1. 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 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

2. Major U.S. Strikes, 1950-2009 (involving 1,000+ ees)
(2 private sector,
3 public)

3. 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

4. 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

5. 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)

6. 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

7. 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?

8. 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?

9. 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

11. Table 8.1: Types of Strikes

12. 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

13. 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

14. 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

15. 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)

16. 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)

17. 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”

18. 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

19. 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

20. 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