Document Type

Article

Publication Title

Michigan Law Review

Abstract

Ideally, reform of the rules governing strikes should not be viewed in isolation but as part of a comprehensive reexamination of federal labor law aimed at making the system work better in an era of competitive product markets. It makes a difference whether one considers the question assuming the continuation of the existing framework of adversarial labor relations, in which unions view themselves and are viewed by management as advancing an industry- wide wage and job control policy often conflicting with the interests of the particular firm. A different answer might be given in the context of an altered legal regime that promotes a better alignment of interest between the firm and the bargaining agency of its employees. Congress, however, has considered and is likely to continue to take up the strikebreaker issue separately and apart from a broader overhaul of the statutory scheme. The question therefore is, on the assumption that the basic structure of the labor laws will remain in place, is there a case for modifying the Mackay Radio doctrine? In my view, existing law should be modified, but not for the reasons typically given in the literature and by advocates of the Workplace Fairness bill. Those arguments ultimately cannot be reconciled with the central premises of the NLRA, and they require a reassessment of first principles that the bill's proponents claim is unnecessary and thus avoid. Any justification for an isolated change of the rights of strikers and replacement workers - that leaves undisturbed all of the other central features of the scheme - must be consistent with the existing statutory commitment to the mix of regulation and market forces that is captured by the phrase free collective bargaining. That is, workers have a right to insist on collective bargaining of terms and conditions of employment and to promote their interests by engaging in strikes and other concerted activities, but they have no right as such to pursue their economic goals free of competitive forces in both labor and product markets. Continued adherence to the principle of free collective bargaining requires, I argue, rejection of any per se prohibition of the hiring of permanent replacements for economic strikers. If an employer cannot maintain operations by other means or withdraw its capital by relocating operations elsewhere, such a prohibition effectively insulates labor demands from market checks. The unionized firm will continue to face competition in product markets, but its ability to adjust its personnel practices to take account of the labor-cost advantages of competitors will tum on its ability to secure union consent to reductions in labor costs. Some unions may promote industry-wage policies irrespective of the impact on the particular firm. Also, while many unions will not intentionally pursue their dispute to the point of damaging the firm's competitive position, strikes may nevertheless cause such damage because they are often the result of bargaining failures - poor communication, mistrust, distortions in the incentives of union and management leadership, and the like.

First Page

577

DOI

https://doi.org/10.2307/1289924

Volume

93

Publication Date

1994

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