of strikes in the late 1790s and early 1800s. Of particular note was a strike in 1796 by the Federal Society of Journeymen Cordwainers in Philadelphia. This strike and a follow-on strike two years later resulted in wage increases for the shoemakers. A third strike in 1799 by the same group saw the first usage of a derogatory term that remains with the labor movement to the present day - the scab. Up to this point, employers were on the defen- sive and probably did not know how to respond to these employee actions. However, in 1805, when the cordwainers struck again, employers in Philadelphia sought assistance from the courts to thwart both the organization of workers into "societies", and labor strikes. The tactic worked and is now believed to be the first time that or- ganized workers were prosecuted successfully as criminal conspiracies.

There were a variety of other strikes up and down the Eastern seaboard, but the next "first" was a strike involving women. In 1824, wom- en and men weavers in Pawtucket, Rhode Island struck to prevent a wage decrease and an increase in hours. The outcome of the strike is not clear. The following year, there was a strike in New York by women alone for higher wages. This strike by "tailor- esses" met with limited success.

Once the strike weapon became more widely known, strikes proliferated throughout New Eng- land. From Baltimore to Buffalo, workers from common laborers to highly skilled stonecutters

While most strikes were localized events, occasionally

one would be of sufficient size to threaten civil disrupti

were localized events, occasionally one would be of sufficient size to threaten civil disruption. In 1828, in the first strike in a factory environment, textile workers in Paterson, New Jersey stuck. This strike resulted, for the first time, in the mi- litia being called out to quell the disturbance.

For the early years between 1776 and 1830, Peterson noted that "These years saw the intro- duction by the workers of the walking delegate, strike benefits, the use ofthe general strike when an individual strike proved ineffective, picketing, social ostracism and sometimes physical violence toward 'scabs', and the use of militia and the courts by employers and public authorities."^

To provide a framework for understanding strike history, there are five distinct periods that encapsulate the elements that formed the basis for each succeeding period. The first period was prior to the War for Independence. Dur- ing this period, as noted above, there were a very small number of work stoppages, but in the grand scheme of things did not amount to much. There was no real organization of strikers and the protests that did arise were short and ineffective. The second period may be defined as the hundred or so years from 1776 to about 1880. During this period, due in large part to the Industrial Revolution, huge numbers of workers entered the wage system. This period was replete with adverse work conditions that compelled workers to ban together and at-

tempt to improve their working conditions.

With a few exceptions, unionization and work stoppage activities were unsuccessful. Many les- sons were learned by

both workers and employers about how to engage in these activities, but for the most part employers, supported by the courts, effectively thwarted these concerted actions.

The third period is from about 1880 to 1940. It was during this period that the American Federa- tion of Labor was formed - in 1886 — national unions formed and persisted, the Industrial

and carpenters, repeatedly stuck for higher Revolution matured in a highly mechanized

ISS

THE WORK STOPPAGE: A DINOSAUR ORA LADY IN WAITING?

system of production, and the Federal govern- ment's attitude toward labor and unionization began changing. Certainly, in the last decade or two of this period, the government began to un- derstand the imbalance of power in the industrial environment and how this imbalance threatened economic growth and the prosperity of Ameri- can workers and their families. The Clayton Act, the Railway Labor Act, and ultimately the National Labor Relations Act of 1935, created a new legal framework that sanctioned unions, permitted strikes, and created an administrative agency - the National Labor Relations Board - to adjudicate and resolve organizational issues. This period is clearly the heyday of unionization in America.

The fourth period lasted from approximately 1940 to about 1980, a period that saw American employers offer reasonable accommodation to unions. Employers, often grudgingly, accepted the fact that their employees could, and would, form unions and bargain collectively. There was substantial work stoppage activity during this period. The largest amount of production time lost due to work stoppages, in a single year, was in 1946, immediately after the Second World War. Work stoppages resulted in about a two percent reduction in overall production, which by today's standards is stratospheric. Annual production time lost due to work stoppages in the last couple decades has been in the tenths or hundreds of one percent. In any case, in the first two decades of this interval, the National Labor Relations Act of 1947 and the Labor Management Reporting and Disclosure Act of 1959 (LMRDA) attempted to level the play- ing field between workers and employers and make financial relationships more transparent. This interval could be described as the matur- ing of the industrial environment that involved substantial accommodation of unions and em- ployers in a capitalistic, market economy. This period is often referred to as the "corporatist period" in American labor relations. Unions had seemingly "won" the right to exist and represent workers and industry accepted their existence. Little did they know that with a change in the political winds and the onslaught of globaliza-

tion, attitudes toward unions would take a 180 degree turn.

The fifth period started in about 1980 and continues to this day. There are many descrip- tors that can be used to characterize this period, but none of them fully captures the change process that occurred. Unions have continued to decline in both absolute and relative terms (there have been small absolute increases in union membership in the last couple years); work stoppages have diminished to the point at which they are becoming irrelevant; employers openly frustrate organization efforts through legal and quasi-legal means; the Federal gov- ernment has openly resisted unionization and work stoppages in both the public and private sectors; alternative methods of worker protest have emerged, but appear relatively ineffective; globalization has placed increasing pressure on unions and workers through outsourcing and other means of eliminating American jobs; the industrial mix has shifted substantially from a manufacturing economy to a service-based economy (upwards of 70 percent of output, in the U. S., is in services); and, employers utilize permanent worker replacement as the preferred tool to frustrate and minimize the importance and effectiveness of work stoppages and to destroy unions. These are several of the most important elements in the current labor-man- agement relationship. Nobody can reasonably assert that the playing field between workers and employers is level. Employers, with the acqui- escence of government have absorbed virtually all of the power in the industrial environment and have repeatedly demonstrated a penchant for using it. The corporatist period is over and employers are seemingly intend on removing unions from the industrial system, largely with Federal government support.

ill. Do Strikes Make Any Difference?

In the most cursory of ways, one would have to conclude that strikes must make a difference, because of all the energy employers and gov- ernment expend to prevent them. If they didn't make any difference, who would care?

156

LABOR LAW JOURNAL

It is not possible to quantify the loss due to in those terms, production time lost is a small work stoppages on industry overall, individual employers, or workers and their families. How- ever, there is a summary statistic that attempts to quantify what the economy loses when work stoppages occur. This statistic is called "work time lost" and it purports to reflect how much work time is lost due to strikes and lockouts. As noted above, the most annual work time lost in

price to pay. Employers, too, have the right to lockout employees. The economic impact of em- ployer lockouts has not been estimated because there is no clear delineation of lockouts in the American statistical system.

What power do unions have if they do not have access to the strike? History suggests that the only real power that unions have is the strike.

all the years of recorded strike activity was in A U.S. Supreme Court justice, Louis Brandeis, 1946. In that year, about 1.4 percent of total pro- duction time was lost due to strikes. In other words, national output was reduced by one dol- lar and forty cents out of every one hundred dollars of output. That estimate may seem large or small depending upon one's view point, but in the context of the time, it was seen as unions out of control. In fact, it precipitated passage of the Labor-Management Relations Act (Taft- Hartley Act) of 1947 that reigned in some aspects of union power. Gross Domestic Product was about $255 bilhon in current (1947) dollars or $1.6 trillion in constant 2000 dollars. The most aggregate amount of production lost would be about $3.6 billion in 1947 dollars or $22 billion in constant 2000 dollars.^

The most production time lost was in 1946. In most other years, the amount of production time lost due to work stoppages was in tenths of one percent and in many cases too small to mea- sure and report. This level of economic impact is important to note. In the heyday of unions, Americans believed that strikes disrupted huge segments ofthe economy. Admittedly, losses due to strikes are not confined to direct production time. There are undoubtedly secondary losses that would increase the impact, but those effects are not officially reported. Also, a strike confined to a given industry or region is likely to have a larger impact on that industry or region than the economy overall. Nevertheless, strikes are one of the costs of permitting workers the right to form unions and to withhold their labor services and

A second quantitative method for inferring the importance

of strikes is through the difference unions make in

obtaining improved conditions of employment.

asserted, "Labor cannot on any terms surren- der the right to strike."^ Abraham Lincoln, rec- ognized the importance of the strike when he suggested in a speech on March 5, 1860 that "I am glad to know that there is a system of la-

bor where the laborer can strike if he wants to. I wish to God that such a system prevailed all over the world."'*' Samuel Gompers, first president of the American Federation of Labor (AFL) argued that "Show me the country that has no strikes and I'll show you the country in which there is no liberty.""

These and similar statements about the impor- tance ofthe strike to organized labor suggest that without it, unions and workers have little power. Some will argue that workers have many other sources of power, other than through organiza- tion. Individuals can quit their jobs if they are unhappy with the terms of employment; they can take their problem to a government agency such as the Equal Employment Opportunity Commission (EEOC); Üiey can boycott an em- ployer's product; they can slow down and "work to the rule"; they can take their problem to the media; and, other similar actions. These same critics often suggest that individual workers may lose some power if a union is present because under law the union must represent the indi- vidual worker in problems with the employer. If union leadership does not feel the problem has merit, they may refuse to take an advocacy role. In this situation, the individual worker cannot take their problem directly to management and

157

THE WORK STOPPAGE: A DINOSAUR ORA LADY IN WAITING?

attempt resolution. The law and the contract in- variably state that resolution must occur through the established dispute resolution processes that involve the union.

A second quantitative method for inferring the importance of strikes is through the difference unions make in obtaining improved conditions of employment. Without a union and the threat of a strike, employers may negotiate with a single employee for improved wages and benefits, work assignments, promotions, and related em- ployment conditions. Highly trained, educated, and skilled employees in critical occupations can be very effective in this process and that is why relatively few of these types of employees are in unions. If an individual employee does not receive the conditions that they seek, they have the right and opportunity to leave the job and seek employment elsewhere. That, in fact, is how it works in nonunion firms. However, if the employer embarks on a low-wage, danger- ous, authoritarian method of production, every employee in the organization faces the same threats to their livelihood. While, obviously, every employee can chose to quit their job and seek employment elsewhere, this is not feasible or practical in most situations. The worker may not be mobile due to family or economic con- straints; in times of high unemployment there may be few alternative jobs that the worker is qualified for; the employer community may share information about specific employees and prevent them from obtaining alternative jobs; and, so forth. The only real choice the individual employee has, then, is to simply quit or swallow hard and live with the situation.

If, on the other hand, the employee is in a union, the power shifts toward the employee. If wages are low, work conditions unsafe, or management insensitive to employee needs, the employer has several options. It can adjust the unacceptable conditions to accommodate employee needs or refuse to adjust and experi- ence a work stoppage. The employer will make a short term-long term calculation Üiat delineates probable costs related to both choices. The firm will generally pursue the choice that is in its best economic interest.

What, then, will compel a firm to give in to union demands? Will a threatened boycott moti- vate them? Will informational picketing compel them? Will working to the rule compel them? There may be situations in which the answer to one or more of these questions is, yes. In general, however, these types of employee actions are unlikely to compel the firm to accommodate the union's demands. These indirect pressure tactics, while important in some cases, are not effective in most cases. They are indirect, long-duration actions that permit the firm to adjust and accom- modate them. There are instances in which the boycott, in particular, was successful, but as a tool of protest, it is not very effective. What is left, then, is the work stoppage. If unions make a difference, it is undoubtedly due to the threat of the work stoppage.

IV. Capitalism and Income Distribution.

For a market economy to function effectively, there must be some semblance of equity in the distribution of income. The reason is simple. For the market to work, individuals (customers) must be able to participate in the market. This participation requires income. The market is a two-sided phenomenon. It does a producer little good to supply the market with a good or service if the customers lack income to purchase the economic good. Therefore, for the market mechanism to operate, income distribution must be equitable. This does not mean that income is equally distributed. In fact, one of the important aspects of capitalistic, market- based economies is that there is some degree of inequality. That is one of the factors that motivates consumers to seek to maximize their well-being within their income constraint and that motivates producers to respond to con- sumer demand to maximize profit.

However, one of the factors that lead to the Great Depression was the concentration of in- come and wealth in the hands of a very limited number of people. It is clear that the "roaring twenties" did not roar for unions or workers; it roared for American corporations. They amassed wealth and income in unprecedented

IS8

LABOR LAW JOURNAL

amounts and drained the working class of in- come and therefore purchasing power. This was not the only factor that lead to the Great Depression, but the lack of purchasing power prevented the market from function normally. Extreme concentrations of wealth and income, particularly in a short period of time is anathema to a market-based economy.

One of the troubling aspects of the current economy is the relatively rapid shifts of wealth and income to upper income segments of the economy. This shift has occurred through changes in the tax system, not changes related to improved production or economic efficiency. These shifts in wealth and income will ultimately lead to a diminution of consumer spending. Americans are consumers, not savers. However, as suggested, consumption requires income. The shift in wealth and income away from the middle class and upper-middle class has been underway for most of the last two decades, but it acceler- ated under the 2002 Bush tax cuts. The vast majority ofthe $ 1.3 trillion tax cuts has flowed to the wealthiest Americans. In fact, most segments of the economy received no net long run tax relief from the 2002 tax cuts. The reason is that the alternative minimum tax system that runs parallel to the established income tax system has absorbed larger and larger amounts of revenue from the middle and upper-middle classes. One of the most lucid explanations of this phenom- enon was made by David Cay Johnston, who won the 2003 Ire Medal for the best investigative book ofthe year, for his book "Perfectly Legal. " '̂ Although the 2002 tax cuts are due to expire in 2010, the redistribution of wealth and income has already occurred and the economy will feel its effects f̂ or decades into the future.

The Obama Administration is considering allowing the tax cuts on the top earners to ex- pire. This process will marginally increase the tax revenue flow from the upper one percent of the population, but it will do little to recover the vast redistribution of wealth and income that has already occurred. It is impossible to argue that workers in America are better off today than they were two decades ago. After adjusting for inflation, real incomes are flat and in some cases

negative. This is significant because the pattern of work stoppages parallels this process. Union- ized workers should be able to extract higher wages and income from employers, but their inability to strike has removed their power to do so. Real union wages (adjusted for inflation) while higher than nonunion wages, are grow- ing at a slower pace. In other words, unions are unable to compel employers to offer union members wage increases that exceed increases for the nonunion sector. There may be many factors such as the industrial location of union workers, their geographic location, international competition, and so forth, that contribute to this trend, but one of the most likely causes of lag- ging changes is the diminution of union power as reflected in the decline in work stoppages.

From about 1980 to 2009, there has been a monotonie decline in both major work stop- pages and in total work stoppages. The num- ber of major work stoppages (involving at least 1,000 workers and lasting at least one work day) averaged about 350 per year between 1940 and 1980. There were 187 major work stoppages in 1980. Last year - 2009 - there were five major work stoppages in the United States. As of June, 2010, the nation has experienced five work stop- pages and therefore there are likely to be ten or twelve major work stoppages this year. What is clear is that American employers no longer see work stoppages as a serious threat and therefore are not inclined to give union members larger wages and benefits increases than what are given to nonunion workers.

V. Possible Causes for the Dramatic Decline in Work Stoppages

There is no single answer that explains the de- cline, but it appears that three or four factors converged in the late 20* Century. First, union membership reached its peak in the mid-1970s and has been declining, in relative terms, ever since. Some ofthe decline is due to the shifting industrialization process from a manufacturing- transportation-mining-construction economy to a service-based economy. Historically, unions have been less successful in organizing

159

THE WORK STOPPAGE: A DINOSAUR ORA LADY IN WAITING?

the service sector. Second, there has been a significant demographic shift in the character of the labor force that militates against union formation. Specifically, women began entering the labor market in the late 1950s and early 1960s and the labor force participation rate of women is approaching that of men. Women

per is important reading in its own right, because it shows how the Court system, has produced an unbalanced system of industrial rights that favor employer rights over worker rights. As noted in Pope's paper, the five U. S. Supreme Court deci- sions that adversely affected the American labor movement are: l) ... "workers have no right

have dominated employment in the service sec- of self-defense against employers that commit tor where unionization rates are low and this, too, militates against union membership ex- pansion. Third, there are notable differences „„„„.„„„„^„.^^^„,,_^,, in the geographic dis- tribution of union membership. Traditionally, the north and northeast regions have been the repository of union members while the south has been relatively union-free. Over the last four decades, industry and its jobs have mi- grated southward. As this process unfolded, unions have had an increasingly difficult time penetrating this industrial system. Importantly, with two or three exceptions, all ofthe nation's right-to-work (RTW) states are southern states. In RTW states, the union-shop form of union security arrangement is illegal. This means that if a union wins exclusive bargaining rights for a contingent of workers, individual workers need not join or support the union, but the union must represent those workers in bargaining and dispute resolution processes.

All of these changes have weakened unions and their ability to engage in work stoppages. However, there is a fourth element that has more directly and forcefully restricted the efficacy of union strikes. A series of U.S. Supreme Court de- cisions have restricted union formation and their right to strike. Five Supreme Court decisions spanning a half century period, from the late 1930s to the 1980s, have curtailed union organi- zation activities and, in the process, the use ofthe strike as a union tool. These five decisions have been outlined in an important article in 2005 by James Gray Pope.'^ These decisions, while seemingly disparate in nature, have become the framework for antiunion attacks in the United

Only two countries ~ South Africa and the United States - permit permanent striker

unfair labor practices"; 2) ..."employers enjoy the right to permanently replace economic strik- ers"; 3) ..."the National

™™™<™™»™H»™»™»™»«-™:. L a b o r R e l a t i o n s B o a r d [NLRB] has no power

to deter unfair labor practices"; 4) ..."employ- ers may exclude union organizers from their property"; and, 5) ..."employers may close operations out of 'spite' against workers who choose to unionize."''*

While all five decisions adversely impact workers' rights to unionize and engage in work stoppages, the second one has the greatest direct impact. The right of employers to permanendy replace striking workers results in workers committing industrial suicide if they choose to exercise their NLRA rights. Few employees are in a position to engage in any activity that will result in permanent loss of their job. Therefore, unions have been reluctant, except in the most extreme cases, to engage in work stoppage ac- tivities. Only two countries - South Africa and the United States - permit permanent striker replacement. Employers have the right to hire replacement workers to keep their operations going during work stoppages. However, when the dispute is resolved, employers are required in all industrialized, capitalistic countries, except the United States and South Africa, to reinstate the striking workers to their original jobs. If a worker must permanently give up their job when they exercise their NLRA rights, those rights have no real meaning.

It is significant that permanent striker replace- ment is not embodied in Federal statute. In fact, it is not embodied direcdy in a U. S. Supreme Court decision. Rather, it exists in the dicta

States for the last quarter Century. The Pope pa- released by the Court in the 1938 case NLRB v.

160

LABOR LAW JOURNAL

McKay Radio and Telegraph, Inc.'^ Essentially, the that is more conservative, probably in both the United States has a Federal statute - the NLRA " '" ~' - that gives workers the right to strike, but dicta in a Supreme Court case effectively abrogates that right by permitting employers the right to permanently replace the striking worker. The dicta does not mandate permanent replacement of strikers, it simply permits it. This dicta lay dor- mant for over four decades and was ignored by both employers and unions. All of this changed in 1981 when President Reagan fired and per- manently replaced 11,300 air traffic controllers.'* The private sector reasoned that if the President of the United States can permanently replace striking workers, then certainly private sector employers could do the same. They sought and found the rationale for this process in the 1938 Supreme court dicta. That tactic has been the modus operandi of American employers for the last quarter Century.

Vl.What Does the Future Hold?

With a decidedly conservative Supreme Court, the dicta is unlikely to lose its importance. The NLRA is also unlikely to undergo significant revi- sions. Therefore, the only real chance to end the permanent replacement of striking workers is to craft a new law. If such a law were enacted, there would almost certainly be a Supreme Court challenge. If the new law made permanent striker replacement illegal, the Court could strike it down as unconstitutional. More likely, as has happened in the past, there would be a filibuster in the United States Sen- ate that prevented the law's enactment. Thus, opponents of worker rights in America have at least two bites at the apple. If they are unable to stop it in the U.S. Senate, they will have another opportunity to stop it in the courts.

Worker rights advocates have been slow com- ing forth with a proposed legislative package to address this issue. The looming mid-term elec-

For reasons that supporters of worker rights could not

have foreseen, the window for meaningful labor law reform is

House and Senate. There is a distinct possibility that the House will become conservative and the Senate will be decidedly more conservative. Therefore, time is running out on the prospects for any meaningful labor law reform legisla- tion in the current Congress. For good and bad reasons, unless there is a dramatic turnaround in the economy, the war in Afghanistan, the oil debacle in the Gulf of Mexico, the public attitude toward the new health care law, and a myriad of other hot-button issues, the prospects of Barack Obama being a one-term president are very real.

For reasons that supporters of worker rights could not have foreseen, the window for mean- ingful labor law reform is rapidly closing. Ameri- can unions and working people were important in the election of Barack Obama and one could have expected a more aggressive effort to re- form the labor laws. However, the state of the economy and the war in Afghanistan preempted consideration of all other issues

Americans are frustrated with the state of the economy, the war, health care, education, the oil debacle, and a dozen other critical issues facing the nation. On the national stage of contempo-

rary issues, reforming the labor code does not seem to garner much at- tention or interest. That does not mean that the issues described above have no merit, but the political capital needed to bring them into seri-

ous contention for consideration does not appear available. In this sense, the American worker and the American labor movement have missed an opportunity to address a series of issues that cry out for attention. Under current conditions, only the most wildly optimistic observer can expect unions to begin growing again in any meaningful way, for worker rights to be brought in alignment with employer rights, or for any semblance of equity or fairness to be manifest

in labor-management relations. The United tions are almost certain to produce a Congress States is entering a new era of economic change

161

THE WORK STOPPAGE: A DINOSAUR ORA LADY IN WAITING?

that it is only a part of and over which it has little control. The U.S. economy will remain the dominant world economic power for the next decade or two, but as China, India, and Brazil exert increasing economic influence in the World economy, the ability ofthe U.S. to shape the eco- nomic relationships wifl continue to dwindle. The American worker is caught in this process and is certain to see less favorable conditions related to real income levels, job security, retirement pro- grams, health care, and many other conditions of employment. The American worker truly has lost the power necessary to significantly control their own destiny. The time will come, of course, when the pain of the inferior position will be so acute that change will be forced. It is not just high unemployment in the current economy, but all of the issues related to improved economic wefl-being, equity in economic gains, the increas- ingly concentrated income and wealth in the hands of the very rich, the perceived unfairness of the system of taxation, and numerous other conditions that cry out for change. This missed opportunity to change American labor laws will haunt the American worker and the American labor movement for a generation. The next op- portunity is not on the horizon, but is certainly many decades in the future.

So, what can we conclude about the fate of work stoppages in America? Are they dinosaurs, or are they the lady in waiting ready to reassert their ability to foster change? One would have to conclude that work stoppages, as we have known them, are not poised to reassert their historic position in labor-management relations. With only five major strikes last year and the prospects for them being in single digits again this year, the future of work stoppages is not bright. The American labor movement and American workers, in general, are not equal partners with business and government in the nation's economic future. This is a troubling problem from many directions and at many levels. American labor unions have been the catalyst for change in ways that few Americans under the age of forty can appreciate. Health and safety, pension protection, universal educa- tion, minimum wages, dispute resolution, and

dozens of other dimensions of the work force that younger Americans take for granted were instigated, fought for, and won by American unions. The problem, of course, is that those gains are not permanent, but must be continu- ally protected against the onslaught of indus- trial might. The constant mantra of the right to deregulate and reduce enforcement has led to many ofthe problems the nation currently faces - mine disasters, oil spills, pension programs in jeopardy, the absence of a living wage, reduced job and income security, and many more.

Over the last century, American workers have experienced periods of dramatic improve- ment and devastating defeat. The one thing that gives optimism about the future is that American workers are resilient and at their core, fair. It takes a lot to provoke them to take action. Workers do not want more than what is rightfully theirs, nor do they want less. The imbalances in the economy due to greed, com- plicit government, and international changes should have prompted workers to begin push- ing back. Thus far, the level of discomfort has not penetrated the psyche of the 160 million workers with sufficient intensity to promote ac- tion. Under current law, worker resistance will remain isolated and relatively ineffective. Since workers can no longer rely on government to advocate constructive change or penalize illegal behavior, a new scheme for worker protest must be developed. That new scheme could be the resurgence of work stoppages, but more prob- ably it will be related to the political process. We hear the extreme right fringe talking about "taking back their government." This infers that they had the government in the past and that somehow an extreme right leaning government would be to the advantage of most Americans. Neither inference is true, but the rhetoric sug- gests a possible route for American workers - an American labor party. While American labor unions have resisted forming a labor party in America, and probably for good reason, leaders in the labor movement may want to reconsider this possibility. The United States is one of the few developed nations that does not have a labor party. With strong public sentiment for a third

162

LABOR LAW JOURNAL

or fourth party - witness the Tea party move- of a labor party. How this could be done is not ment - to challenge the two dominant parties, American unions have a built-in contingent of 15-20 million workers who could form the core

the focus of this paper, but with the demise of work stoppages in America, it seems appropri- ate to consider other options. •

ENDNOTES

Some argue that unions restrict the firm's ability to assign the most productive worker because of seniority restrictions; that unions compel employers to pay higher wages and benefits than what nonunion firms pay; that unions limit the firm's ability to discipline and discharge recalci- trant or unproductive employees; and so forth. The old adage that "firms with unions, probably deserve them," summarizes several parts of the argument. Unions improve productivity by ensuring that workers have living wages, strong benefit packages, and educational and skill upgrading opportunities; that providing outlets to resolve worker grievances improves overall productivity; that advocating for and ensuring fair treatment results in greater attention to productive activities; and, nnany more. Florence Peterson, Strikes in the United States, 1880 - 1936, BLS Bulletin No. 651, August 1937

P. K. Edwards, Strikes in the United States, I 8 8 Í - Í 9 7 4 . (New York,. St. Martin's Press, 1981) Much of the history of strikes Is taken from Peterson's Strikes in the United States, 1880- 1936. Peterson, p. I I . . (NEEDS A PAGE) Peterson, p. 14. Calculations by the Author. Peter Bollen, Great Labor Quotations: Source- book and Reader, Red Eye Press, Los Angeles, CA., p. S3. ABRAHAM LINCOLN, speech in Union Hall at New Haven, Connecticut on Mar. 6, I860, See http://www.gutenberg.org/files/2657/2657- h/2657-h.htm#2H_4_0052 and http://www. notable-quotes.com/I/lincoln_abraham.html (NEED A MORE SPECIFIC CITE, i.e., A SPEECH, OR PAPER.) Bollen, p. 245.

David Cay Johnston, Perfectly Legal, The Penguin Group: New York, 2003. Gray Pope, "How American Workers Lost the Right to Strike, and Other Tales," Rutgers Law School (Newark) Faculty Papers, Paper Number 009, 2005.

Pope, 2005. For specific references, see Lobor Board V. Fansteel Metallurgical Corp., 306 U. S. 240 (1939); NLRB v. Mockoy Radio & Telegraph Co. 304 U.S. 333 (1938); Republic Steel Corp. v NLRB, 311 U.S. (1940); Lechmere, Inc. v. Na- tional Labor Relations Board, 502 U.S. 527 (1992); and, Darlingtan Manufacturing Company v. National Labor Relations Board, 397 F2d 760 1968, respectively.

NLRB V. Mackay Radio & Telegraph Co. 304 U.S. 333 (1938) Willis J. Nordlund, Silent Skies: The History of the Professional Air Traffic Controller's Strike, Greenwood Press, 1998

163

Copyright of Labor Law Journal is the property of CCH Incorporated and its content may not be copied or

emailed to multiple sites or posted to a listserv without the copyright holder's express written permission.

However, users may print, download, or email articles for individual use.