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Day 17

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Management is Playing With a Stacked Deck Union Strikes and Replacement Workers

Union Strikes and Replacement Workers

by DAVID MACARAY

"Labor cannot, on any terms, surrender the right to strike"

–Louis Brandeis, U.S. Supreme Court Justice

Not to disrespect anyone, or pit one class of labor organization against another (God knows, unions need all the "solidarity" they can muster), but in the matter of work stoppages, there are strikes, and then there are strikes.

Take, for example, the recent WGA (Writers Guild of America) walkout, which lasted for 100 days and received widespread national attention. This strike not only had a debilitating effect on the economic lives of 11,000 writers but, reportedly, was responsible for hundreds of millions of dollars in lost revenue for Hollywood.

Still, as crippling as the WGA strike may have been, it also had an extraordinarily fortunate upside: namely, the action was guaranteed to have a happy ending. Even if the union fell short of getting everything it wanted by striking, everybody involved was pretty much assured of returning to work, getting their old jobs back and resuming their normal lives. Knowing that had to be very comforting.

After all, even in the wake of a lengthy shutdown, the movie and television studios aren’t going to pull up stakes and relocate to Mississippi. Or Malaysia. Equally reassuring, the studios aren’t going to go out and hire cheap writers either to serve as temporary fill-ins or to permanently replace the existing writers, no matter how ugly the strike or how bitter the aftertaste. The Hollywood guild system simply doesn’t work that way.

Yes, it was a major shutdown, and yes, it took courage and commitment for the union to confront the formidable AMPTP (Alliance of Motion Picture and Television Producers) the way they did. But because of the WGA’s unique circumstances, the strike was nowhere near as terrifying as "traditional" industrial strikes have been, where union members didn’t know if the place they used to work would still be there when the strike was over, or, if it were, if their jobs would still exist. Scary.

Replacement workers are poison to organized labor. In effect, they sabotage a union member’s right to strike, at least insofar as that right was understood and expressed in the comments of Justice Brandeis. What’s the advantage of having the right to strike if, by shutting down the operation, a worker winds up losing his job because he’s been permanently replaced by a new hire? Going on strike is a sacrifice you make to improve your long-term economic status, not an exercise in self-annihilation.

Realistically, isn’t the prospect of being permanently replaced pretty much the same thing as not having a genuine "right" to strike? ("Feel free to walk, fellas, just so long as you know there won’t be a job waiting for you when you get back. But don’t let that affect your decision.")

At the urging of organized labor there have been numerous attempts by the U.S. Congress (going all the way back to the 1930s) to pass legislation banning the hire of permanent replacement workers. Alas, all such legislation has been defeated by Republicans and, if needed, the requisite sufficiency of Democrats joining in, either by House vote or Senate filibuster.

After its most recent congressional defeat, President Bill Clinton (again, at the urging of organized labor) decided to take a different tack. On March 8, 1995, Clinton issued Executive Order No. 12,954, which expressly forbade businesses that permanently replaced striking workers from receiving federal contracts.

Predictably, business interests challenged the Executive Order and, equally predictably (given the "market" bias of our judiciary), a 3-member federal appellate court overturned the order.

Union membership has fallen to 12 per cent (7 per cent in the private sector), down from a high of 35 per cent in the 1950s. The labor movement is weak, and so workers lack organization and hence power. But there are two "adjustments" that could instantly and dramatically change all that, two things that would immediately put power back in the hands of the American worker.

First, if the EFCA (Employee Free Choice Act) becomes law, employees will have the right to join a union simply by filling out cards declaring their desire to do so. No more protracted, NLRB-sanctioned union elections; no more stalling tactics and devious propaganda drives by management.

If a majority of the employees want to join a labor union, presto!, they become union members. This would be an example of raw, grassroots democracy in action, something which, lip service aside, most companies would cringe at seeing happen. The good news: in 2007, the EFCA passed the House; the bad news: it was stalled in the Senate via a Republican filibuster.

Second, the Congress needs to pass a law forbidding (or strongly limiting) the hire of permanent replacements. If businesses wish to hire a temporary workforce to keep things going during a strike, by all means, let them do so; they shouldn’t be deprived of the ability to continue to make a profit. But when the strike is over, workers need to know they’ll be returning to their old jobs. Without that guarantee, a strike is not a realistic alternative. And without the threat of a strike, workers are defenseless, having no leverage whatever.

These two simple economic "freedoms"-the unimpeded right to join (or, indeed, withdraw from) a labor union, and the guarantee that workers won’t lose their jobs by striking-could change everything. With just a little loosening of the restraints, unions could very well go from being "anachronistic" to being absolutely relevant. And that fierce, turbo-capitalist locomotive, roaring uncontrollably down the tracks, could be derailed.

DAVID MACARAY, a Los Angeles playwright and writer, was president and chief contract negotiator of the Assn. of Western Pulp and Paper Workers, Local 672, from 1989 to 2000. He can be reached at: dmacaray@earthlink.net