The National Labor Relations Act (NLRA) protects the right of all employees
subject to the Act’s jurisdiction to use the “employees’ most
powerful weapon” in a struggle with their employers for better or different
terms and conditions of employment from those they have at any given moment.
That weapon of economic persuasion is the strike. Those who engage in strikes
are engaged in concerted activity that is clearly protected under the NLRA.
Employees say to their employer, “If you will not give us the better
terms we wish, we will withhold our labor from you until you do so.” While
on strike employees receive no pay. Employers, while their employees are on
strike, find it difficult to run their businesses and thus may lose money.
So it was in 1935, when the NLRA was passed.
In 1938, the law took a dramatic step sideways when the Supreme
Court, in its Mackay Radio and Telegraph Company decision, declared
that during a strike an employer could hire not just temporary workers to replace
strikers but could make those replacements “permanent employees”,
relegating the strikers to a “preferential hire list”, under which
the strikers, after abandoning their strike, could be rehired in order of reverse-seniority
only as replacements left for various reasons. The strike, however, remained
a weapon to be used by the employees at their choice.
In 1987, however, in its Harter Equipment decision,
the National Labor Relations Board (NLRB) decided that, so long as a true bargaining
impasse has been reached in collective bargaining, the employer may utilize
the economic weapon of locking out its employees and continuing to operate
its business with temporary employees. While temporary employees may not be
the permanent replacements allowed by Mackay, the Harter case
for the first time allowed an employer to utilize a strike as an employer weapon
for the sole purpose of forcing the employees to accept the employer’s
demands in collective bargaining.
Since Harter, the popularity of these “reverse
strikes” has grown from isolated incidents at companies like Harter Equipment
in New Jersey, involving fewer than 25 employees, to the nationwide notoriety
of situations such as the Pacific Maritime Association’s 2002 lockout
of more than 10,000 dock workers at 29 major west coast ports, imperiling trade
with many countries on the Pacific rim. This lockout had to be ended by the
obtaining of an injunction by the Bush Administration.
Also on the west coast there was the 2004 lockout of more
than 2,000 hotel workers at over 20 hotels in downtown San Francisco. That
situation was resolved – in the sense that the lockout was ended – only
after the intervention of the San Francisco Mayor’s office. The grocery-store
labor dispute of 2003 involved both employee strikes and employer lockouts
and at times involved over 70,000 employees.
Finally, to be noted is the still-ongoing lockout of all
the players by the National Hockey League. Commentators on both sides say this
lockout has the potential to be the end of hockey as it has existed in the
United States. Neither the President nor any hockey city Mayor seems interested
in stepping in to bring this one to an end; many of the players are in Europe
playing for other teams, and the parties to the labor dispute still refuse
to speak to each other.
Meanwhile, in its October 2004 decision dealing with a lockout
at a Kalamazoo, Michigan, employer called Bunting Bearings Corp., the NLRB
seems to have made it a little less risky for an employer to call one of these
reverse strikes. In the decision, the NLRB held that even though the only employees
locked out were the union members and non-union member probationary employees
were allowed to continue working, the lockout was legitimate since it was “in
furtherance of a legitimate bargaining position . . . [and had] only a comparatively
slight adverse effect on protected employee rights.” The dissent in the
case argues strenuously that the Bunting Bearing lockout was not intended solely
to put economic pressure on the union but was also intended to “discourage
union membership or otherwise discriminate against union members as such”.
Whether one agrees with the majority or the dissent, all
will agree that the decision has the potential to make it a little easier for
employers to call a reverse strike than it was previously. Whether the tactic
continues to grow – as it has over the last five or six years – or
begins to lose its popularity due to the results in situations such as the
three west coast lockouts discussed above remains to be seen. Probably, though,
we have not yet seen the last of it.
Albert W. Palewicz, an attorney with the National Labor Relations Board for
over 25 years, has been active in MSBA and its Labor and Employement Law Section
since 1985. He is a past Chair of the Section and has edited its quarterly newsletter
since its beginning ten years ago.