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Strikes – Another Slash in Death by a Thousand Cuts 8/15/2016
The Newest Attack from the NLRB’s Campaign against Management
By: Ricardo Torres

Labor and management have consistently struggled to overturn the balance of power between them. Throughout every industry, since guilds first formed to benefit artisans through to today's bloated and top-heavy labor unions, both sides have circled each other, probing the other's weaknesses in order to prepare to either implement or fight work stoppages (strikes).

Strikes are Dangerous

It is safe to say that striking against an employer and refusing to work is, by far, the most powerful action that a union can take against a company and its management. During my time as a National Strike Director, and while working with the AFL/CIO to track labor disruptions and social movements around the globe, we always knew that a strike is the ultimate tool in a union's toolbox. It was part of my responsibility at the time to help fine-tune effective strategies to suppress a company's ability to operate in the United States during a work stoppage.

Take, for instance, the national strikes in France. I observed how unions successfully shut down Paris itself twice and how they leveraged this power to force concessions. French unions went on strike again this year, this time to protest labor law changes proposed by the government. These strikes were violent and succeeded in effective shutting down much of the country's commerce.

Unions' successes in France, year after year, are even more surprising when you take into account the fact that the French trade movement is one of the weakest in Europe, with only 8% of employees belonging to unions.

The French labor movement is divided into a number of rival confederations (confederations of workplace unions, grouped into industrial federations) that all compete for membership. The primary federations in France are the CGT (Confédération générale du travail), CFDT (Confédération française démocratique du travail), FO (Force Ouvrière), CFTC (Confédération Française des Travailleurs Chrétiens), and CFE-CGC (Confédération française de l'encadrement – confédération générale des cadres). Despite low membership and apparent division with the French trade unions, they have strong support in elections for employee representatives and are able to mobilize French workers to great effect. This reaffirms the fact that intelligent war-like tactics, strategic targets and a strong social media presence can overcome inferior participant numbers.

Suppressing a company's ability to operate on either a local or national level requires a coalition of many support organizations working together to produce the desired result (e.g. OUR Walmart, Fight for $15, Janitors for Justice, as well as the South American campaign against the Coca Cola company in which labor continues to this day to hold Coca Cola responsible for the death of union organizers in Colombia and other countries). Despite the apparent overall failures of the various Occupy movements, they were actually very successful operations for organized labor. They, along with other "stealth" union organizations (OUR Walmart is actually the UFCW and Fight for $15 is sponsored by the SEIU.), have introduced Millennials to unions and brought back something the U.S. labor movement gave up long ago: mass protests, prolonged take-over and shut-down of targets, direct confrontation against authority and strong acts of civil disobedience. In fact, labor's strategy is to involve itself into most social movements, some in support of a cause, others in opposition, but ultimately (and amorally), labor's only interest is in propping up and inflaming the passions of their targeted demographic in order to overcome reason.

U.S. Companies Have Been Shielded from the Worst Dangers of Strikes

For the last nearly 80 years, U.S. companies have been protected from strikes' worst case scenario by Board precedent that allows them to permanently replace striking workers "at will" and "with impunity". These precedents were set in NLRB vs. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938) and Hot Shoppes, Inc. 146 NLRB 802 (1964). While companies cannot fire strikers for otherwise legal activity, they have had the right to operate their businesses as they see fit. Within these boundaries, management has held the right in the U.S. to replace economic strikers in order to keep their operations running.

The phrase "Permanently Replace" is a misnomer. There is a defined path through which replaced strikers can return to their previous employment, but employers who find themselves under attack from a strike are allowed to procure the quality workers required to fulfill duties abandoned during a strike situation. This arrangement has been and remains critical to the survival of many companies during a labor strike because most experienced, quality workers would otherwise not join a company on strike as they would have no job security when the striking workers return to their jobs tomorrow, next week or next month, if ever.

This ability to quickly find and hire quality employees to replace economic strikers is especially important in industries like Tier 1 Automotive suppliers and any others that operate in "just-in-time" delivery environments. Not having this ability would prove disastrous for many companies.

As stated in Labor Notes' (a pro-union "media and organizing project") Troublemaker's Handbook 2 (Yes, this actually exists!), "some strikes are lost when a union simply hits the bricks, without taking the measure of the opponent and what it will take to win…" This is why smarter unions are now experimenting with limited-duration walkouts, combined with inside campaigns, to reduce the risk and cost of protracted shut-downs. Working to rule (performing at the bare minimum), working without a contract, and "striking while on the job" before walking off the job are all good methods of "testing the waters" and "looking before you leap", while gradually ratcheting up the pressure against employers.

While a union official and developing strike strategies, I wrote and pushed for many strategies that utilize smarter methods of applying pressure to management without resorting to a strike, including "inside campaigns", because forcing a company to lock you out was smarter that walking out on strike. It is far easier to generate public sympathy for the workers involved and definitely places them in a stronger legal position under state and federal law than if they strike. An employer is almost always unwilling to pay workers for conducting an inside campaign or inside strike after the contract has expired.

No matter what reason the employer provides for initiating a lockout, the act itself places responsibility for the dispute squarely on management's shoulders. Employers may have to pay for unemployment benefits for locked out workers, they cannot hire permanent replacements, and may incur an NLRB back-pay order. Locked out workers qualify for unemployment benefits in 34 states; however, only one state (New York) provides for unemployment benefits to strikers. Obviously, one of these scenarios is vastly preferred by the unions, but it can be terribly difficult to force a company to lock out its workers and could potentially result in unfair labor practices against the unions.

Thanks to the NLRB, Strikes could again Destroy U.S. Companies

On May 31, 2016, the NLRB opened the door to eliminating this long-standing protection that reduces a strike from a company-killer to a legitimate negotiating tool. The case in question involves the American Baptist Homes of the West and dates from 2010.

The company, d.b.a. Piedmont Gardens, is a continuous care facility in Oakland, CA at which around 100 nonprofessional healthcare employees have been represented by Service Employees International Union, United Healthcare Workers-West since 2007. The contract expired at the end of April, 2010. Following informational picketing, the employees authorized the bargaining committee to call in strike in mid-June, 2010.

The union gave the company two letters in early July, 2010. The first letter notified the company that the employees would begin striking on Monday, August 2, 2010. The second letter indicated that all of the striking employees wanted to "unconditionally offer to return to work at or after 5:00 a.m. on Saturday, August 7, 2010." In other words, the union wanted to strike for only five days, with the intent to cause a costly panic to teach the company a lesson and offer their members a "return to work" victory. This tactic of short strikes is one that the SEIU regularly uses at hospitals and healthcare facilities to maximum the employer's costs.

When a union such as the SEIU performs multiple short strikes, they have to be careful how they frame them. A campaign of intermittent, general-grievance strikes is not allowed by labor law; however, they can strike over specific issues. This strategy is designed to inflict the most damage to a company while simultaneously limiting the dangers to strikers that a prolonged strike would create.

The Board's decision in the Piedmont Gardens case opens the door to question the employer's intent in hiring permanent replacement workers in every new strike situation. Unlike before, when an employer's motivations in retaining replacement workers has been immaterial, now every permanent replacement worker could be a potential unfair labor practice. Obviously, no company wants to go through another strike, but now that reasoning alone could be considered a violation of labor law if provided as the motivation to hire permanent replacements. As such, expect to see many more strikes in the coming years.

Unelected Bureaucrats Succeed where Democracy "Failed" the Unions

There have been previous attempts to pass striker replacement bills, but none had the support to pass both chambers. Bill Clinton spoke at the Detroit Labor Day parade in 1996. This was during the second year of the infamous Detroit Newspaper Strike, which began in 1995. The Labor Day executive committee met with President Clinton before his speech and we strongly urged him to help and talk about a Striker Replacement Bill that would tilt the balance of power in labor's favor and make strikes an ultimate weapon. President Clinton did speak about it, and in response to a spectator's question, he told them that if they elected a Democratic Congress, the bill would pass and he would sign it into law. (This failed, as almost everyone still realized that forcing companies to unconditionally retain striking workers without allowances was a death-knell for free enterprise and the tax base.)

My opinion is that the NLRB knows exactly what they are doing, and I feel that their objective is the erase the protections that companies require to survive in an increasingly competitive marketplace. Their ruling shows their socialist alignment with the unions and erodes any ability companies had to defend themselves against excessive union demands. This decision is just the latest in a death by a thousand cuts philosophy the Board has undertaken to weaken employers and prop up unions. Rest assured, the Board has their knives sharpened.

Remember, strikes are the strongest tool a union has. Labor has been fighting to upset the balance of power, and being permanently replaced during a strike is a strong incentive, possibly the strongest, to forego use of this overwhelmingly powerful tool.

This latest ruling is simply one of the many reasons for management to increase their readiness, educate their supervisors, and learn about recent labor law changes and how they could affect their company. It has never been more critical to understand employees and treat them fairly and with respect. Frontline supervisors are the most important factor in this endeavor.

If you want to maintain your union-free advantage, you must make staying union-free and engaging positive employee relations part of your corporate DNA.

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