Hostname: page-component-8448b6f56d-c4f8m Total loading time: 0 Render date: 2024-04-23T12:03:26.976Z Has data issue: false hasContentIssue false
  • English
  • Français

Permanent Replacements and the End of Labor's “Only True Weapon”

Published online by Cambridge University Press:  07 November 2008

John Logan
John Logan
Affiliation:
University of California-Berkeley
Get access Rights & Permissions [Opens in a new window]

Abstract

This article analyzes the origins and impact of one of the most powerful antiunion weapons used by American employers during the past four decades: the right to use and threaten to use permanent replacement workers during economic strikes. It examines the policy debate over replacements in the 1930s and 1940s, the increasing use of permanent replacements in the 1970s and 1980s, the growth of a powerful and sophisticated “strike management industry,” and the unsuccessful efforts of organized labor and its political allies to amend the National Labor Relations Act to outlaw permanent replacements. The article concludes with a brief discussion of the relationship between the “striker replacement doctrine” and declining strike levels in the postwar decades.

Type
The Conservative Turn in Postwar United States Working-Class History
Information
International Labor and Working-Class History , Volume 74 , Issue 1 , Fall 2008 , pp. 171 - 192
Copyright
Copyright © International Labor and Working-Class History, Inc. 2008

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Notes

1. Gould, Williams B., Agenda for Reform: The Future of Employment Relationships and the Law (Cambridge, MA, 1993), 202Google Scholar.

2. Kilborn, Peter T., “Replacement Workers: Management's Big Gun,” New York Times, March 13, 1990: A24Google Scholar.

3. Greenhouse, Steven, “Strikes Decrease to 50-Year Low … As Threat of Replacement Rises,” New York Times, January 29, 1996: A1Google Scholar.

4. Richard Trumka, President, United Mine Workers of America, “A Grass Roots Campaign Strategy for Passage of HR 3936 and S 2112,” (1991), American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) Industrial Union Department (IUD) Collection, Unprocessed Collection, AFL-CIO, Washington, D.C. (hereafter cited as IUD Collection).

5. See, for example, Atleson, James, Values and Assumptions in American Labor (Amherst, MA, 1983), 19–34Google Scholar.

6. Edwin S. Smith, “The Status of Strikers as Employees,” National Archives (NA), RG 25 (Records of the National Labor Relations Board), National Labor Board, 1933–34, Office of the Executive Secretary, Case Files with Some Exhibits and Briefs, 1933–35, Cases 99–100, Case No. 99, New Series, Eagle Rubber Company, Ashland, Ohio.

7. Daniel Shortal, memorandum to Samuel Surrey, Re: M.H. Birge and Sons Company, February 24, 1936. NA, RG 25, Formal and Informal Unfair Labor Practices and Representation Case Files, 1935–48, 1935–37, Box 48.

8. Daniel Shortal, memorandum to Samuel Surrey, Re: M.H. Birge and Sons Company, March 2, 1936.

9. Robert F. Wagner, letter to Newspaper Guild of New York, March 8, 1935. Leon Keyserling papers, Box 1, Folder 10, Georgetown University Special Collections.

10. J. Warren Madden, dissenting opinion, In the Matter of M.H. Birge & Sons Company, May 14, 1936. NA, RG 25, Formal and Informal Unfair Labor Practices and Representation Case Files, 1935–48, 1935–37, Box 48.

11. William Leiserson, letter to J. Warren Madden, June 3, 1936. NA, RG 25, Formal and Informal Unfair Labor Practices and Representation Case Files, 1935–48, 1935–37, Box 48.

12. On the impact of Leiserson and Millis on the direction of board policy after 1940, see Tomlins, Christopher, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (Cambridge, 1986), 197–243Google Scholar.

13. NLRB V. MacKay Radio & Telegraph Co., 304 U.S. 333 (1938).

14. D.L. Jordan, Johnson-Carper Furniture Company, letter to Lawrence Seton Ross, United Furniture Workers of America, September 1, 1939. NA, RG 25, Formal and Informal Unfair Labor Practices and Representation Case Files, 1935–48, 1939, Johnson-Carper Furniture, Box 792.

15. NLRB, “Rights and Privileges of Strikers and their Employers,” February 3, 1947. NA, RG 25, Committee Management File, 1934–74, Former Chairmen, 1934–74, Box 4.

16. LeRoy, Michael H., “The Changing Character of Strikes Involving Permanent Striker Replacements, 1935–1990,” Journal of Labor Research 16 (1995): 423–38CrossRefGoogle Scholar.

17. Minchin, Timothy J., What Do We Need a Union For? The TWUA in the South, 1945–1955 (Chapel Hill, NC, 1997)CrossRefGoogle Scholar.

18. Jacoby, Sanford M., Modern Manors: Welfare Capitalism Since the New Deal (Princeton, 1997), 200–205, 228–235Google Scholar.

19. Labor-Management Relations [Taft-Hartley] Act, Section 9©(3).

20. American Federation of Labor, What's Wrong with the Taft-Hartley Law? (Washington, DC, 1949), 13Google Scholar; Eisenhower quoted in “N.A.M. Would Keep Taft Hartley Provision,” New York Times, March 5, 1953.

21. On this point, see, for example, Pope, James G., “How American Workers Lost the Right to Strike, and Other Tales,” Michigan Law Review 103 (2004): 518–553CrossRefGoogle Scholar.

22. Quoted in Logan, John, “The Union Avoidance Industry in the United States,” British Journal of Industrial Relations 44 (2006): 653CrossRefGoogle Scholar.

23. See, for example, Cooke, William N., “The Rising Toll of Discrimination Against Union Activists,” Industrial Relations 24 (1985): 421–442Google Scholar; Freeman, Richard B. and Kleiner, Morris, “Employer Behavior in the Face of Union Organizing Drives,” Industrial and Labor Relations Review 43 (1990): 351–365CrossRefGoogle Scholar.

24. LeRoy, Michael H., “Regulating Employer Use of Permanent Striker Replacements: Empirical Analysis of NLRA and RLA Strikes, 1935–1991,” Berkeley Journal of Employment and Labor Law 16 (1995): 169–208Google Scholar; McCartin, Joseph A., “‘Fire the Hell Out of Them’: Sanitation Workers' Struggles and the Normalization of the Striker Replacement Strategy in the 1970s,” Labor: Studies in the Working-Class History of the Americas 2 (2005): 67–92CrossRefGoogle Scholar.

25. Report on Union Busting, “The Strike As a Management Weapon,” 4 (1979), 1, AFL-CIO Library, George Meany Memorial Archives, Silver Spring, MD.

26. Farber, Henry S. and Western, Bruce, “Ronald Reagan and the Politics of Declining Union Organization,” British Journal of Industrial Relations 40 (2002): 385–402CrossRefGoogle Scholar.

27. Larry Gold and Walter Kamiat, Memo to Thomas R. Donahue, RE: Striker Replacement Bill, March 11, 1991, IUD Collection.

28. Howard Samuel, AFL-CIO, letter to William Ford, Chairman, House Education and Labor Committee, April 17, 1991, IUD Collection.

29. Larry Gold and Walter Kamiat, Memo to Thomas R. Donahue, AFL-CIO, RE: Striker Replacement Bill, March 11, 1991, IUD Collection.

30. Marshall M. Hicks, Utility Workers Union of America, letter to Elmer Chatak, AFL-CIO, April 19, 1994, IUD Collection.

31. Castro, Janice, “Labor Draws An Empty Gun,” Time, March 26, 1990, 56Google Scholar.

32. Quoted in Lane Kirkland, letter to Willard Wirtz, June 1, 1993, IUD Collection.

33. General Accounting Office, Labor-Management Relations: Strikes and the Use of Permanent Replacements in the 1970s and 1980, GAO/HRB-91-2 (Washington, D.C., 1991)Google Scholar.

34. Gramm, Cynthia L., “Employers' Decisions to Operate during Strikes: Consequences and Policy Implications,” in Employee Rights in a Changing Economy, ed., Spriggs, W. (Washington, D.C., 1991)Google Scholar; Schnell, John F. and Gramm, Cynthia L., “The Empirical Relations Between Employers' Striker Replacement Strategies and Strike Duration,” Industrial and Labor Relations Review 47 (1994): 189–206CrossRefGoogle Scholar.

35. BNA Special Report, 1993 Employer Bargaining Objectives (Washington, DC, 1993)Google Scholar; BNA Special Report, 1994 Employer Bargaining Objectives (Washington, D.C., 1994)Google Scholar

36. Robert B. Reich, letter to John Irving, Kirkland and Ellis, March 19, 1993, IUD Collection.

37. Clark S. Herman, letter to Lane Kirkland, President, AFL-CIO, May 2, 1991, IUD Collection.

38. Joseph Uehlein, Director, Special Projects, Memo to Howard Samuel, ALF-CIO, RE: The Threat of Permanent Replacements in Organizing, January 16, 1991, IUD Collection.

39. Getman, Julius G., Goldberg, Stephen B., and Herman, Jeanne B., Union Representation Elections: Law and Reality (New York, 1976)Google Scholar; Statement in Support of S 2112, Julius G. Getman, University of Texas School of Law, IUD Collection.

40. Human Rights Watch, Unfair Advantage: Workers' Freedom of Association in the United States Under International Human Rights Standards (New York, 2000), 195Google Scholar.

41. Joseph Uehlein, Director, Special Projects, Memo to Howard Samuel, AFL-CIO, RE: The Threat of Permanent Replacements in Organizing, January 16, 1991, IUD Collection.

42. SESCO Management Consultants, “How to Prevent and Combat Unionization Successfully” (Chicago, Ill., 1978), Organizing Department Collection, AFL-CIO, Unprocessed Collection, AFL-CIO, Washington, D.C. (hereafter cited as Organizing Department Collection).

43. The Human Incentive and Resource Education Institute, “Controlling a Work Stoppage: Management Survival Tips,” Organizing Department Collection.

44. US Business and Industrial Council, “National Business Leader Blasts Controversial Union-Backed Bill; Says Bill Would Bring Strikes, Violence and Unemployment,” April 3, 1991, IUD Collection.

45. Victor, Kirk, “Disorganized Labor,” National Journal, September 21, 1991: 2256–61Google Scholar.

46. U.S. News & World Report, “The New Lions Who Guard the Gates,” July 24, 1989: 46.

47. Washington Business Journal, “The Way We Work: A Look at Offices of Area Executives,” August 14, 1998; Washington Business Journal, “Vance Gets Piece of Action at UPS,” August 15, 1997. For a longer discussion of the strike management industry, see Logan, John, “The Union Avoidance Industry in the United States,” British Journal of Industrial Relations 44 (2006): 665–668CrossRefGoogle Scholar.

48. See, for example, Air Force Times, April 16, 1990.

49. Martin Herman, President, Special Response Corporation, letter to Martin Levin, September 10, 1988, Organizing Department Collection.

50. Bill Clinton, letter to Donald Fites, Chairman and CEO, Caterpillar, July 12, 1994, IUD Collection; Robert B. Reich, Secretary of Labor, Statement Before the Subcommittee on Labor and Human Resources, US Senate, March 30, 1993, IUD Collection.

51. “Assisted Economic Suicide” (editorial), Detroit News, May 17, 1993.

52. Cooke, William, “Union avoidance and foreign direct investment in the USA,” Employee Relations 23 (2001), 558–580CrossRefGoogle Scholar.

53. Business Week, “Blowup At Bridgestone,” January 30, 1995; Franklin, Stephen, Three Strikes (New York, 2002), 122Google Scholar; Kilborn, Peter T., “Japanese Tire Maker Clashes With Labor Chief Over Strike,” New York Times, January 14, 1995Google Scholar.

54. The White House, Office of the Press Secretary, “Statement by the President,” January 13, 1995, IUD Collection; Daily Labor Report, “URW, Bridgestone/Firestone Agree to Meet With Federal Mediator,” January 17, 1995, A-3; Alan Krueger and Alexandre Mas, “Strikes, Scabs and Tread Separations: Labor Strife and the Production of Defective Bridgestone/Firestone Tires,” National Bureau of Economic Research Working Paper No. 9524.

55. United Steel Workers of America, Continental Tire's Failure in North America (Pittsburgh, April 2007)Google Scholar.

56. Human Rights Watch, Unfair Advantage, 207.

57. The discussion of the striker replacement campaign is taken, in part, from Logan, John, “Labor's Last Stand in National Politics? The Campaign for Striker Replacement Legislation, 1990–1994,” in Advances in Industrial and Labor Relations 13 (2004): 197–256Google Scholar.

58. Daily Labor Report, “AFL-CIO Stokes Publicity Campaign for Bill to Ban Strike Replacements,” August 14, 1990, A-8; Frank Martino, International Chemical Workers Union, letter to Howard Samuel, AFL-CIO, September 25, 1990, IUD Collection.

59. Swoboda, Frank, “The AFL-CIO Begins Campaign on Replacement Workers,” Washington Post, June 21, 1991Google Scholar, F1; Kilborn, Peter T., “Japanese Tire Maker Clashes With Labor Chief Over Strike,” New York Times, January 14, 1995Google Scholar.

60. Many of the unions supporting more comprehensive labor law reform ended up supporting SEIU President John Sweeney in the 1995 election for the presidency of the AFL-CIO, while many of those supporting a more incremental approach supported his opponent, Thomas Donahue. But what really determined their support for striker replacement legislation was the degree to which individual unions had been hurt by the tactic, rather than any deep-rooted ideological divide between “progressive” and “conservative” unions. On the 1995 election, see Dark, Taylor E., “Debating Decline: The 1995 Race for the AFL-CIO Presidency,” Labor History 40 (1999): 323–343CrossRefGoogle Scholar.

61. Andy Stern, Organizing Director, SEIU, “The Labor Movement and a Clinton Administration—Where Should We Stand,” October 21, 1992, Organizing Department Collection.

62. Author's interview with Thomas R. Donahue, January 5, 2003.

63. Lautenschiager, Scott, “Unions Back Bill to Ban ‘Scabs,’ ” State Journal (Madison, WI), September 23, 1990, 29Google Scholar; Daily Labor Report, “Right to Work Targets Senators in Campaign to Defeat Striker Replacement Legislation,” May 23, 1994, A-6/7.

64. Complaint against the Government of the United States presented by the AFL-CIO, Report No. 278, Case No. 1543.

65. Alliance to Keep Americans Working, Editors Against Striker Replacement Legislation (Washington, DC, 1994).

66. Ibid.

67. Daily Labor Report, “Senate Vote Kills Bill to Restrict Use of Permanent Striker Replacements,” June 17, 1992; A-9/11; Swoboda, Frank, “House Bans Use of Permanent Substitute Workers in Strikes,” Washington Post, July 18, 1991: B9Google Scholar; “Death Knell May Be Ringing For Union Strikes,” HR Focus, October 1992, 1; International Paper Company, Washington Newsletter, July 19, 1991, IUD Collection.

68. Dark, Taylor E., The Unions and the Democrats: An Enduring Alliance (Ithaca, NY, 1999), 176–178Google Scholar.

69. Daily Labor Report, “Defeat of Striker Replacement Bill A Victory for Business Coalition,” July 14, 1994, AA-1/3; Catherine Manegold, “State Republicans Deal a Major Defeat to Labor,” New York Times, July 13, 1994.

70. Executive Order No. 12,954, 60 Federal Register 13,023 (1995).

71. Press Briefing by Mike McCurry, The Press Secretary's Office, March 8, 1995, IUD Collection.

72. Lane Kirkland, President, AFL-CIO, letter to Principal Officers of AFL-CIO State Federations, March 8, 1995, IUD Collection.

73. Gray, Jerry, “G.O.P. in Senate Bows to Minority on Striker Issue,” New York Times, March 16, 1995: A1Google Scholar.

74. Chamber of Commerce v. Reich 74 F. 3d 1322 (D.C. Cir., 1996).

75. Daily Labor Report, February 5, 1996, AA-1, E-11.

76. Legal scholar Julius Getman, for example, believes that “it is vital for labor to make a striker replacement law a top priority.” Julius Getman, “Right to Organize, Right to Strike,” AFL-CIO Voice@Work Website (2007).

77. Daily Labor Report, “Major Strikes, Lockouts in 2007 Idled 189,000 Workers, as Lost Worktime Fell,” February 14, 2008: D-1.

78. Bureau of Labor Statistics, “Work stoppages involving 1,000 or more workers, 1947–2007.” (Washington, DC, 2008).

79. Daily Labor Report, “173 Work Stoppages in Fiscal 2007 Fewest in History of Mediation Service,” April 11, 2008: A-1.

80. Lewis, Katherine Reynolds, “Was GM the Last National Strike?” Houston Chronicle, September 28, 2007Google Scholar.

81. Shortal to Surrey, March 2, 1936.

82. Daily Labor Report, “Management Attorney Says Striker Replacement Measure will Tilt Labor Laws Against Employers,” March 6, 1991: A-2/3.

83. Daily Labor Report, “Temporary Worker Growth May Be Cause To Reconsider Legitimacy of Replacements,” February 11, 2008, A-12; M.B. Sturgis Inc., 331 NLRB 173 (2000).

84. Complaint to the ILO Committee on Freedom Of Association by the AFL-CIO Concerning the United States Government's Violations of Freedom of Association and Collective Bargaining by Failing to Enforce the NLRA; Jones Plastic & Engineering Co., 351 NLRB 11 (2007); Target Rock Corp., 324 NLRB 373 (1997).

85. Quoted in Franklin, Stephen and Arndt, Michael, “Time Grows Short in Battle Over Striker-Replacement Bill,” Chicago Tribune, June 1992Google Scholar.