[ Now’s the perfect time to fight for the right to return to a
job once a strike is over. The United States is experiencing a wave of
worker militancy and a White House that actually wants to take
concrete actions to defend and grow labor unions.]
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HAPPY STRIKETOBER. LET'S RESTORE THE LEGAL RIGHT TO STRIKE.  
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Shaun Richman
October 20, 2021
In These Times
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_ Now’s the perfect time to fight for the right to return to a job
once a strike is over. The United States is experiencing a wave of
worker militancy and a White House that actually wants to take
concrete actions to defend and grow labor unions. _

A truck hauls a piece of John Deere equipment from the factory past
workers picketing outside of the John Deere Davenport Works facility
on October 15, 2021 in Davenport, Iowa., Scott Olson/Getty // In These
Times

 

The United States is experiencing a wave of worker militancy and
a White House administration that actually wants to take concrete
actions to defend and grow labor unions. That strange sensation
you’re feeling is optimism about labor’s prospects, reflected in
the giddiness of #Striketober. Let’s take this opportunity to
restore the legal right to strike.

A moment in which tens of thousands of workers _are_ on
strike — at John Deere
[[link removed]],
at Kellogg’s
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at Warrior Met Coal
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seem like a strange time to talk about a ​“right” to strike.
But a legal right to strike must include the right to return to the
job when the strike is over — win, lose or draw — and U.S.
workers haven’t had that right since corporations and Ronald
Reagan’s National Labor Relations Board (NLRB) conspired to
weaponize a long-dormant Supreme Court decision to
legalize union-busting.

Strikes are contagious. The example set by one group of workers going
on strike and returning to their jobs with their heads held high (and
their bosses massively inconvenienced) can inspire other workers to
take action. But the contagion can cut both ways. A failed strike
that ends with the strikers permanently replaced by scabs can spread
fear and hopelessness across communities and industries.

The last year that some touted as a ​“strike
wave” — 2018, when some 485,000 workers went on strike
[[link removed]] in
over 20 large job actions — still only saw unions return to
mid-1980s levels of strike activity. The 1980s were the midpoint of
a historic long-range decline in strike activity. What happened, of
course, was that President Ronald Reagan fired the federal air traffic
controllers in 1981, signaling a new era of union-busting.
A so-called ​“PATCO syndrome”
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in: Workers were afraid to go on strike because it could mean not just
the loss of their pay and the other hazards of the strike itself, but
because a lost strike could mean the loss of their jobs.

Far more significant, however, was a copper mining company called
Phelps Dodge that in 1983 bargained its union to impasse over
draconian cuts in benefits and working standards. The company
successfully dared its union out on strike, then bussed in scabs and
offered them replacement jobs that would continue after the strike was
over. And after 12 months, the company had the scabs vote to
decertify the union. PATCO was symbolic; Phelps Dodge was the
blueprint for getting rid of private-sector unions through
failed strikes.

Phelps Dodge dusted off a 1938 Supreme Court decision _NLRB v.
Mackay Radio_ that purportedly granted employers the right to
permanently replace strikers. And this is where the stars align for
#Striketober and the new NLRB: The _Mackay_ decision was poorly
decided in the first place, rarely revisited and leaves the labor
board with pretty wide discretion to narrow the _Mackay_ doctrine to
the point of meaninglessness for rich corporations.

First, it bears stressing that the National Labor Relations Act
clearly states, ​“Nothing in this Act…shall be construed so as
either to interfere with or impede or diminish in any way the right to
strike, or to affect the limitations or qualifications on that
right.” And the substance of the _Mackay_ decision actually upheld
the right to strike by ruling in favor of an NLRB ruling that the
employer could not discriminate against the strike’s leaders.
Unfortunately, the patrician judge who wrote the majority’s
decision, Justice Owen Roberts, had to put himself in the boss’s
shoes and hem and haw about ​“right to protect and continue his
business,” during those pesky strikes, ​“by supplying places
left vacant by strikers.” And if business conditions required it, he
pointlessly opined, he should be able to have the scabs continue after
the strike as long as he is not motivated by anti-union animus and he
doesn’t discriminate against the strikers for
the _remaining_ vacant positions.

_Mackay_ is a very stupid Supreme Court opinion. It introduces
a hypothetical scenario that’s not supported by the facts. (The
Mackay strike lasted a weekend; there wasn’t even time to hire
scabs.) Parts of it are in contradiction with itself and it plainly
contradicts the law as Congress passed it. The decision has the
appearance of long-settled precedent because of subsequent Court
decisions that rejected other employers’ attempts to discriminate
against strikers as not being ​“proper under _Mackay”_ and
neither the Court nor the NLRB ever seriously investigated
what _is_ proper under _Mackay_.

The NLRB’s new General Counsel Jennifer Abruzzo has signaled that
she is willing to reconsider all kinds of twisted and outdated
precedents that have vastly favored bosses during a nearly
four-decades-long union-busting drive. In an interview with our own
Hamilton Nolan
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she’s indicated a willingness to issue bargaining
orders — not elections — for new unions when employers
commit Unfair Labor Practices, to certify minority members-only
bargaining units
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help unions establish a foothold, and to be more creative
about ​“make whole” financial remedies for terminated
union activists.

Where does Jennifer Abruzzo’s NLRB have the discretion to punish an
employer for hiring permanent scabs? Prompted by a union-filed Unfair
Labor Practice charge, it can investigate an employer’s economic
needs ​“to protect and continue his business” by
hiring _permanent_ replacements. It’s one thing to hire temps, or
have supervisors or salaried workers fill in, but what is the economic
need to promise scabs permanent jobs? Make them come up with stupid
reasons that align with _Mackay_​’s stupid rationale. Would the
John Deere company be in danger of going out of business if it
couldn’t offer scabs permanent jobs? Make them open their books and
prove it. Would Kellogg’s find it impossible to staff their factory
lines if it couldn’t recruit scabs with promises of long-term work?
I think the union could find a couple thousand workers who would be
willing to work those jobs just as soon as the strike ends.

Unions have the winds at their back because of the unique
circumstances of the pandemic making so many workers less willing to
work unpleasant jobs for lousy pay, but labor markets have a way of
tightening that make striking a riskier proposition for workers. We
must take this opportunity to win back our rights for when we’ll
really need them again. In any workplace where workers are on
strike — or just talking about it — if the boss starts to
promise scabs permanent replacement jobs at the end of the labor
dispute _please_ file a damn Unfair Labor Practice charge!

_[SHAUN RICHMAN [[link removed]] is
an In These Times contributing writer and the Program Director of the
Harry Van Arsdale Jr. School of Labor Studies at SUNY Empire State
College. His Twitter handle is @Ess_Dog.]_

_Thanks to the author for sending this to xxxxxx._

_Reprinted with permission from In These Times
[[link removed]].
All rights reserved. _

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