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

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

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 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