The Heritage Foundation

Executive Memorandum #298 on Jobs, Jobs and Labor Policy

March 12, 1991

March 12, 1991 | Executive Memorandum on Jobs, Jobs and Labor Policy

How the Anti-Striker Replacement Bill Would Hurt American Workers

Under pressure from the leaders of organized labor, Congress is considering legislation that purports to help American workers. In fact, however, it will increase the power of union chiefs while harming rank and file workers and hindering future job creation. The "Anti-Striker Replacement Act" or "Strike Bill" (H.R. 5 and S. 55), introduced in the House by Representative William Clay, the Missouri Democrat, and in the Senate by Howard Metzenbaum, the Ohio Democrat, would guarantee workers that they cannot lose their jobs during a strike and, in effect, would prohibit employers from hiring permanent replacement workers during a strike.

This bill would increase greatly the incentive for unions to strike rather than negotiate and hence would make strikes -- now at their lowest level since 1935 -- much more common. The result: American output and production would be interrupted just when the economy has been weakened by recession. Employers would find it difficult to obtain replacement workers during a strike. And by shifting the balance decisively in favor of unions, the legislation would slow new job creation.

Balanced Current Law. Current law seeks to achieve a balance between the interests of labor and management during labor negotiations, without favoring one side over the other. Workers are free to strike to obtain higher wages or better working conditions. Employers are free to hire replacement workers and to continue operations during a strike. Sometimes employers use temporary replacements. But if skilled and experienced replacements are not available locally, an employer may recruit workers from other parts of the country. Such workers understandably are reluctant to move for a job that may only last for a few days or weeks. Employers therefore sometimes agree to hire the replacements on a permanent basis, so that the replacement workers know they will retain their jobs after a strike ends. Current law also requires employers, however, to give returning strikers a preference for filling vacancies as positions become available. But employers are not required to discharge replacement workers to give strikers back their old jobs. The Clay- Metzenbaum Strike Bill would guarantee striking workers their old jobs.

The Strike Bill thus would encourage workers to strike by taking considerable risk out of striking. Workers would lose pay during the strike, but would not risk losing their jobs. The inevitable result would be more strikes, an outcome directly at odds with the current law's emphasis on encouraging negotiations and conciliation. Moreover, by prohibiting employers from offering permanent positions to replacement workers, the bill would make it difficult if not impossible for many employers to keep their businesses operating during a strike. These employers then would be at the mercy of unions and in many instances would be forced to concede to whatever the strikers demand, no matter how unreasonable. The delicate balance of federal labor law thus would tip decisively toward labor and against management.

Hurting American Competitiveness. If the Strike Bill becomes law, employing workers in America will be riskier and more expensive for employers. This in turn will discourage companies from building new plants. And many operations no doubt would move to countries with more reasonable labor laws. This will mean fewer job opportunities available to Americans.

The Strike Bill is worded broadly, and would establish an absolute right to job reinstatement. Thus it would appear to guarantee an employee's right to reinstatement even when a strike was illegal, or when it violated a "no strike" clause in the employee's contract. Even if a strike is particularly violent, and some workers are found guilty of assault or destruction of property, the employer who is the victim of such crimes could be required to reinstate the workers involved.

The bill applies to non-union as well as union shops. Indeed, if any two or more workers walk off a job to protest the terms or conditions of employment, they would count as strikers and be entitled to reinstatement in their former positions whenever they decided to return to work. It would not matter how long they were "on strike" or how unreasonable their protest might be. In those European countries with similar laws, strikes over trivial matters are common. Not surprisingly, the number of days lost through strikes is very high in such countries. In Italy, for example, over 1,400 work days are lost per year per 1,000 workers, compared to fewer than 100 in the U.S.

The Strike Bill would penalize workers who continue working during a strike, by prohibiting employers from promoting these workers to positions left vacant by strikers or from counting time worked during a strike toward their seniority. Unions, however, still would be allowed to fine members who refused to participate in a strike. Moreover, current laws exempt unions from anti-violence and anti- extortion statutes, so they have more license to engage in criminal acts against those workers who do not join a strike. Thus workers would have little to gain and much to lose by continuing to work during a strike.

Protecting Big Labor's Power. The purpose of the Strike Bill appears to be to protect and enhance the power of labor union leaders at the expense of businesses, non-union employees, and even union members who oppose particular strikes. Union workers currently account for only 12 percent of America's work force. Metzenbaum revealed the true purpose of his bill when he last year told an American Federation of Labor-Congress of Industrial Organization (AFL-CIO) legislative conference: "If we don't pass this bill, the labor movement will shrink, and shrink, and shrink, and you won't be the formidable force that you have been."

This is hardly a legitimate reason for a new U.S. labor law that would tip the scales decisively in favor of union leaders. A balance in the law governing industrial disputes, with the government siding with neither employers, unions, nor non-union workers is the best way to guarantee American competitiveness, new job opportunities, and equality before the law. The Strike Bill would undermine this balance, and with it American prosperity.

William G. Laffer, III, McKenna Fellow in Regulatory and Business Affairs.

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