On June 15, 1993, the U.S. House of Representatives voted 239-190 to amend the National Labor Relations Act (NLRA) to prohibit employers from hiring permanent replacement workers in economic strikes. President Clinton promised to sign such legislation.
Republican senators have promised a filibuster, so the Senate leadership has postponed voting on the issue. When and if they round up the necessary sixty votes they will schedule the vote. A filibuster stopped identical legislation in the 102nd Congress, and there is a fair chance that it can do so again.
The proposed legislation applies only to economic strikes, which are union-initiated work stoppages over terms and conditions of employment. It is already illegal for employers to hire permanent replacement workers in unfair labor practice strikes, which are union-initiated work stoppages over illegal actions by employers such as firing a worker for advocating unionism.
The Nature of the Right to Strike
Unionists portray this issue as one of simple justice. They claim that the right to strike, which is guaranteed in the NLRA, is nullified by the ability of employers to hire permanent replacement workers. But what is the right to strike?
Let’s get back to basics. The employment relationship is one of contract between employees and employers. Contracts are formed by parties each of whom perceives that he will thereby gain. They are based on mutual consent. The typical employment contract is an agreement that the employee will perform specified labor services for the employer in exchange for a specified compensation package. Unless a contract specifies the contrary, employees do not have property rights to their jobs.
Since each worker owns his own labor services, he clearly has a fundamental (i.e., independent of government) right to withhold those services if he doesn’t like the compensation package offered by an employer. It follows that like-minded employees have a fundamental right to withhold their labor services together, at the same time. However, there is no fundamental right for any worker, or group of workers, to prevent other workers from accepting the terms that they have refused to accept. To argue the contrary is to assert that strikers own the jobs that they refuse to do. Congress may legislate such a privilege, but that is different from a fundamental right. In the realm of rights rather than privilege, workers don’t own jobs. They own their labor services.
All workers, even nonunion workers, own their labor services. As owners they have a fundamental right to accept any terms of employment they wish, even if some other workers have rejected those terms.
Unionists use the epithet “scab” to refer to workers who are willing to accept terms that union workers have rejected. A scab, unionists thereby suggest, is less than human and therefore has no rights that anyone need worry about. However, calling a replacement worker a scab is not a logical argument. To make their case, those who support the proposed striker replacement legislation have to come up with some justification for subordinating the rights of union-free workers to the interests of union workers.
Moreover, existing law is well balanced between unions and management. The terms and conditions of employment that a striking union seeks have long-run cost implications for its target employer. If employers were prohibited from hiring permanent replacement workers, they could not impose any long-run costs on striking unions. As the U.S. Supreme Court has acknowledged, existing law allows each side to threaten to impose long-run costs. The hiring of permanent replacement workers, according to the Court, is one of the employers’ “economic weapons in reserve” that they may legitimately employ in the collective bargaining process.
Finally, the ability of employers to hire permanent replacement workers provides a market-reality check to both sides in a labor dispute. If an employer is able easily to hire replacements at terms that a union has rejected (current law forbids employers to offer better terms), the union knows its terms are unrealistic. But if the employer cannot do so, it knows that the union’s terms are not unrealistic. If employers were permitted to hire only temporary replacement workers, as the proposed legislation specifies, this market-reality check would vanish. Workers are often reluctant to accept temporary job offers even at high pay.
Although only 11.5 percent of private sector workers are unionized, the proposed legislation creates privileges for union workers at the expense of rights of union-free workers. Is that consistent with the American principle that all people have equal rights and are entitled to equal protection of the laws?