NLRB ruling could strengthen the power of strikes

WASHINGTON — If the National Labor Relations Board accepts a recommendation from its own general counsel, the right of workers to strike for better wages and conditions could be greatly strengthened.

NLRB General Counsel Richard Griffin has asked the Board to rule that United Site Services of California must prove, not just state, that it could not survive if it did not hire permanent replacements for members of Teamster Local 315, who are on strike.

Currently, if workers strike because their employer has violated a labor law, and the NLRB agrees that a violation took place, the employers cannot legally hire permanent replacements.

However, members of Local 315 walked out because negotiations about wages, benefits and working conditions had broken down. In such a case, the NLRB allows employers to hire “permanent replacements” to keep the company afloat.

However, for many years the NLRB has required no proof that a company would fail if it did not hire replacements for strikers.

This is one reason for the huge decline in the number of strikes in recent years. Federal data show last year there were only 12 strikes and lockouts, affecting a total of 47,000 workers nationwide, and that this represented less than 0.05 percent of total worker-days.

In 1952, there were 470 strikes or lockouts involving 2.75 million workers.

Not forcing employers to prove the need for hiring “replacement workers” takes the strike weapon out of workers’ hands, says pro-union Philadelphia labor lawyer Mark Kaltenbach. “The right to strike will only become a reality when the board jettisons the presumption” that employers can hire permanent replacements, he wrote in the On Labor blog.

Kaltenbach, author of a paper on the right to strike and “replacement workers,” notes that even the U.S. Supreme Court has recognized that hiring permanent replacements is “inherently destructive” of the right to strike. But it hasn’t questioned employers’ assertions of the need for the replacements. The NLRB should demand proof of need, Kaltenbach says.

That’d exactly what Griffin is proposing.

Griffin’s brief to the NLRB states that nothing in any Supreme Court decision “precludes the board from considering [my] argument to overrule Hot Shoppes,” the original case, decades ago, that laid down rules for hiring permanent replacements.

In their brief to the NLRB, attorneys Andrew Baker and Lorrie Bradley of Oakland, Calif, present arguments to back up Griffin’s position. Baker and Bradley represent Teamsters Local 315.

“The crux of” United Site Services’ “argument,” they write, “is that the Supreme Court and the board recognized that an employer’s hiring of permanent replacements is in and of itself the legitimate justification for hiring permanent replacements and denying striking employees their jobs upon conclusion of a strike.”

However, Baker and Bradley continue, “This of course begs the question of why the employer hired permanent replacements in the first place. And this tautological reasoning – that the inherently destructive conduct is inherently legitimate – is exactly what is wrong with Hot Shoppes and why the board should now overturn that mistaken decision.”

The attorneys write that they recognize that “it is true that (Supreme) Court and board precedent permits employers” to hire permanent replacements “as an economic weapon.”

However, they say, “it does not follow that” labor law “precludes the board from requiring employers to prove the necessity of hiring permanent replacements to keep its operations underway.”

The NLRB is expected make a decision in the matter soon.



Mark Gruenberg
Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.