Strikes and Related Activities

1. Strikes and Related Activities • Strikes: Concerted withdrawals of labor, usually an economic pressure tactic • Important as an influence (the strike threat/threat to take a strike) even in the absence of their actual occurrence. That is, the possibility of a strike is critical • Wisdom: Peace often prevails in one place or time because of a conflict somewhere else or at some other time

2. Selected Theories of Strikes wages • Hicks’ Model • Both sides expect a strike will result in an eventual wage settlement, Wes • Management is willing to pay a higher wage, Wes+Wm, to avoid strike costs, • Union is willing to accept a lower wage the Wes to avoid strike costs, Wes-Wu • These two points define the contract zone • There should be no strikes except for mistakes (miscalculations, differing expectations, assymetric information) • Kerr and Siegel: Isolated communities, rugged and dangerous work • Marxists: Strikes reflect worker militancy Wes+Wm Wes Wes-Wu

3. Contractual or “economic” strike: Re terms of a new contract (or renewal) Grievance strike: Re application/interpretation of current contract (rare due to GP/Arbitration) Wildcat strike: Without official approval, probably in violation of agreed procedures or no-strike clause (suit for damages, injunction possible) ULP strike: Re mgmt ULPs Can’t replace strikers (if true); they get reinstated w/ backpay Why? Discourage ERs from provoking strikes; push peace Jurisdictional: Re work assignment; ER is caught in the middle. Illegal unless ER violates prior NLRB rule General: Re government or employers generally(rare in U.S.) Sympathy: In support of other’s dispute; often mixed w/ secondary activity Strikes:Various Types

4. Strike-Like Actions • Slowdowns, often via “working to rule” or “soldiering” (following rules to the letter) • May violate contract, but hard to prove or counter • May be part of union “in plant” strategy when strike seems too dangerous (fear of replacement) • Others (some similar), mostly in public sector and elsewhere where strikes are limited/banned • “Blue flu” or “white flu” (mass sick-outs) • Mass resignations • Speed-ups (e.g., state troopers writing tickets)

5. Lockouts • Employer-initiated. ER bars current workforce and may hire temporary replacements • Use is restricted by NLRB to “defensive purposes” • Why? ER already has strike counter -- the ability to take a strike (and hire replacements). Also, ER controls the status quo in the absence of a contract (e.g., can simply impose its last offer) • Defensive purposes • Preventing sabotage (if grounds for expecting) • Prevent whipsawing in multi-employer arrangement • Other: Broader definition under Reagan NLRB (e.g., impasse, but ER can’t create impasse in order to use lockout)

6. Boycotts • Concerted refusals to purchase or handle a product • Restrictions • Union ULP provisions of NLRA/LMRA, basically to prevent “secondary activities,” to contain disputes to immediate parties • Some exemptions re “struck work” and other special conditions • Generally okay if the boycott call is directed to consumers and focuses on the specific product involved in a primary dispute (e.g., say Quincy Farms and UFW have a primary dispute) • “Don’t buy Quincy Farm mushrooms” -- okay • “Don’t shop at Publix” -- not okay • “Comrades, don’t stock QF mushrooms on shelves” -- not okay

7. Picketing • A form of speech; hence restrictions can run afoul of First Amendment (free speech protections) • Thornhill Doctrine (from 1940 court decision) banned most all restrictions; courts have since retreated from that stance, and additional legislation has restricted some particulars • Three major forms; restrictions vary by type • Recognitional -- recall some restrictions in ULP provisions • Consumer -- to call consumer boycott; least restricted • Informational -- to call attention to dispute, dissuade “scabs,” inform others (who may exercise their sympathy strike rights) • Legality issues • Purpose and effects considered (see types above re purpose) • Can’t block entry and exit; no mass picketing to this effect • Conduct subject to usual laws; but name-calling (“scabs!”) not a concern

8. Levels of Strike Activity • Record low levels in recent years: .01% of potential work time “lost” compared to record high of 1% in 1946 • Much more time is “lost” to coffee breaks • Figures overstate real loss. Overtime and extended seasons help offset • Fewer than 10% of contract expirations yield strikes • Steady downward trend reflects: • More emphasis on cooperation? Perhaps • Maturation and better negotiation skills? Maybe • Declining unionization and diminished strike effectiveness? Almost certainly • Strike losses = frequency x scope x duration • In effect, measured “volume” or level of strike activity is “3D” • Shapes differ across nations, reflecting different strike purposes, etc. • Overall, U.S. strike activity level is moderate among advanced industrial nations; longer duration, but less frequent and smaller scope

9. Strike Decisions • Some strikes are simply mistakes, but strikes can and usually do serve important functions • Mainly, as intended, to exert economic pressure for settlement • Therapeutic value -- a way to “blow off steam,” vent frustrations • Resolve factionalism by rallying against an external opponent • Maintain credibility of the strike threat for future use • Modify members’ “excessive” expectations • Bring real authorities to the negotiation table (“Final Offer”?) or change budget to enable opponent concessions • Change bargaining structure (alter power balance) • Serious business, not to be taken lightly • Could be very damaging or fatal to either side • Violence may stem from intense feelings and confrontations • Bitterness may endure after settlement, damage efficiency

10. Strike Decisions -- Costs • Unions and workers • Lost wages and benefits hard to make up later; strike benefits are usually pretty meager (e.g., $100 week). • Permanent job losses (via replacement and other means) • Union might lose the unit; decertification often follows a failed strike • Psychological costs. Sense of self worth often found in one’s work, and prolonged idleness can be devastating. Possible “carnival atmosphere” fades fast. It got old the first day -- Tallahassee Greyhound striker quoted in Democrat in the early 1990s about long strike • Companies • Loss of sales, customers, and market share • Fixed costs (e.g., loans) won’t go away • “Ill will” -- public image, customer and employee relations may be damaged • Share price damage appears to be temporary

11. Controversy:Striker Replacement • McKay Radio court decision (1938) • Law (NLRA) clearly bans discrimination on the basis of union activity, including firing workers for strike action • Hiring permanent replacements, however, is another matter (says the court) • As a practical matter, workers see little value in this distinction • Perhaps partly due to Reagan’s PATCO actions, ERs began to use and threaten this option increasingly in the 1980s • Not surprisingly, permanent replacement provokes strong feelings on both sides • ERs feel this is a basic right that keeps unions from getting “out of line” • Workers and unions feel this voids any alleged protection for union activity, constitutes “economic capital punishment” and threatens existence • Canadian experience: Bans show no great adverse impact • Clinton’s efforts to ban use of replacements unsuccessful

12. National Emergency Disputes • Recall Taft-Hartley Act established procedures for strikes (or lockouts) that threaten national safety or health • Procedure and experience under NLRA/LMRA • If President perceives a threat, Attorney General is instructed to seek temporary injunction; Note independent role for courts • 80-day “cooling off” period -- injunctions put strike “on hold” while mediation and fact finding efforts proceed • It’s “open-ended”: No clear statutory guidance beyond President’s report to Congress. The “or else” threat: What will Congress do? • Used less than once a year, not recently (not since 1978 coal strike?) • Maybe the “or else” (uncertainty) threat works; parties usually settle before cooling-off period ends • RLA provisions (railroads and airlines) • Encourage intervention more routinely -- emergency boards “overused” • Better experience in recent years -- less use

13. Other Strike-Related Issues • Additional legal matters • Common situs (site) picketing and reserve gate doctrine • Ally doctrine • Other primary-secondary quagmires and exceptions • Bankruptcy laws vs. labor relations laws • Legal and philosophical questions • Is there a right to strike? • Natural law, constitutional, statutory, common law? • Some contend that “natural law” assures right to strike • Constitution protects free speech,assembly, and limits involuntary servitude, but do these combine to protect strike actions? • Common law: Court decisions have over the years consistently recognized a right to strike (e.g., Commonwealth vs. Hunt, 1842) • NLRA/LMRA at least implicitly recognizes a general right to strike by spelling out restrictions and their specificity