On the Right to Strike
OCTOBER 01, 1990 by CHARLES W. BAIRD
Strikes have re-emerged as a political and labor relations issue. During most of the 1980s, private sector unions used their strike-threat weapon very sparingly. Many employers and unions pointed out that if American industry is to regain its competitive strength, the adversarial union relations model of the National Labor Relations Act (the Wagner Act of 1935, amended by the Taft-Hartley Labor Act of 1947 and the Landrum-Griffin Act of 1959) must be replaced by more cooperative labor relations. However, it now appears that many in the union hierarchy ave decided to revive adversarial relations in general and strike threats in particular. The recent [1989 and 1990] strikes have received a lot of media attention — the Eastern Airlines strike, the Pittston Coal strike, and the Greyhound strike. The thrust of the media coverage has been that the strike-threat weapon isn’t nearly as formidable as it used to be. The chief culprit is alleged to be President Reagan. When he fired the PATCO strikers in August 1981 and successfully hired replacements, he created a model that private sector employers now emulate. It used to be that employers thought it would be bad public relations to hire replacement workers during a strike, but according to the media, Reagan;’s actions have removed the stigma. Furthermore, during the 1980s the Supreme Court issued several decisions that significantly reduced the economic value of the unions’ strike-threat weapon.
Unionists are so upset at these setbacks that they have sought relief from Congress. Legislation has been submitted in the House and Senate that would make it illegal for any employer to hire permanent replacement workers during a strike. William Bywater, president of the International Union of Electrical Workers, asserts that the union hierarchy has adopted this legislation as its principal legislative priority in the present  Congress. Moreover, the Supreme Court cases were all decided on legislative, not constitutional grounds, so Congress can override the Court by passing ordinary remedial legislation.
Some unionists have proposed just that.
Before they rush to do the bidding of the AFL-CIO, legislators ought to examine the nature of the strike-threat weapon and consider in what sense, if any, there exists a legitimate right to strike. That is what I propose to do in this essay.
What is a Strike?
When I ask students to define the word "Strike," the most frequent answer I get is that a strike is a collective withholding of labor services by workers who do not like the pay and benefits package and employer has offered to them. This is the definition of strike that appears in most textbooks. IF this definition were accurate, I would strongly affirm that there is a moral, as well as a legal, right to strike. But the definition is wrong. Section 13 of the National Labor Relations Act gives unionized private sector workers a legal right to strike, but there is no moral right to strike.
A strike is more than the collective withholding of labor services. It is, in addition, an attempt to shut the employer down by denying the employer access to suppliers, customers, and, most important, workers who are willing to work. The picket line is the principal means to this end. As the Supreme Court acknowledged in American Steel Foundries v. Tri City Trades Council (1921), even peaceful picket lines can intimidate. Moreover, picket lines are seldom peaceful. People who attempt to cross picket lines are routinely threatened with and are often subject to violence. That is why the Supreme Court, in strongly affirming the voluntary exchange rights of all participants in the labor market, limited picketing to one picket per entrance in the Tri City case. The National Labor Relations Act has change the law, but it hasn’t changed the right.
A Legitimate Right to Strike
There is an awful amount of muddled thinking about rights on college campuses and among the judiciary. According to the jurisprudential doctrine called legal positivism, legislation creates rights. There are no natural rights. IT’s a matter of counting the votes. For example, if there are enough votes in Congress in favor of creating a right for person A to interfere in a voluntary exchange between persons B and C, then such a right may be created. All that is needed is that the correct procedures for enacting legislation be followed. According to this view, there are no substantive limits on what Congress may enact.
Legal positivism emerged in American jurisprudence during the first third of the 20th century. Roscoe Pound, Louis Brandeis, Felix Frankfurter, and Oliver Wendell Holmes, Jr. were among its chief protagonists. Legal positivism gained majority support on the Supreme Court during the New Deal and it has been dominant ever since.
The framers of the Constitution were not legal positivists. They subscribed to the idea that there are fundamental human rights that cannot be justly overridden by any act of Congress. Such rights are inherent in human nature. They do not depend on the outcome of any election. Government does not create or grant these rights. They are antecedent to government. According to this view, in order for an alleged right to be a legitimate human right it must be possible for all humans to possess and exercise the right simultaneously without logical contradiction.
For example, does any person have a legitimate right to a job? If person X claims the right to have a job irrespective of the willingness of any person Y to employ him, then X’s job related rights are different from Y’s job-related rights. X is entitled to possess a job and Y has the duty to provide it. Since such an alleged right cannot be held and exercised simultaneously by all people in the same way, it is not a legitimate human right.
The only job-related right that can be held and exercised by all people in the same way is the right to make job-related offers to others. Sellers of labor services have a right to offer to work for any employer on any terms the sellers wish. They do not have a right to compel any employer to accept such offers. In exactly the same way, employers have a right to offer to employ any worker on any terms whatsoever. They do not have the right to compel any employee to accept such offers. In short, the employment relationship is a contractual relationship based on mutual consent. In the absence of a contractual agreement to the contrary, no employee has a property right to any job.
What about the right to strike? In the absence of a contractual agreement to the contrary, any employee has a right to withhold his labor services from an employer if he doesn’t like the pay and benefits the employer offers. If each individual has this right, then a group of like-minded individuals can exercise this right together. In other words, all individuals who want to may withhold their labor services at the same time. If this concerted action induces the employer to acquiesce to the workers’ terms, so be it. That will depend on the relative bargaining power of the two sides, and neither side has a natural right to any bargaining power advantage. Each side’s bargaining power depends on the attractiveness of its alternatives.
However, and this is the central point, notwithstanding Section 13 of the National Labor Relations Act, like-minded workers who simultaneously withhold their labor services have no legitimate right to interfere in any way with the right of the struck employer to engage in voluntary exchanges with customers, suppliers, and other workers. Workers who are willing to work for a strike employer who wishes to hire them have a legitimate right to do so. Moreover, they may agree to accept the very terms of employment that the strikers consider to be unacceptable. Replacement workers have the same job-related natural rights as striking workers.
Unionists resort to name-calling to imply that replacement workers don’t have the same voluntary exchange rights as other workers. "Strike breakers" and, even more pejoratively, "scabs" are typical epithets. Jack London, for example, once wrote, "After God had finished the rattlesnake, the toad, the vampire, He had some awful substance left with which he made a scab." Richard Trumka, president of the United Mine Workers, who led the Pittston strike, thought it sufficient to say, "Replacement worker is a nice refinement in terminology, but a scab is a scab" to make a case against employers who hire replacements. But scabs are human, and as Thomas Jefferson would put it, they are endowed by their Creator with the same unalienable rights as any other human. Notwithstanding the tenets of legal positivism, not even Congress can justly take away unalienable rights.
Replacement Workers and the Law
The National Labor Relations Act became law in 1935. The law guaranteed a right to strike and to use picket lines to try to prevent the struck firm from operating. The Tri City one-picket-per-entrance rule of 1921 was overturned. Mass picketing is now legal. So long as overt violence is avoided (or disguised), pickets may threaten and cajole anyone who attempts to cross the lines. Since the National Labor Relations Act pre-empts state law, and since the local police are frequently outnumbered, police are often reluctant to step in even when overt violence takes place. During the Pittston strike, for example, the mines were effectively shut down by violence and threats of violence. Even judicially imposed injunctions and fines were incapable of restoring the voluntary exchange right of nonstrikers.
Section 2 of the National Labor Relations Act provides that employers may not fire striking workers, Strikers have property rights tot he jobs they refuse to perform. However, in NRLB v. Mackay Radio and Telegraph Co. (1938), the Supreme Court held that struck employers may hire permanent replacement workers in economic strikes, as well as temporary replacement workers in unfair labor practices strikes. An economic strike is one over issues such as pay, working conditions, and benefits. An unfair labor practice strike is one over some alleged illegal act of the employer such as discriminating against union workers or refusing to bargain with certified exclusive bargaining agent. In an economic strike, the strikers are still employees (they may not be fired), but the employer doesn’t have to reinstate them immediately following a settlement. They have first claim on any job that a replacement worker later vacates. In an unfair labor practice strike, striking workers must, upon settlement of the strike, be given the opportunity to take over jobs held by the replacement workers.
The Court did not decide Mackay on constitutional grounds. The Court merely held that the National Labor Relations Act doesn’t prevent struck employers from hiring replacements. The Court, in keeping with its legal positivist doctrine, said that Congress may pass a law banning replacements but, until it does employers are free to hire them.
In Belknap v. Hale (1983), the Supreme Court acted further to uphold the voluntary exchange rights of permanent replacements. Prior to Belknap, some struck employers hired replacement workers and told them that their jobs were permanent. Then, after the strike was settled, these replacement workers were often dismissed and returning strikers took their place. In Belknap the Court held that if an employer tells replacement workers that they are permanent replacements and then dismisses them when a strike is settled, the dismissed replacement workers may sue the employer for in state courts for breach of contract. As the law stands now, during an economic strike employers are legally entitled to hire permanent replacement workers. If they do so they cannot offer those positions to strikers as part of a strike settlement.
Legislation has recently been introduced in the House and Senate that would make hiring permanent replacements illegal in all strikes. Temporary replacements could be hired, but it is very difficult to find qualified workers to take jobs on a temporary basis. The intended effect of the proposed legislation is to make the union strike-threat more credible as an economic weapon against employers. It is an egregious example of politicians attempting to grant special privileged to an organized, and politically active, interest group in exchange for financial an in-kind assistance at election time.
Recent Supreme Court Cases
The Supreme Court has recently issued three decisions that further decrease the effectiveness of the unions’ strike-threat weapon. From a unionist’s perspective, these cases violate the rights of union workers. From a natural rights perspective, the Court has only partially restored some basic liberties to nonunion workers and employers. Those same liberties had been unjustly overridden by earlier Court cases upholding and interpreting the National Labor Relations Act.
In Pattern Makers League v. NLRB (1985), the Court ruled that a union member may resign from the union during a strike and cross a picket line without fear of legal retribution from the union. Under existing law, a union may fine a member who crosses a picket line, and the fine will be enforced by government courts. But a nonmember may cross a picket line with (legal) impunity. Prior to Pattern Makers, a union member had to give a 30-day notice before he or she could resign, and no one could resign membership during a strike. Now a union member can resign at any time without notice.
Except in the 21 states that have prohibited them in the private sector, union security clauses may be included in collective bargaining agreements. Under a union security clause, every worker who works in a union firm must either join the union (union shop) or pay service fees to the union (agency shop) as a condition of continued employment. In Communications Workers v. Beck (1988), the Court declared that money forcibly collected from unwilling workers could only be used by the union to pay for the costs of collective bargaining, contract administration, and grievance procedures. No such money could be used for partisan or ideological advocacy or union organizing activities. Fees collected from dissenting workers had to be less than the regular dues collected from voluntary union members. In the case of a union shop, any worker can become a "financial core" member at will. That is, membership duties are limited only to paying reduced dues.
In TWA v. Flight Attendants (1989), the Court held that after a strike settlement, employers need not replace "crossover" workers with returning strikers who have more seniority. A crossover worker is a striker who crosses a picket line to return to work before a strike is settled. Prior to Flight Attendants, strikers maintained their seniority privileges after a strike. A crossover worker who was doing the job previously done by a more senior striker would have to give up the job to the returning worker. Now a striker may permanently lose a job assignment to a less senior crossover.
In sum, these three cases have made it more difficult for unions to maintain solidarity. During a strike a union member may resign at will from the union and cross the picket line. Such a worker completely avoids the union dues or, under a union security arrangement, at least reduces his or her dues-paying liability. Moreover, as a crossover, such a worker perhaps gains permanent job assignments hitherto reserved for more senior employees. In conjunction with the Mackay doctrine, which enables employers to hire permanent replacement workers, these cases make unions less willing to strike. They decrease the economic value of strike-threats to unions, but they restore some voluntary exchange rights to others.
The current Supreme Court appears to be tentatively moving toward supporting the voluntary exchange rights of all workers. But, since all of these cases have been decided on legislative, not constitutional, grounds, all Congress has to do is again promote unionists’ privileges over the rights of others is amend the National Labor Relations Act. Moreover, as present justices retire and new ones take their places, the Court itself could easily move back toward promoting unionist privileges at the expense of others. A constitutional amendment that incorporates the safeguards the Court enunciated in 1921 in the Tri-City case and makes affiliation with a union a matter of individual choice, not majority vote, is the only (nearly) reliable way to defend the legitimate rights of all participants in labor markets.