Expert: Raise penalties for misuse of replacement worker

By Mark Reutter

The hiring of replacement workers during strikes is likely
to emerge as the "hot-button" labor issue in 1995, a UI
labor specialist predicts.

With baseball owners drawing up plans to replace striking
ballplayers this spring and with attempts by other employers
to replace striking workers, confrontation between strikers
and replacements appears "all but inevitable," according to
Michael H. LeRoy, a professor in the UI Institute of Labor
and Industrial Relations.

"When Pittston Coal Group hired 1,700 permanent replacements
in 1989, strikers responded by littering highways with
dangerous jackrocks [spikes welded together] and throwing
rocks at passing vehicles," said LeRoy, who has studied the
history of strikes in which replacement workers were hired.
"Even in garden-variety replacement strikes, some violence
is almost always perpetrated by highly frustrated
individuals."

In a soon-to-be-released study, LeRoy notes that strikers
are understandably frustrated because some companies have no
intention of reinstating strikers, as required under federal
labor laws.

In a so-called "economic strike" involving a wage dispute,
an employer is duty bound to reinstate strikers after they
unconditionally end their walkout and a job vacancy becomes
available. However, in a survey of 298 strikes, LeRoy found
that employers failed to rehire strikers in 31 percent of
the cases between 1982 and 1991. This contrasts with a 24
percent failure-to-rehire rate between 1968 and 1981. In one-
third of the cases that came before the National Labor
Relations Board between 1985 and 1991, employers were found
to have unlawfully discharged one or more strikers.

The data suggest, LeRoy writes in the upcoming issue of Yale
Law and Policy Review, that "employers began to think more
strategically about replacing economic strikers around
1975." Instead of "angrily informing strikers that their
employment will be terminated if they fail to return to work
before replacements are hired," some employers simply hired
the replacements, then let the strikers "languish on the
replacement list," never intending to rehire them.

By keeping a replacement list, the employer avoided
converting the strike into an unfair labor practices dispute
that, if won by the union, would require the employer to
fire the replacement workers and reinstate the strikers with
back pay.

LeRoy said this loophole - apparently used by a "small but
persistent minority" of employers - should be closed by
Congress. "Congress should consider amending the National
Labor Relations Act to increase penalties for employer
mistreatment of economic strikers," the article concludes.
"One idea is to allow the NLRB to award double or treble
back-pay damages to economic strikers who are unlawfully
discharged and to unfair-labor-practices strikers who are
not properly reinstated. This proposal recognizes the
generous advantage over strikers that employers already
enjoy and seeks to deter employers from unlawfully enlarging
upon this advantage."