LABOR'S CHALLENGE REPLACING THE UNION: Business's
Labor Offensive By Robert Weissman AS THEIR CONTRACT APPROACHED expiration
in the beginning of 1989, the members of United Autoworkers (UAW) Local
486 in Cleveland, Ohio became suspicious. Their employer, Midland Steel,
a maker of truck frames, did not seem to be negotiating in good faith.
According to Don McGee, president of the local, there were more than 40
points of contention when the union and the company started bargaining
in January; about 28 remained when the contract expired on March 1. Meanwhile,
Midland was hiring new workers. The UAW determined that Midland was trying
to force it out on strike. Refusing to fall into the company's trap, the
Midland workers continued working. But the company was determined to get
rid of them. On May 28, bypassing established disciplinary procedures,
it fired more than 250 union members for holding a safety meeting during
working hours. On June 2, it fired several dozen more. The remainder of
the 330 union workers at the plant went out on strike that day. Midland
never closed down. It had continued to bring new workers into the plant
after the March 1 contract expiration, and when the union finally went
out on strike in June, the company "had a workforce ready to go," says
McGee. Within two hours of the strike, the company had obtained a temporary
restraining order limiting the number of pickets the union could post outside
the plant to two, prohibiting picketing strikers from standing still or
talking to their replacements and prohibiting groups of union members from
gathering within 500 feet of the plant. According to McGee, the company
asked the judge who issued the order to shut down the union hall, which
falls within the 500-foot radius. The judge declined, but ordered the union
hall windows facing the plant welded shut. McGee says the company had substantial
economic incentives to force the strike. Midland pays its new workers $4
an hour less than its unionized employees received and does not provide
them with benefits such as health insurance. Equally important, it discarded
an older workforce. The new, younger workers do not have built-up vacation
time or a vested right to the company pension. Still, the company's maneuver
may ultimately backfire. It lost two of its three major customers, Ford
and Navastar (formerly International Harvester), retaining only General
Motors. A year and a half after the strike began, the workforce has shrunk
to approximately 80. The company's demise is little consolation to its
former employees, who have little chance of regaining their jobs. Their
only hope is a favorable ruling from the pro-employer National Labor Relations
Board on one of the several unfair labor practices suits launched by the
UAW. For now, says McGee, the striking workers, especially the older ones,
are "stuck in limbo." They can't find new jobs and they are not eligible
for their company pensions until they reach age 65. Several hundred miles
south, workers at the Ravenswood Aluminum Company (RAC) in Ravenswood,
West Virginia have had a similar experience. RAC bought the Ravenswood
facility from the Kaiser Aluminum and Chemical Company in 1989 and immediately
adopted an antagonistic stance towards the workers and their union, Local
5668 of the United Steelworkers of America (USWA). Approaching a November
1, 1990 contract expiration, RAC refused to bargain seriously, making its
first full contract proposal only seven days before the contract expired.
The USWA rejected RAC's offer and its two subsequent ones, offering to
continue to work under the old contract. The company refused the union's
offer and told workers coming to 11 and 12 p.m. shifts on October 31 to
go home. Dan Stidham, president of Local 5668, says RAC "intended [to initiate]
a lockout from the beginning." It never bargained in good faith, he says,
and quickly brought "busloads of scabs into the plant." The company also
installed an elaborate security system at the plant. In spring 1990, it
cleared shrubbery from the plant's property and installed security cameras.
In the fall, it placed a 10-foot barbed-wire fence around the plant and
tripled its security forces. RAC is currently operating the plant with
more than 900 replacement workers and salaried personnel. Stidham says
strikers have been subjected to harassment from RAC's security forces.
RAC and the USWA have held several rounds of negotiations under federal
mediation since the lockout, but their positions appear irreconcilable.
RAC has announced that it considers its replacement workers permanent,
and that strikers will only be taken back to fill jobs that remain open.
Stidham says there is "no way [strikers] will ever go back" and work with
replacement workers. Moreover, RAC is demanding an unlimited right to contract
out work and the right to restructure the plant to eliminate jobs. The
union estimates that each of these demands will cost hundreds of jobs;
combined with the company's commitment to the replacement workers, few
jobs would remain for the strikers. "If the company can drive the [unionized]
workers out of there, cut personnel and have people run from one job to
another, cut benefits drastically ... [and pay] the replacement workers
$5 or $6 an hour," it will clearly save a lot of money, says Stidham, though
there are questions about whether RAC can produce a sufficiently high-quality
product to retain its customers. The replacement workers will certainly
suffer at RAC's hands. Stidham says the replacement workers' wages have
already been cut two or three times from their starting rate. They also
face significant safety threats; four union workers died in the plant in
the year after RAC took it over. Only two had died in the previous 18 years.
The new and untrained replacement workers stand to have an even higher
casualty rate. But the biggest losers, of course, are the locked out workers.
"If justice is ever done, it should be done in this case," says Stidham.
But the USWA now must rely on the National Labor Relations Board to rule
that RAC locked the unionized workers out and engaged in unfair labor practices.
The evidence in the union's favor is strong, but the Board's hostility
to workers is very likely stronger. The situations at Midland Steel and
RAC are not exceptional. They exemplify the state of U.S. labor-management
relations in the Reagan-Bush era. ------------------------------------------------------------------------------
[] MULTINATIONAL MONITOR VOLUME 12, NUMBER 4, APRIL 1991 LABOR'S CHALLENGE
2 Percent Justice for Workers FROM 1982 TO 1990, the National Labor Relations
Board (NLRB) ruled that unfair labor practices took place in only 2 percent
of the cases brought before it involving the largest 50 U.S. corporations,
according to documents obtained by Multinational Monitor. The NLRB is the
agency charged with investigating and prosecuting unfair labor practices
arising from union disputes and elections. The vast majority of unfair
labor practice charges involve claims of illegal firings due to union activity.
Multinational Monitor obtained the records in response to a Freedom of
Information Act request. They contain all charges of unfair labor practices
against the top 50 Fortune 500 companies from 1982 to September 1990. More
than 4,000 charges of unfair labor practices were filed against these 50
companies in the 8- year period. The NLRB found that an unfair labor practice
occurred in only 80 cases. In these "formal settlements," the accused company
usually admits to a violation of the law and agrees to provide some sort
of compensation to the petitioning worker, such as back pay. Most charges
filed with the Board are never even investigated. Of the approximately
4,000 cases released to the Monitor, 1,497, or 37 percent, were dismissed
without investigation by regional directors. An additional 1,027, or 25
percent, were withdrawn. Petitioners usually withdraw cases because they
have been advised by the Board that no complaint will be issued. A complaint
is issued when a regional director decides there is sufficient evidence
to investigate a case. If the regional director refuses to issue a complaint,
parties can appeal to the NLRB's general counsel, though almost all appeals
have been denied in the last decade. The counsel's decision is final. In
addition to the 80 cases where the NLRB ruled in favor of workers, 874
of the cases examined by Multinational Monitor reached some sort of settlement.
The petitioner and the charged company arrived at an independent settlement
in 718 of the cases (75 percent of the settled cases). "Informal settlements,"
which are approved by the regional director but do not involve an admission
of guilt by the company charged, accounted for 156 of the cases. The NLRB
took further action on an additional 519 cases which are still pending
either because of appeals or heavy case loads. Some cases have been pending
for as long as three years. Labor commentators say that drawn-out unfair-firing
cases deter workers from organizing as much as the actual firings of union
supporters. Greg LeRoy, research director of the Midwest Center for Labor
Studies, says, "it is cost-effective [for companies] to fire people today
and maybe have to pay them tomorrow." Unfairly fired workers are not entitled
to pay or benefits until the Board decides in their favor. Union representatives
say the Board no longer fulfils its intended function: to guarantee and
enforce the rights of workers to organize and maintain unions. The NLRB
was established by the Wagner Act (National Labor Relations Act) of 1935,
which guarantees workers the right to form unions and bargain collectively
and bans unfair labor practices such as the formation of "company unions"
and discrimination in hiring and firing due to union affiliation. The Wagner
Act established the National Labor Relations Board as an agency with jurisdiction
over labor disputes and violations of the Act. The Board is also charged
with running elections for union certification. The documents obtained
by Multinational Monitor lend support to unions' claims that they can no
longer depend on the NLRB to enforce the laws protecting union supporters.
Candace Johnson, a spokesperson for the AFL-CIO, says the NLRB's refusal
to enforce labor laws has made the firing of union supporters "a fact of
life," even though such action is strictly illegal. LeRoy characterizes
the NLRB as "increasingly irrelevant because [it] has become so corrupted."
Johnson attributes the NLRB's inaction to Board members appointed by the
Reagan and Bush administrations. (The NLRB is run by five presidentially
appointed Board members and a general counsel. The general counsel appoints
directors for the Board's 39 regional offices, which handle the majority
of the cases.) "Starting with Donald Dodson [the first Reagan appointee],
we have had a pro-employer Board," Johnson asserts. NLRB spokespeople refused
to comment on this charge. The co-optation of the NLRB has significantly
affected unions' ability to organize and wage effective actions, according
to union officials. Union organizers believe employers' ability to defy
U.S. labor law with impunity has contributed to the tremendous decrease
in union representation. They say they can no longer rely on interested
workers openly attempting to convince their co-workers that they need a
union because of the likelihood that these workers will be fired. -Jim
Sugarman ------------------------------------------------------------------------------
[] MULTINATIONAL MONITOR VOLUME 12, NUMBER 4, APRIL 1991 Replacing the
right to strike The use of permanent replacement workers--commonly known
as "scabs"--has skyrocketed in the United States since 1980. In most of
the defining strikes of the last decade--the air traffic controllers, Phelps
Dodge, Magic Chef, TWA, International Paper, Eastern, Greyhound, the Daily
News--management brought in permanent replacement workers when workers
went out on strike. A January 1991 General Accounting Office (GAO) study
determined that employers hired permanent replacement workers in 17 percent
of strikes in 1985 and 1989. Corporations and business associations, attempting
to forestall legislation banning the use of permanent replacement workers,
argue that their use has remained consistent over the last 50 years. Peter
Eide, manager of labor law at the Chamber of Commerce, argues that the
"threat to use permanent replacements was common prior to 1980" and that
the general perception that their use has increased is a "labor-created,
media-created" fiction. The GAO study, however, found that "about 45 percent
of the employers and about 77 percent of the union representatives involved
in strikes ... in 1985 and 1989 believe permanent strike replacements were
hired in proportionately fewer strikes in the late 1970s than in the late
1980s." Most commentators trace the rise in permanent replacement workers
to the 1981 PATCO strike, when then-President Ronald Reagan fired striking
air traffic controllers and brought in permanent replacements. Labor commentators
argue Reagan's action sent a message to U.S. employers that the ground
rules of labor- management conflict had changed, and that more aggressive
and ruthless behavior was acceptable. The consequence of the shift in employer
attitudes and strategies has been profound. "By basically pressuring groups
to go out on strike by remaining totally rigid [in negotiations]," charges
Cindy Yeast, spokesperson for the Association of Flight Attendants, companies
can "get rid of an older, more senior workforce" and replace it with a
younger, non-unionized and less expensive one. Yeast's assertion is echoed
by labor leaders across the country, including union representatives of
the workers at Midland Steel, Ravenswood, Eastern and the Daily News. More
significant than the number of cases in which corporations actually hire
permanent replacements is the extent to which they threaten to do so. The
GAO study estimated that companies involved in strikes announced they would
hire permanent replacements in about 31 percent of 1985 strikes and 35
percent of 1989 strikes. Labor leaders say the numbers are even higher.
Warren Davis, regional director of the Northeast Ohio region of the UAW,
says locals in his region are "threatened with scabs" in about 60 percent
of their contract negotiations. Lynn Williams, president of the USWA, told
a March 12 hearing of the Senate Subcommittee on Labor that "in a recent
informal survey of Steelworker-represented locations where strikes have
occurred in the last decade, three-fourths of the respondents reported
the use of permanent replacements." The effect of these threats is to undercut
labor's bargaining power by drastically curtailing its ability to make
use of its most potent weapon, the strike. Yeast says that when negotiations
"start to get down to the wire" and the flight attendants tell airlines
they maybe forced to go out on strike, the employers' respond: "'Fine.
Go out. We'll replace you."' This sort of employer intransigence, she says,
"cripples our ability to come to a deal." Even when the threat is not overt,
workers' knowledge that employers are willing to use permanent replacements
severely cuts into their negotiating strength. Williams told the Senate
Subcommittee: "Increasingly, we have had to advise our members that they
dare not strike because of the risk of permanent replacement. And, what
is crucial is this: the employers knew as well as we that we were left
without any meaningful strike weapon, and therefore felt no compulsion
to negotiate seriously toward a mutually acceptable agreement. In this
way, the use of permanent replacements by only a few employers has been
sufficient to alter the balance of collective bargaining with many others."
Companies' legal license The right of employers to use permanent replacement
workers in instances where their workforce strikes for economic reasons
was established by the Supreme Court's 1938 decision in Labor Board v.
Mackay Radio Co. Companies are not allowed to hire permanent replacement
workers in lockouts or strikes over unfair labor practices. The "Mackay
doctrine" coexists uneasily with the National Labor Relations Act of the
1935, which guarantees workers the right to strike without fear of being
fired. Section 7 of the Act says, "Employees shall have the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection." Section 8 states that "it shall be an unfair labor practice
for an employer to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in [section 7]." Unions and labor law
experts argue that the right of employers to use permanent replacement
workers overturns the right of workers to strike without fear of being
fired. Paul Weiler, a professor at Harvard Law School, told the Senate
subcommittee that "for the last several decades, labor law classes around
this country have annually broken out in laughter at the thought that lawyers
and judges would draw such a spurious distinction between discharging workers
and permanently replacing an employee in his job." But the Supreme Court
has upheld the Mackay doctrine, writing in a 1985 decision concerning TWA's
use of permanent replacement workers that workers' right to strike amounted
to a "gamble" with their jobs. The unions' response Confronted with the
Supreme Court's affirmation of employers' right to use permanent replacements
and corporations' increasing willingness to exercise that right, the labor
movement has turned to Congress for a legislative remedy. Senator Howard
Metzenbaum, DOH, and Representative William Clay, D-MO, introduced legislation
in 1990 which would have banned the use of permanent strike replacements
and have reintroduced their bills in 1991. The legislation would permit
companies to hire temporary replacements during strikes. Metzenbaum has
been particularly forceful in pushing the legislation. In his statement
opening a March 12, 1991 hearing before the Senate Subcommittee on Labor,
he said, "We are here today because the scourge of permanent replacements
threatens our very system of collective bargaining. The right to strike
has been reduced to the right to quit." Metzenbaum called employers like
Frank Lorenzo of Eastern Airlines, the Greyhound Bus Company and the New
York Daily News "scofflaws [who] have become role models for far too many
American businesses." Noting that the March 12 hearing was the fifth on
the topic of permanent replacements in less than 10 months, he said "It
is now time for Congress to act." Passage of the bill is "a top priority
of every labor union," according to Ernie Dubester, legislative counsel
of the AFL-CIO. Congressional failure to enact the striker replacement
legislation, says George O'Bea, vice president of the United Paperworkers
International Union, "will kill collective bargaining." In addition to
lobbying, the labor movement hopes to express its concern with the bill
at an August 31 Solidarity Day rally in Washington, D.C., where it hopes
to mobilize tens of thousands of workers, primarily to demonstrate support
for the striker replacement legislation. Labor faces significant obstacles
in achieving passage of the bill, however. Secretary of Labor Lynn Martin,
testifying before the House Labor-Management Subcommittee on March 6, said
that the Bush administration opposes the Metzenbaum-Clay legislation. "If
the bill were presented to the president," she said, "his senior advisers
would recommend a veto." Given the active lobbying of business groups to
prevent Congress from even passing the bill, labor will have a hard time
mustering the two-thirds majority it would need in both the House and Senate
to override a veto. Led by the Chamber of Commerce, business has formed
an "Alliance to Keep America Working" to oppose the striker replacement
legislation. It includes the National Association of Manufacturers, the
Associated General Contractors of America, Associated Builders and Contractors,
the National Federation of Independent Business, General Dynamics, International
Paper, 3M, USX and dozens of other companies. Business lobbyists describe
the effects of passage of the bill in apocalyptic terms. "Were the bill
to become law," says the Chamber of Commerce's Eide, "it would completely
upset the economic balance in collective bargaining situations, giving
unions all power.... Employers would have to agree to what unions wanted
or shut down." The business community argues that the fact that the bill
would allow employers to use temporary replacements during a strike is
irrelevant, a claim hotly disputed by labor. "It is virtually impossible
to hire temporary replacements for anything above the most unskilled job,"
Eide says. But labor representatives dismiss this claim as groundless.
At the March 6 House hearing, Owen Bieber, president of the UAW, cited
evidence that roughly 25 percent of the total civilian workforce is made
up of temporary workers and stated that "with one in four workers already
employed on a less than permanent basis, the claim that employers will
not be able to hire temporaries is specious." Weiler told the Senate Subcommittee
on Labor that "the available evidence is all to the contrary" of the business
claim. He pointed out that many U.S. businesses choose to use temporary
rather than permanent replacements during strikes, and have no difficulty
attracting them. He also noted that Canada has banned the use of permanent
strike replacements for the last two years, without causing any difficulty
for employers who want to operate during a strike with temporary replacements.
The limits of legislative reform In responding to business arguments about
the potential effect of passage of the striker replacement bill, labor
leaders have argued that even though the bill is critical to re-establishing
the right to strike, it will not give unions the power to dictate contract
terms to corporations. For example, in his testimony to the House Subcommittee,
Lane Kirkland, president of the AFL-CIO, stated that the bill "does not
come close to creating an imbalance in favor of working people. The reason
for this is simple: all of the evidence demonstrates that employers have
always had effective options in response to a strike other than the hiring
of permanent replacements." Unfortunately for U.S. workers, Kirkland was
not arguing just for the sake of expediency. Employers have alternative
ways to respond to strikes; they can use temporary replacements or wait
out workers who themselves suffer tremendous economic hardship from work
stoppages. Moreover, as employers became more aggressive in the last decade,
their bargaining power was heightened by a number of factors. With ever-greater
frequency, they employ union-busting consultants and "security firms" to
intimidate workers [see "Confessions of a Union Buster" sidebar - omitted
here]. When they have legal conflicts with workers, they know they can
rely on a pro-employer National Labor Relations Board to adjudicate their
case [see "Two Percent Justice for Workers" sidebar]. And they can threaten--and
carry out the threat-to close factories in the United States and open up
new ones in low-wage countries abroad. Responding to all of these problems
will require labor to dramatically increase its political power, primarily
by reversing the trend of declining membership in unions and by organizing
new workers. But there are steps unions can take in the short term to respond
to the new bargaining climate. Strikes can only be used in limited situations
where employees have significant leverage over their employer; unions must
experiment with other protest tools. Davis of the UAW says he encourages
workers in his region to "resort to in-plant strategies to try to keep
from striking or to use them first to weaken companies before a strike."
These include tactics like work-to-rule, where workers do exactly what
their job description requires, but no more. Passage of striker replacement
legislation is of extreme importance to labor, but labor should also search
for creative alternatives to it. Unions and their allies in Congress will
have a hard time assembling the two-thirds majority they will need to override
a Bush veto of the striker replacement bill, and carrying out successful
strikes will be difficult even with passage of the bill. At a time when
labor's strength is declining, there is a grave danger in relying only
on legislative avenues to remedy inequities in the relationship between
workers and corporations.