X. LABOR STUDIES/LABOR UNIONS, COLLECTIVE BARGAINING, DISPUTE RESOLUTION AND LABOR AND EMPLOYMENT LAW
REFEREED PAPERS

The NLRA’s “No-Man’s Land” in Partial and Intermittent Strikes:
Research and Policy Implications

MICHAEL H. LEROY
University of Illinois at Urbana-Champaign

Abstract

      Partial and intermittent strikes, common in the early years of the NLRA but dormant thereafter, have made a comeback. Preliminary findings are presented for these unconventional strikes. Although these work stoppages are still infrequent, they appear to be occurring more often in response to employer hiring of permanent striker replacements. Since 1990, they have exhibited industry patterns (e.g., airlines and education). Preliminary research also indicates that occupational certification plays an important role in these job actions, since employers cannot easily find short-term replacements. Finally, for airlines the mere threat of a CHAOS or HAVOC job action is costly and appears to increase union bargaining power.

      The strike weapon has been blunted since the late 1970s. To illustrate, only 19 strikes occurred among large bargaining units in 1999, compared to 235 in 1979. More global competition, contingent workers, and aggressive management consultants and lawyers have led to this decline. These factors have revolved, however, around greater employer willingness to hire permanent striker replacements.

      Unions have responded to this loss of bargaining power with on-the-job strategies. Work-to-rule tactics (e.g., a slowdown for safety regulations) protect workers from replacement while creating nuisance costs for employers. In a related vein, while unions have stayed on the job during labor disputes, they have taken their disputes to shareholder meetings or their employer’s creditors or consumers. These tactics have helped unions avoid the high costs of a strike.

      A new kind of strike has recently emerged, however. Called HAVOC or CHAOS in the airline industry, where these strikes have occurred most often, they are brief and involve only a few workers. For example, flight attendant unions threaten to have crews walk off the job just as passengers are boarding, but do not disclose which flights or how many are targeted. They also publicize their threat well in advance. This becomes costly to airlines when customers switch carriers to avoid cancellations.

      Partial and intermittent strikes are not really new. They have occurred since the 1930s. This paper examines current forms of these unconventional strikes. Apart from their shorter duration, how do they differ from full-scale strikes? What industries are most affected? To what extent are partial and intermittent strikers protected by law? Finally, what does this emerging trend imply for industrial relations research and public policy?

What Are Partial and Intermittent Strikes?

      A strike is a withdrawal of labor for the purpose of putting economic pressure on an employer. It ends when an employer agrees to a contract, or when a union--having lost its economic contest--returns on the employer’s terms. No union can tell when a strike will end. A strike also involves the entire bargaining unit, even when some workers crossover.

      By law, an employer is permitted to hire permanent replacements for strikers (Mackay Radio 1938). While strikers cannot be fired, they do not have a right to return to their jobs upon ending their work stoppage. Unless their employer agrees to reinstate them, the law provides them a right to reinstatement only when a vacancy occurs (Laidlaw 1971). This can take years. Strikes that fail can be very costly to unions and their members.

      In the 1980s and 1990s, unions experienced high strike costs. Strikers were permanently replaced by airlines (Continental Airlines, United Airlines, Trans World Airlines, Eastern Airlines), manufacturers (Bridgestone/Firestone, Ravenswood, Oregon Steel), newspapers (Detroit Free Press, Chicago Tribune, San Francisco Chronicle), and mining companies (Phelps Dodge, Pittston Coal). The federal government hired 12,000 replacements in the PATCO strike.

      In contrast, a partial strike involves only a small fraction of the bargaining unit. An intermittent strike involves two other variables: timing and duration. It is often timed to maximize disruption to an employer’s operations. Work interruptions may last only an hour--long enough to miss a meeting, a work assignment, an overtime shift. The striker then returns to work, that day or the next. She may withdraw her labor again, perhaps repeatedly.

      To illustrate, in 1978 flight attendants for Alaska Airlines staged a conventional strike. The airline hired permanent replacements, resulting in high union strike costs. In 1991, when the parties were at impasse again, the union staged a CHAOS strike (“Create Havoc Around Our System”). This involved only a handful of employees. After a few crews walked off flights that were boarding, airline operations were seriously disrupted. Strikers returned to work after their flights were canceled--and before they could be replaced.

The “No-Man’s Land” of Partial and Intermittent Strikes Under the NLRA

      Partial and intermittent strikes are a strategic union response to the hiring of permanent striker replacements. Although they appear to be recent innovations, these limited strikes have occurred since the inception of the NLRA. Initially, the NLRB ruled that partial and intermittent strikes were lawful and protected. In American Mfg. Concern (1938), union workers walked off their jobs an hour before quitting time in support of their bargaining proposal to reduce the workweek from 45 to 40 hours. They were discharged for breaking a rule. The company contended that the strike was unprotected, since there was notice of the rule and because its use of discipline was not discriminatory. The Board disagreed: “The cessation of work by a group is no less a strike because the group itself may not have considered its action to constitute a strike.”

      This precedent eroded as state labor boards began to regulate strikes. A conflict emerged between federal and state law. Matters came to a head in Int’l Union, UAW Local 232 v. Wisconsin Employment Relations Commission (also called Briggs-Stratton 1949). The union and company were at an impasse in talks for a new contract. While workers stayed on the job, they engaged in ' surprise strikes over 4 months. These were limited to walking off the job mid-shift to attend unannounced union meetings. Production was regularly disrupted.

      Instead of disciplining workers, the company filed an unfair labor practice complaint with the Wisconsin Employment Relations Commission. The state agency, and later the state supreme court, ruled for the company. The U.S. Supreme Court upheld these rulings. In two later cases, the Court retreated from this precedent. However, these rulings created an ambiguous public policy. While partial and intermittent strikes are not unlawful, they are also unprotected.

      In NLRB v. Insurance Agents Int’l Union (1960), salesmen engaged in several on-the-job tactics to pressure Prudential into agreeing to a contract. Periodically they refused to solicit new business, delayed paperwork, and reported late to meetings. Prudential charged the union with failure to bargain in good faith. The NLRB agreed, reasoning that the union’s “reliance upon harassing tactics during the course of negotiations for the avowed purpose of compelling the Company to capitulate to its terms is the antithesis of reasoned discussion.” The Supreme Court reversed this ruling. In its view, “the use of economic pressure by the parties to a labor dispute is part and parcel of the process of collective bargaining.” The Court also noted that “surely it cannot be said that the only economic weapons consistent with good-faith bargaining are those which minimize the pressure on the other party or maximize the disadvantage to the party using them.” But the Court stopped short of protecting these strikes when it said that Prudential could have discharged agents without violating the NLRA. In sum, “a union activity [that] is not protected against disciplinary action does not mean that it constitutes a refusal to bargain in good faith” (494–95).

      Machinists v. Wisconsin Employment Relations Commission (1976) is the most recent Supreme Court ruling on these strikes. As they bargained for a new contract, a company and union reached impasse over the definition of a workweek. The union wanted a 7 1/2–hour workday. The company wanted 8 hours to reduce weekly overtime costs. Employees then punched out 30 minutes early and reported for work the next day. This amounted to refusing to work overtime. Rather than fire its workers, the company sought a ruling from the same state labor board that ruled in Briggs Stratton. WERC issued a cease-and-desist order, and the Wisconsin Supreme Court affirmed.

      The U.S. Supreme Court reversed this judgment, holding that the union’s refusal to work overtime was “peaceful conduct constituting activity which must be free of regulation by the States if the congressional intent in enacting the comprehensive federal law of labor relations is not to be frustrated” (p. 155). This ruling sharply limited state authority to regulate strikes. States are permitted to regulate strike-related violence and intimidation as a function of their police powers to preserve law and order. Peaceful overtime strikes are another matter, according to the Court: “It is not contended . . . that the Union policy against overtime work was enforced by violence or threats of intimidation or injury to property. Workers simply left the plant at the end of their workshift and refused to volunteer for or accept overtime or Saturday work.”

      This overruled Briggs-Stratton but again stopped short of protecting partial and intermittent strikes. The majority believed that a partial strike might be an act of disloyalty that was unprotected under the NLRA, or violate a contractual promise to accept compulsory overtime. Their ruling simply meant that the NLRB, rather than state courts or agencies, should rule on these matters. Justice Stevens’ dissent went to the heart of the problem with this approach. If, as the majority suggested, an employer has a right to discipline employees for leaving work early without permission, how could this activity also be lawful under the NLRA? He believed that limited strikes were left in a regulatory “no-man’s land” in which they are not unlawful but unprotected.

      Since then, the NLRB has ruled that partial and intermittent strikes are not protected (e.g., E.R. Carpenter Co. 1980; Audubon Health Care Center 1983). Restating this rule (Hostar Marine Transport Systems 1990), the NLRB said:

While employees may protest and ultimately seek to change any term or condition of their employment by striking or engaging in a work stoppage, the strike or stoppage must be complete, that is, the employees must withhold all their services from their employer. They cannot pick and choose the work they will do or when they will do it. Such conduct constitutes an attempt by the employees to set their own terms and conditions of employment in defiance of their employer’s authority to determine those matters and is unprotected. (193)

A more recent paradox has been added to partial and intermittent strikes. Two recent court rulings involving these strikes under the Railway Labor Act (RLA) had the effect of protecting CHAOS strikers. In Pan American World Airways v. Int’l B’hd of Teamsters, Local 732 (1990), Pan American World Airways unsuccessfully petitioned a federal district court to enjoin employees from engaging in 1-hour work stoppages. The district court in Association of Flight Attendants v. Alaska Airlines (1993) went further when it specifically ruled that a CHAOS strike was protected under the RLA. The union obtained an injunction that barred the airline from firing CHAOS strikers. In making this ruling the court rejected the airline’s argument that CHAOS work stoppages are unprotected activity.

Partial and Intermittent Strikes: Survey and Preliminary Conclusions

      Partial and intermittent strikes are difficult to classify. Since the federal government tabulates only full-scale strikes, limited strikes are not reported by the usual sources (BLS and FMCS). I filled this void by searching for reports of these strikes since 1990 in WESTLAW’s electronic databases for NLRB and federal court decisions, and U.S. newspapers. I chose this year because a recent list could lead to a detailed case study.

      Many of these strikes are probably unreported because of their low intensity. A more fundamental research problem is how to define them. A partial or intermittent strike must involve some form of withdrawal from work, however temporary. In addition, it must involve concerted activity and planning. A job-action by one worker does not count (e.g., Myth, Inc. d/b/a Pikes Peak Pain Program 1998), nor does a spontaneous and short-lived strike (e.g., Regency Service Carts 1998). The requirement for withdrawal of labor distinguishes partial and intermittent strikes from work-to-rule tactics. Finally, a strike must involve only selective portions of the bargaining unit (partial strike), or targeted work periods or assignments (partial strike), or repetitious withdrawal (intermittent strike).

      Table 1 (below) summarizes partial and intermittent strikes since 1990. My preliminary findings suggest that these strikes have observable patterns and effects on bargaining. (1) Partial and intermittent strikes are rare, even assuming that Table 1 underreports their frequency. (2) These strikes exhibit industry patterns (e.g., airlines and education). (3) Occupational certification plays an important role. Flight attendants require training before the FAA allows them to work. Teachers must hold certificates to work. When these employees withdraw their labor for only brief periods, they are virtually immune from replacement or discharge. (4) The threat of these strikes can be costly to employers (e.g., customers defected en masse as flight attendants and pilots engaged in CHAOS strikes at America West and United).

      More investigation of partial and intermittent strikes is needed. Although they are rare, they appear to be highly effective. By hybridizing conventional strikes and in-plant strategies, they seem to redistribute strike costs to the detriment of employers and benefit of workers. This is noteworthy because it reverses the pattern of dispute costs for replacement strikes since the 1980s. Their effect seems magnified with just-in-time work processes. Thus, this weapon offers a union more control over the timing and scope of a dispute than a full-scale strike.

      Still, very little is known about this phenomenon. Detailed case studies would help to answer these important questions: How do worker attitudes differ about these job-actions and traditional strikes? What are the costs of a CHAOS strike for employers, and for unions and their members? How do theses strikes affect bargaining outcomes? Are fewer partial and intermittent strikes observed under the NLRA because they have been unprotected since the 1976 ruling?

      There are also important public policy questions to answer. Why should the NLRA treat a peaceful 30-minute striker the same as a violent striker (Clear Pine Mouldings 1984)? Are the two recent RLA cases that protect partial and intermittent strikes anomalies, or will they influence the Board and federal courts to reconsider the “no-man’s land” under the NLRA? What public interest is served in having an NLRA policy that is so convoluted and so divergent from a similar law for airline and railroad employees? Why have courts and the NLRB not concluded that the lockout weapon is a better public policy than the current “no-man’s land”? After all, a lockout allows an employer to meet pressure with pressure (Central Illinois Public Service Company 1998). It also mitigates a union’s control over the timing of labor disputes. A defensive lockout merely synchronizes weapons without precipitating conflict. Most importantly, while a lockout is a potent weapon, it does not sever the employment relationship.

      In sum, current public policy is deeply conflicted. The Insurance Agents court said that “collective bargaining is a brute contest of economic power.” In reality, however, workers must choose between a high-risk full-scale strike that exposes them to permanent replacement, or engage in a limited strike and risk being fired. Why should the law permit only full-scale economic warfare but not guerilla tactics? And if the expansive right to strike in Section 13 means what it says--that “nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike”--how can the NLRB and federal courts justify a policy of their own creation that deprives employees a peaceful economic weapon simply because that tactic appears to succeed so often?

References

American Manufacturing Concern, 7 N.L.R.B. 753 (1938).

Association of Flight Attendants v. Alaska Airlines, 847 F.Supp. 832 (W.D. Wa. 1993).

Audubon Health Care Center, 268 N.L.R.B. 135 (1983).

Central Illinois Public Service Company and Local 702, International Brotherhood of Electrical Workers, 326 N.L.R.B. No. 80 (1998).

Clear Pine Mouldings, 268 N.L.R.B. 173 (1984).

E. R.Carpenter Co., 252 N.L.R.B. 18 (1980).

Hostar Marine Transport Systems, 298 N.L.R.B. 188 (1990).

International Union, UAW Local 232 v. Wisconsin Employment Relations Commission (Briggs-Stratton), 336 U.S. 245 (1949).

Laidlaw Corp. and Local 681, International Brotherhood of Pulp, Sulphite, & Paper Mill Workers, 171 N.L.R.B 1366 (1968).

Machinists v. Wisconsin Employment Relations Commission, 4' U.S. 132 (1976).

Myth, Inc. d/b/a Pikes Peak Pain Program, 326 N.L.R.B. No. 28 (1998).

NLRB v. Insurance Agents International Union, 361 U.S. 477 (1960).

NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938).

Pan American World Airways v. International Brotherhood of Teamsters, Local 732, 894 F.2d 36 (2d Cir. 1990).

Regency Service Carts, 325 N.L.R.B. No. 94 (1998).