Right to Strike as Important as Freedom to Form a Union

by James Parks, Oct 29, 2007

The National Labor Relations Act was passed to make it easier for workers to form unions and to ensure their right to collectively bargain for a better life and strike if need be. But today, rather than protecting the rights of workers, Julius Getman says:

Our labor laws constitute a massive impediment to the basic rights to organize, bargain collectively and strike.

Getman, professor of law at the University of Texas and pre-eminent scholar in the field of labor law, writes in a new Point of View column at the AFL-CIO website that the union election process overseen by the National Labor Relations Board (NLRB) has been transformed by judicial decisions that make it easy for management to fight unions.

Calling the election process “absurdly one-sided,” Getman says employers can almost always violate the law through threats and acts of reprisal with impunity.

The process has become so one-sided that the AFL-CIO last week took the unusual step of filing a complaint with the International Labor Organization (ILO) charging the Bush administration’s NLRB with denying workers’ rights in violation of international labor standards.

Getman praises working people’s effort to level the playing field through the Employee Free Choice Act, saying unions also should make restoring the right to strike a priority. Congress, along with the NLRB and the courts, consistently have weakened the right to strike until many strikes are now illegal. Even when they are supposedly protected by law, the striking workers run the risk of being permanently replaced.

Getman says restoring the right to strike:

can be achieved easily through a law requiring that strikers are entitled to their jobs at the conclusion of a strike. Attempts to hire permanent replacements should be illegal.

Under current law, he says, the right to strike is so weak that provoking a strike is often a management tactic in collective bargaining. If an employer can, by demanding unreasonable concessions, force a union to strike, the employer can permanently replace the strikers. When union members are afraid to strike, the collective bargaining process is inevitably undermined, Getman says.

For equality of bargaining power to exist, management must fear the strike and structure its bargaining positions so as to avoid it.  

Fear of a strike also can prevent workers seeking to join a union from doing so, Getman adds. In most anti-union campaigns, employers tell employees if they vote to form a union, they may be forced to strike, and if they strike, they may be permanently replaced.

He says:

It is easy to understand why fear of being replaced permanently would motivate a worker to either refuse to sign up or to vote against representation.

To read Getman’s full column, click here.

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