Before 1935 U.S. labor unions received little protection from the law. Employers used many tactics to prevent employees from joining unions and to disrupt union activities in the workplace. The passage of the National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act (29 U.S.C.A. § 151 et seq.), marked the beginning of affirmative federal government support of unionization and Collective Bargaining. The NLRA prohibits employers from taking certain actions against their employees and the unions that represent them. A prohibited action is called an unfair labor practice.
Section 158 of the NLRA lists employer actions that constitute unfair labor practices. Section 158 (a)(1) prohibits employers from interfering with the rights of employees to establish, belong to, or aid labor organizations; to conduct collective bargaining through the employees’ chosen representatives; and to participate in concerted activities, such as strikes, for the purpose of collective bargaining or other mutual aid or protection.
Section 158 (a)(3) outlaws employer-formed or -dominated “company unions.” Section 158 (a)(3) forbids employers to discriminate in hiring, firing, and other aspects of employment on the basis of union activity. Section 158 (a)(4) prohibits firing or discriminating against any employee because he has filed charges or testified before the agency charged with enforcing the statute. Section 158 (a)(5) requires employers to engage in collective bargaining with employee representatives.
Banning the Permanent Replacement of Economic Strikers: Fair or Unfair?
The National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act (29 U.S.C.A. § 151 et seq.), affirms the right of employees to strike in order to force an employer to provide better wages or working conditions. Workers who strike for economic gain may be permanently replaced by the employer, however, as long as the replacement workers do not receive better terms than those offered to the strikers. The NLRA prohibits the replace-ment of workers who strike toprotest an unfair labor practice.
Unions have long sought to amend the NLRA to prohibit the permanent replacement of striking workers in all strikes, not just unfair labor practice strikes. They see the use of permanent replacement workers as the ultimate unfair labor practice and argue that it gives the employer disproportionate bargaining power in labor-management negotiations over wages and working conditions. Meanwhile employers contend that banning permanent replacement workers would give unions too much power and would cripple U.S. business.
Legislation that would ban permanent replacement workers has been defeated repeatedly in Congress. After the last congressional defeat of such legislation, President bill clinton issued Executive Order No. 12,954 on March 8, 1995 (60 FR 13023). This order barred businesses that permanently replace striking workers from receiving federal contracts. The president concluded that the hiring of permanent replacements escalated labor disputes and led to longer strikes, both of which are contrary to sound labor policy.
A coalition of business groups immediately challenged the order. In Chamber of Commerce of the United States v. Reich, 74 F. 3d 1322 (D.C. Cir. 1996), a three-judge federal appeals panel struck down the executive order, ruling that federal Labor Law preempted executive action. Efforts by some state legislatures to ban permanent replacement workers have also been struck down on the basis that the NLRA preempts State Action.
Union leaders continue to seek modification of the NLRA. The leaders of big industrial unions blame the loss of some strikes on the hiring of permanent replacements. Though employers have had the right to hire permanent replacements for decades, the unions contend that employers have only used this type of hardball tactic on a consistent basis since the 1980s. According to the unions, the loss of strikes because of this tactic has demoralized their members and put unions on the defensive in wage and working condition negotiations.
Unions argue that it is unfair for U.S. workers to lose their jobs when they exercise the fundamental right to strike. The hiring of permanent replacements is a strikebreaking tactic that undermines the Collective Bargaining process set out by the NLRA by ultimately giving employers the upper hand in negotiations. An employer’s express or implied threat to hire permanent replacements also threatens union solidarity, as members question the wisdom of going on strike.
In addition, unions are concerned that the hiring of permanent replacements can result in the demise of the union at the company that has been struck. Replacement workers, who are subjected to the threats and taunts of strikers, are unlikely to join the union at some future time. Thus, the employer not only prevails in a labor strike but also secures a nonunion workforce.
Apart from the effect on union-management relations and bargaining power, supporters of a ban on permanent replacements contend that consumers are hurt by such hiring. They argue that permanent replacements threaten the reliability and quality of products because those workers are less experienced and cannot perform as well as those with longtime service to a company.
U.S. businesses, however, believe strongly in the right to hire permanent replacement workers. They reject the idea that hiring temporary replacement workers during a strike is a viable option. Temporary replacements must be fired after an economic strike has been settled because union workers are entitled to reclaim their jobs. Employers point out that temporary workers require a substantial investment in training and that it is difficult to promote morale and loyalty among workers whose jobs will end with the resolution of the strike. Employers argue that it is more efficient to hire permanent replacements and provide them with sufficient training to ensure that the quality and reliability of a company’s products will not suffer.
Defenders of replacement workers also believe that the right to hire during a strike is essential to the balance that exists between labor and business. The right of labor to strike for better wages and working conditions is matched by the right of business to hire permanent replacements. If permanent replacements were banned, employers would be forced to capitulate to overreaching union economic demands or face more frequent and crippling strikes.
In addition, nonunion employers fear that a ban on replacement workers would give unions more leverage in organizing workers. A union could promise that workers who joined the union would be able to resume their jobs after a strike for economic demands, no matter how excessive.
Business leaders also contend that a ban on permanent replacement workers would drive up labor costs, which would be bad for the national economy. A ban would give unions too much power and encourage them to strike. Businesses assert that permitting the hiring of permanent replacements deters unions from striking and leads to more reasonable and productive collective bargaining.
“Preventing Replacement of Economic Strikers.” 1990. Hearing Before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred First Congress, Second Session, on S. 2112 (June 6).
Thusing, Gregor, and Sven-Frederik Balders. 2000. “Permanent Replacement of Economic Strikers in the United States of America and the Federal Republic of Germany: Two Sides of the Same Coin.” Temple International and Comparative Law Journal 14 (spring).
The NLRA proved to be an effective tool for labor unions. Union membership and economic power grew so rapidly between 1935 and 1945 that the business community complained that unions were abusing their new strength. As a result, in 1947 Congress passed the Taft-Hartley Act, also known as the Labor-Management Relations Act (29 U.S.C.A. § 141 et seq.), which amended the NLRA by prohibiting certain union activities as unfair labor practices. These activities include secondary boycotts (boycotts against the employer’s customers or suppliers), jurisdictional strikes over work assignments, and strikes to force an employer to discharge an employee on account of her union affiliation or lack of it.
The NLRA also established the national labor relations board (NLRB) as an Administrative Agency to administer and interpret the unfair labor practice provisions. The NLRB hears allegations of unfair labor practices and makes rulings, which may be appealed in the federal courts.