Module 9: Professor’s Overview
Per the syllabus, your readings for this week are Rainsberger XXIV, XXV, and XXVI, as well as Understanding Labor Law chapters 9 and 10. For this module, we consider the law’s regulation of strikes by employees and lockouts by employers. Strikes are much more frequent than lockouts (a “lockout” is simply an employer not allowing employees to work, either by shutting down temporarily or temporarily replacing them with other workers, as a means of putting economic pressure on them to accept the employer’s negotiating terms).
Looking at governmental regulation of strikes, one generalization that can be made is that the government tends to either curtail or outright make illegal the most effective forms of strikes. Throughout history, whenever the labor movement has discovered successful methods of pressuring employers through strikes and related activities, the government has over time made them illegal or unprotected. Almost invariably, the reasoning has been that the most powerful forms of concerted activity or strikes are violations of the property rights of owners.
Surprise, intermittent, or “quickie” strikes are not protected activity, even though strikes in general are protected. Sit-down strikes, which tend to be very effective, are illegal. Almost any form of classwide solidarity of workers is unprotected (meaning one can be fired for engaging in it) and often is illegal. If a group of workers (or a union) refuses to handle the goods of another company whose workers are on strike (so-called “hot cargo” refusals), this is illegal, and the NLRB is required by law to get a prompt court injunction to end it. Strikes against “secondary targets” like other employers who are suppliers or customers of a struck company are not protected. Likewise, slowdowns or partial strikes are unprotected. General strikes, political strikes for working class objectives, and the like are unprotected and often illegal.
In other words, the law restricts workers to very narrow forms of solidarity with each other, primarily to strikes within one company to achieve one collective bargaining agreement. Using strikes as economic pressure to raise the living standards of working people as a whole, or even of workers beyond the confines of one employer, is generally forbidden or unprotected. This is significant, because by far the main source of power workers have is standing in solidarity with each other – they never have the monetary resources to compete with large sums of capital, particularly when that capital is organized in a corporate form (the corporation). Restraining solidarity means diminishing the power of workers; a modern form of the 19th Century role of the courts to weaken the power of workers.
The readings are relatively straightforward. As you read them, be certain that you have grasped the following points:
(1) The absolutely critical distinction between an “economic strike” and the “unfair labor practice strike,” and what a difference it makes for the rights of a worker depending on whether she or he is engaged in one or the other.
(2) The distinction between a “primary” strike (against the original employer) and a “secondary” strike (against a supplier, customer, creditor, etc. that has a relationship with the original employer).
(3) What is an employer “lockout,” and know the two types: offensive, and defensive.
(4) Different rules regarding safety strikes over unsafe working conditions.
(5) Difference between a “temporary replacement” and a “permanent replacement,” concerning both their rights and the rights of strikers at the end of a strike.
(6) Sympathy strikes: how the rights of sympathy strikers depend on those of the original strikers with whom they are in sympathy.
(7) The variety of things that could make a strike unprotected or illegal (either the goal or the tactics are illegal, such as strikes against a “neutral” employer, quickie strikes, sit-downs, slowdowns, intermittent strikes, partial strikes, “wildcat” strikes in violation of a no-strike contract clause; [usually] strikes for union recognition; etc.)
(8) The swiftness, severe nature of, and variety of penalties for illegal union strikes (injunctions, law suits and monetary damages, criminal sanctions, ULPs, and disciplinary action) compared to relatively toothless penalties for most employer infractions. (Especially note the required use of swift injunctions here in many cases, in contrast to most other infractions under the law.)
(9) The general protection of third party “neutral” employers from strikes and boycotts (prohibition of secondary strikes and the like), unless those employers intentionally “ally” themselves with the primary employer.
(10) Waiver of the right to strike through “no strike clauses” in a union contract, and related issues concerning a contract “reopener” in the middle of that contract (union still can strike over the reopened issue, if it chooses).
(11) Prohibition on employer retaliation, discrimination and the like against strikers; and related prohibition on inducements to end a strike.
(12) Types of picketline behavior that are illegal (intimidation, physical violence, some types of verbal statements.
Those are the main issues to absorb from the reading, which I think is quite clear in its own right.
To complete this module, in addition to contributing to the discussion, you are to answer the following question in an essay of 2-5 pages, which you turn in through the Turnitin.com link. Here is the question:
QUESTION:
The topics covered in Modules 7, 8, and 9 illustrate the attempt by the NLRB and the U.S. legal system to “balance” workers’ collective rights to unionization and collective bargaining with employers’ private property rights to run their businesses. Pro-union critics claim the law is badly skewed toward employers and private property rights, while anti-union critics claim that the law is biased toward unions and thus ties an employer’s hands in running his own business.
What do you think of this argument? Who is more right, and why? Give solid reasoning for whatever position you take.
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