Strikes

1. 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 2003 17 in 2004 22 in 2005 20 in 2006 21 in 2007 15 in 2008 5 in 2009 (2 private sector, 3 public)

3. 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

4. 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

5. 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)

6. 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

7. 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?

8. 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?

9. 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

12. 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

13. 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

14. 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

15. 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)

16. 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)

17. 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”

18. 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

19. 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

20. Reflection Question 4 Assume 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