While most of the attention this election cycle is focused on the race for President the actual contestants are only part of the equation. The people they appoint and the governing philosophy they represent are important considerations. A President’s appointments to the National Labor Relations Board are an example of the difference between the Democratic and Republican parties.
Employers hiring Permanent Replacements to do the work of regular employees participating in a strike was a rare event at one time. But things changed during and shortly after the presidency of Ronald Reagan. From his destruction of the air traffic controllers union (PATCO) to a series of rulings by his appointed labor board he led the charge against unions and exacerbated the inequality that has exploded throughout the American economy and become a major issue in this years campaigns.
The New York Times examines this shift in power from workers to management in this 1990 article Replacement Workers – Management’s Big Gun…
‘The Balance Has Shifted’
Labor experts maintain that management’s wide use of permanent replacements has upset the symmetry that has been a tradition of labor disputes. On the one hand, management has said it has a right to lock workers out at the risk of losing profits; on the other, labor has said it can withhold its services at the risk of losing income.
”The balance has shifted,” said Mark A. de Bernardo, director of the Labor Law Action Center at the United States Chamber of Commerce here. ”Labor’s trump card in a dispute, the strike, is no longer trump.”
Robert M. Baptiste, a Washington attorney for labor unions, said that in a strike ”there was always a sense that people would eventually say, ‘Enough, let’s sit down and get serious.’ ” But he added, ”Now, companies just want to get rid of unions.”
One reason that companies now think that goal is possible is the lesson they drew from the illegal strike of 11,500 Federal air traffic controllers in August 1981, seven months into Ronald Reagan’s first term as President. After the controllers defied a back-to-work order, Mr. Reagan dismissed them, filled their ranks with permanent replacements, and the union collapsed.
‘A Signal to Other Employers’
The Government’s success in keeping the air traffic system working impressed many unionized companies.”Reagan made it respectable to bust unions,” Mr. Baptiste said.
Gary Burtless, a labor economist at the Brookings Institution, said Mr. Reagan emboldened management to risk the strain to its business of taking on less experienced workers. ”The fact that the President was able to keep the air traffic system going indicated that there was a lot more scope for replacing workers than people imagined,” Mr. Burtless said. ”If you can replace air traffic controllers you can certainly replace bus drivers.”
The permanent replacements, often recruited from the ranks of the unemployed or from low-paid employees of other businesses, are a variation on the temporary substitutes vilified by trade unionists as ”scabs” or ”strikebreakers” but nevertheless regarded as a part of management’s legitimate arsenal. Temporary replacements leave at the end of a strike, but permanent replacements are assured the strikers’ jobs. After a strike, the law allows strikers first claim on their old jobs, but only if replacements vacate them.
So if this shift during the Republican administration of Ronald Reagan benefited management has a Democratic administration done anything to shift power back to workers?
Yes. Labor Notes explains the decision by the President Obama appointed NLRB issued earlier this month in Permanent Replacements? Not So Fast, Labor Board Says.
A game-changing interpretation from the Obama-appointed National Labor Relations Board has narrowed the allowable reasons why an employer may hire permanent replacements during a strike.
Last week’s ruling reinterprets the 1938 Supreme Court decision Mackay Radio & Telegraph, widely reviled by labor. That case affirmed employers’ right to hire permanent replacements.
Employers frequently use Mackay to defeat strikes. Some unions don’t even consider hitting the bricks because they’re afraid that workers’ jobs will be taken away.
Despite fierce criticism, Mackay’s legal edifice survived intact for almost 80 years. The only way unions have found to avoid it is to contort walkouts to qualify as unfair labor practice strikes (to which Mackay does not apply). But the NLRB often denies ULP status, and unions must often wait years for a ruling.
The Labor Board announced its new standard in a case involving SEIU/United Health Care Workers West American and Baptist Homes of the West, doing business as the Piedmont Gardens Nursing Home.
Building on a relatively timid 1964 decision, the Board ruled forcefully that an employer may not hire permanent replacements if one or more of its reasons conflicts or interferes with workers’ rights under the National Labor Relations Act (NLRA).
The evidence in Piedmont Gardens was clear-cut. The nursing home’s executive director admitted she had acted on a belief that permanent replacement workers “would come to work if there was another work stoppage.” The company lawyer told the union lawyer that the employer “wanted to teach the strikers and the union a lesson.”
Under the Board’s new standard, these motives—forestalling future walkouts and punishing strikers—made the replacements illegal. That’s because the NLRA bans retaliating against employees for exercising their right to collective action. The nursing home was ordered to reinstate the displaced strikers and make up their lost earnings.
Thank You President Obama for appointing folks that will side with workers. Come November, this is just one more factor to consider when casting your ballot for President. Vote as if your job depends on it!