Strikes Strike is not weapon it used to be

Many unions have decided to try other tactics to deal with disputes E.g., “corporate campaign”

Majority of strikes are over negotiation of CBA Strikes currently occur in <5 percent of negotiations Average duration runs 15-20 days

Longest strike beginning in 2009 was 27 days, involved Bell Helicopter Textron and UAW

Minority are relatively short strikes during term of CBA Historical trends

Positively correlated with business cycle, negatively w/ real wage growth

2

Major U.S. Strikes, 1950-2009 (involving 1,000+ ees)

14 in 200317 in 200422 in 200520 in 200621 in 200715 in 20085 in 2009 (2 private sector, 3 public)

Management Response to Strike Shut down operations Continue operations

Use supervisors and other non-production Ees Feasible where firm not labor-intensive, maintenance

demands low Hire replacements

Puts strikers’ jobs in jeopardy, therefore high potential for conflict

Contract-out work

Legal Environment Er Conduct

Legal for Er to Advise Ees of their legal right to refrain from striking State that work is available Put into effect most recent offer to U

Illegal for Er to Refuse to bargain during strike Promise strikers (or replacements) better terms than had

been offered at bargaining table Tell strikers they will be discharged if they fail to return

Legal Environment Er Conduct

In economic strike (one over mandatory subject of bargaining), Er may hire “permanent” strike replacements Mngt may replace strikers, not terminate Once strikers replaced, they are entitled to

reinstatement as job openings occur No legal obligation to discharge replacements to recall

strikers, but may do so (and U will likely request this in bargaining)

Legal Environment Er Conduct

In ULP strike (one caused by or prolonged by mngt ULPs, typically 8a5), strikers entitled to reinstatement even if replacements have been hired Note therefore common for refusal to bargain charges

to be filed during negotiations Economic strike may be “converted” to ULP strike

upon Board finding of ULP Er therefore bears some risk when retaining

replacements in that if ULP found (down the road), strikers may be owed back pay

Labor Law Discussion Case 7 Did the company’s plan to replace striking

Ees by inverse seniority violate the NLRA? Was the strike a ULP strike? Were the strikers entitled to reinstatement as

of 7/25? Why is it important whether the cost-saving

rationale was offered to the U 6/27?

Ethics in Action: Strike Replacements or Scabs? Is it ethical for a company to use permanent

strike replacements? Temporary? Is it ethical for individuals to cross picket

lines? Is it ethical for unions to attack strike

replacements as “scabs” and try to prevent them from crossing picket lines?

Legal Environment Picketing

Strikers found guilty of picket line misconduct not entitled to reinstatement Standard used by Board is where (mis)conduct “reasonably tends

to coerce or intimidate” “Sympathy” striker (non-member of striking bargaining

unit, e.g., Teamster driver during UFCW strike) is engaged in protected activity and cannot be terminated May be (permanently) replaced

Unlawful for U to establish secondary picket line against secondary Er However, “allied” Er (one doing struck work) can be picketed

Mass picketing unlawful U may not force Er to impasse over permissive subjects

of bargaining

11

Table 8.1: Types of Strikes

Lockouts Whether a work stoppage is a strike or

a lockout determines the legal use of replacement workers Lockouts are initiated by the employer

A defensive lockout occurs when workers are locked out to prevent employer losses

An offensive lockout occurs when an employer locks the doors to put pressure on the union

Lockouts are commonly used to control the timing of the work stoppage Contract between NBA and National Basketball Referees

Association expired 9/1/09, league locked out referees and used replacements during exhibition games

Lockouts Lockouts are legal as long as they protect or

support the employer’s bargaining position Lockouts are illegal if they appear to be an

attempt to destroy the union Using temporary replacements during

lockouts is legal Hiring permanent replacements is illegal

Changing Union Tactics Diminished value of strikes

Org labor claims mngt increasingly attempting to (1) force strike, (2) replace strikers, (3) prolong strike to set up decert election Strikers eligible to vote in any election for up to 12

months from beginning of strike

Changing Union Tactics Alternative strategies

Influencing public opinion Who’s the “villian,” who’s the underdog?

Exerting economic pressure Consumer and supplier boycotts

U must avoid illegal secondary boycotts, but “publicity picketing” allowable

U pressure on banks Handbilling found to be lawful under NLRA, absent any

“coercive” conduct such as picketing Threats to withdraw funds (U limited in its ability to force

withdrawal of pension funds, given fiduciary responsibility of fund trustees)

Changing Union Tactics Alternative strategies

Political pressure Complaints to regulatory agencies (esp OSHA)

Corporate pressure Appeals to corporate parent, directors, shareholders

See Corporate Campaign, Inc.

“Workplace strategies” Ees pressure Er from within

Loading grievance machinery “Work to rule”

Slowdowns, however, unprotected concerted activity (same for ‘partial strike’ such as refusal to work overtime)

Mediation Most widely used, most informal type of third-party

intervention Voluntary under NLRA, mandatory under RLA

Neutral third-party helps negotiators to reach voluntary settlement No power to impose settlement – facilitator

Characteristics of mediator Must be acceptable to parties, experience helps

How to get experience so as to be acceptable?

Sources of impasse Most likely to help when procedural breakdowns, less

likely when “negative contract zone”

Factfinding and Arbitration More formal intervention

In private sector, largely limited to national emergency disputes under Taft-Hartley

In public sector, often used (imposed by law) when strikes prohibited (esp for police and firefighters)

Terminology Interest arbitration

Voluntary arbitration (parties agree) Compulsory arbitration (law mandates) Conventional arbitration (split the difference?) Final-offer arbitration (package or by issue)

Should result in less “chilling effect” WSJ editorialized in favor of amending RLA to include best-offer

arbitration (8/24/05) But editorialized in opposition to interest arbitration in

Employee Free Choice Act (5/28/09) Rights (grievance) arbitration

Factfinding and Arbitration Selection of Interest Arbitrators

Ers tend to prefers arbs w/ training in economics Unions tend to prefer arbs w/ legal training, dislike

economists Factfinding’s effectiveness has declined in public

sector, led to more use of arbitration Factfinding survives in Taft-Hartley procedures (in

part because parties oppose compulsory arbitration) Under T-H, fact-finding board investigates and reports,

but does not make recommendations After report, President can ask federal court to enjoin

strike or lockout (for up to 80 days) if court finds dispute meets national emergency criteria Most recently, West Coast dockworkers strike in 2002

Reflection Question 4Assume that the Indiana legislature is writing a

comprehensive bargaining law (to replace the current law covering only teachers) and you have been asked to design the law’s impasse resolution procedures. Outline a detailed plan

Do you allow strikes? Do you require any types of third-party impasse

resolution procedures? See Indiana Education Employment Relations Board