To protect the interests of striking workers and employers alike, our labor laws have maintained a clear and consistent distinction between two types of striking workers: Those who walk off their jobs due to an employer's abusive labor practices (an unfair labor practices strike); and those who voluntarily strike for higher pay or increased benefits (economic strike).
For more than 50 years, the distinction between unfair labor practice disputes and economic strikes has been considered so essential to fair and balanced labor relations that, until recently, it had never been questioned - even by organized labor.But a bill now before Congress banning permanent replacements (House Resolution 5) would eliminate this distinction, dismiss any notion of equitable bargaining terms, and grant unions unlimited leverage during strikes and bargaining.
Because strikers in an unfair labor practice dispute have been forced to the picket line by an employer's illegal practices, they are guaranteed immediate reinstatement with full benefits after the strike is over.
Current law recognizes that an employer who violates employees' legal rights should not be able to continue business as usual while operating outside the law.
When organized labor does resort to the economic strike, current law already prohibits discrimination based on union membership, mandates preferential rehiring of returning strikers with full benefits as vacancies occur, and makes illegal any promised preferential treatment of prospective employees.
But, in an economic strike (such as a strike for higher pay) the law also recognizes that an employer who has not broken the law - who simply disagrees with the union's economic demands - has the right to try to stay in business by hiring replacement workers.
To attract such replacements, it is often necessary to offer permanent jobs. However, when a company does bring in permanent replacements, it is prohibited from offering them a better deal than it offers the strikers at the bargaining table.
Current law is intended to discourage every dispute from triggering a strike. When union members voluntarily walk away from $38,000-a-year production jobs in Maine, or $98,000-a-year jobs as pilots, or $200,000-a-year jobs as professional football players, they know that there is a substantial risk that other workers might find such pay acceptable.
Thus, an economic strike is a calculated risk on the part of the union. A union striking for economic demands, which may or may not be reasonable, should not be afforded the same immunity to risk of replacement given to workers whose legal rights have been violated.
Under the provisions of House Resolution 5, Rep. Clay's legislation, unions would no longer have to weigh the risks of job loss against the reasonableness of their economic demand.
A permanent replacements ban would abolish the mutual risk faced by opposing sides in an economic strike - the important mutual risk that pressures both management and labor toward compromise and conciliation, and makes both sides think twice about demands or policies likely to precipitate a strike.
The measure does not purport to correct some "loophole" or address a pervasive problem. Two General Accounting Office reports have shown that permanent replacements are used in only 15 percent to 17 percent of strikes, and affect less than 4 percent of all strikers.
The infrequency with which employers have exercised the option to replace workers illustrates the balance of mutual risks under current law, which helps bring unions and management closer to reconciliation and continued productivity.
Strikes have always been an option of last resort. If enacted, this legislation would make them the first.
(Rep. Porter, R-Ill., is a member of the House Appropriations Subcommittee on Labor, Health and Human Services and Education.)