Labor's Lost Right to Strike

by Holly Knaus

ORGANIZED LABOR SUFFERED a significant defeat in June when a pro-business Republican contingent in the Senate blocked legislation prohibiting employers from hiring permanent replacements for striking workers. Supporters of the striker replacement bill failed by three votes to limit debate and move the measure toward passage. Senate Republicans, led by Orrin Hatch, R-Utah, had threatened a filibuster if the bill failed to get the 60 votes necessary to impose cloture.

The bill was introduced in the House by William Clay, D-Missouri, and in the Senate by Howard Metzenbaum, D-Ohio. The House approved the bill last July. The Senate voted twice in one week against imposing cloture on the bill, despite a desperate last-minute concession by the AFL-CIO which would have limited unions' ability to strike in exchange for restrictions on the use of permanent replacements.

 "We are extremely disappointed," says Dick Blin, spokesperson for the United Paperworkers International Union, a union which has been hit hard by business's permanent replacement offensive.

Replacement workers: a growth industry

 The Supreme Court established the right of employers to permanently replace workers striking for economic reasons in its 1938 decision, Labor Board v. Mackay Radio. (Permanent replacements cannot be hired in lockouts or strikes over unfair labor practices.) The Mackay Radio ruling has been widely criticized since its seems to contradict the 1935 National Labor Relations Act's guarantee of the right to strike without fear of being fired. Union leaders hold that the distinction between being "fired" and being "permanently replaced" is meaningless.

 Employers have increasingly turned to the permanent replacement tactic as an important tool in their full-scale assault on unions. In 1981, then-President Reagan fired striking air traffic controllers and hired permanent replacement workers to fill their jobs. Since then, management has brought in permanent replacement workers in many major U.S. strikes, including ones at Ravenswood, Phelps Dodge, International Paper, Eastern, Greyhound, the Daily News and Pittston [see Replacing the Union: Business's Labor Offensive," Multinational Monitor, April 1991 ]. More than 55,000 striking workers saw permanent replacements fill their jobs in 1990 and 1991, according to the Bureau of National Affairs, and 55 percent or approximately 29,000 did not return to their jobs at the conclusion of the dispute.

 Union officials say that employers' threats to use permanent replacements undermine collective bargaining by undercutting workers' ability to strike. Management gains an unfair negotiating advantage if the law allows employers to replace striking workers with a lower-paid, non-union workforce, they claim. Employers increasingly advertise for replacements even before negotiations begin, putting unions on the defensive in contract negotiations.

 Jack Sheehan, legislative director for the United Steelworkers of America, says that the permanent replacement issue is particularly crucial during periods such as the current economic downturn. When the economy is robust, he says, management is reluctant to force a strike and lose production time. However, during harsher economic periods, business "may want to push for cuts, pass it on to the workers and take the risk of bringing in replacements," if workers resist wage and benefit cutbacks.

Concessions fail again

 On June 11, the AFL-CIO announced its willingness to limit workers' ability to strike in exchange for passage of the striker replacement bill. The labor concession was embodied in an amendment to the bill proposed by Senator Bob Packwood, R-Oregon, and accepted by Metzenbaum.

 The Packwood amendment would have barred employers from bringing in permanent replacements only if the union first sought to send unresolved disputes before a three-member fact-finding panel appointed by the Federal Mediation and Conciliation Service, and then accepted the panel's recommendations. If the union refused to submit the dispute to the panel or rejected its recommendations, management would be free to hire striker replacements.

The conditioning of a ban on permanent replacements on unions' acceptance of binding arbitration represented a major concession by the U.S. labor movement, which has long resisted limits on its right to strike as a matter of principle and survival. In a June 11 statement on the amendment, AFL-CIO President Lane Kirkland attempted to justify the labor organization's acceptance of a measure that would limit unions' right to strike: "Union members do not fear the fact-finding process. It is consistent with their goal of peaceably resolving disputes with their employers and thereby avoiding strikes. ... We can support [the amendment]." AFL-CIO spokesperson Muriel Cooper says the decision to support the amendment was made with the conviction that the bill "would still protect workers and workers' rights."

 Blin, who says that the striker replacement bill was the "number one legislative priority" of the Paperworkers, acknowledges that the amendment "watered down" the bill. He says, however, that labor supported it in the belief that adding the provision to the bill "was the only way it had a chance of passing." Labor leaders hoped the amendment would mollify industry complaints that banning striker replacements would induce unreasonable wage demands.

 The Packwood amendment was "a last ditch effort to gain [the votes of] some Republicans, and maybe some of the Southern Dixiecrats," says Blin. Both he and Sheehan agree, however, that the amendment failed to gain the bill any votes.

 Blin and other union officials were particularly angered by the position of the Democratic senators from Arkansas, Dale Bumpers and David Pryor, both of whom voted against imposing cloture. The Paperworkers have the largest union membership in that state. The bill had the support of Arkansas Governor and Democratic presidential nominee Bill Clinton, says Blin, who wonders why the state's senators failed to move the bill toward passage. "Why not land it on Bush's desk and make an election issue out of it?" he asks, noting that the President was expected to veto the legislation had it been passed by Congress.

 The Steelworkers have large membership in aluminum smelting facilities in Arkansas, and Sheehan expressed "deep disappointment" in the two senators.

By voting against limiting debate, Sheehan says, senators were able to protect themselves and Bush from "exposing their position. It's a convenient way to avoid taking a vote on an issue" and it enabled Bush to avoid imposing an unpopular veto. Senate Republicans used "the filibuster tactic to protect themselves and the president" from taking a stand on controversial legislation, he argues.

Hoping for a better day

 Cooper says that "workers will think about this when they go to the polls" in November. Blin thinks that a turnover in Congress and in the White House may pave the way for the passage of similar legislation next year.

Sheehan, however, is uncertain whether the legislation will be re-introduced into the next Congress. He hopes that a turnover in the White House will lead to more sweeping labor reforms that would address the permanent replacement tactic along with many other issues. However, he says, if Bush manages to hold on to the presidency, labor will again be confronted with an anti-worker administration, and would certainly face a veto of any legislation attempting to limit the rights of employers.