# Can you replace striking workers **URL:** \ **Category:** Factual Questions\ **Created:** [August 9, 2005, 10:54pm UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357 "2005-08-09T22:54:01Z")\ **Posts on this page:** 14\ **Page:** 2
**Author:** ![PastAllReason](https://avatars.discourse-cdn.com/v4/letter/p/f07891/32.png) [@PastAllReason](https://boards.straightdope.com/u/PastAllReason)\ **Post date:** [August 10, 2005, 2:41am UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/21 "2005-08-10T02:41:22Z")
> [@Voluble](#): > > Generally, government workers are not allowed to strike. Theoretically the only jobs the government is supposed to provide are for positions where it is critical that somebody be performing the functions of the job at all times and there is no other way for those functions to be provided in the private sector. Therefore, government workers are not allowed to strike… even those whose services are not actually critical or whose functions could be better performed by a private entity. The Air Traffic Controllers learned this lesson much to their chagrin during the Reagan Administration. It is not uncommon in other countries for all mass transportation to be shut down over some labor disagreement. > > I think I am correct in saying that Unions are free to negotiate a contract with the employer that spells out just what rights each side has in a labor dispute. This may be true in the U.S. I’m not in a position to know. In Canada, it is fairly common for government workers (excepting management), whether within executive government, or other governmental structures such as Crown Corporations to be organized, and to have the right to strike. Generally speaking workers within the federal sector are governed by federal law; and provincial by provincial law. Workers at both levels do strike. It is also possible for the government to then mandate a return to work. And they have done that as well. As to your comment that theoretically the government is supposed to provide only services that there is no way the public sector can provide at all times, I’d agree that this is one theory of the role of a government, but not the only worldview. As to the subject of hiring replacement workers during a strike/lockout, in Canada at least one might expect that to be covered by the governing legislation of the jurisidiction, as well as addressing the rights of workers to reinstatement following the cessation of the strike or lockout. In Saskatchewan, for example, there is no prohibition on the hiring of replacement workers, however, per section 46 of _The Trade Union Act_, there is the right of reinstatement. By section 68 of the _Labour Relations Code_, in BC there is (or was - can’t check current statutes at home) a ban on the use of replacement workers, whether paid or not. Balancing this are the essential services provisions, which by section 72 of the _Code_ can result in a return to work where “necessary or essential to prevent immediate and serious danger to the health, safety or welfare of the residents of British Columbia.” And Q.E.D., in many jurisdictions what you’ve described, if proved, would constitute an unfair labour practice with potential consequences that could include payment of lost wages, fines, and even potentially mandatory certification. ---
**Author:** ![Q.E.D](https://avatars.discourse-cdn.com/v4/letter/q/51bf81/32.png) [@Q.E.D](https://boards.straightdope.com/u/Q.E.D)\ **Post date:** [August 10, 2005, 3:07am UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/22 "2005-08-10T03:07:09Z")
> [@PastAllReason](#): > > TAnd Q.E.D., in many jurisdictions what you’ve described, if proved, would constitute an unfair labour practice with potential consequences that could include payment of lost wages, fines, and even potentially mandatory certification. I can’t say this surprises me. It always struck me as patently unfair, but I am no labor law expert, by any stretch. In this context, what is “mandatory certification”? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 10, 2005, 5:39am UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/23 "2005-08-10T05:39:06Z")
> [@Q.E.D.](#): > > In this context, what is “mandatory certification”? Short answer: the union gets recognised for a particular workplace in spite of the attempts by the employer to bust the union. Longer answer: The Canadian labour union system is modeled on the US Wagner Act, which is based on the idea of certification: if a union signs up the majority of the workers in a particular work place, it can apply to the labour relations board to be certified as the bargaining agent for that workplace. Once certified, the union has exclusive rights to bargain for the workers in that unit, and the employer now has a duty to bargain with the union in good faith. When employees are trying to “unionise the workplace”, it means they are trying to garner enough support to be certified in this way. It is not unknown for employers to try to prevent the union from gaining that support, for example by firing the employees who are trying to organize the workplace, as you have mentioned. Colloquially, the employer is said to be trying to bust the union. I’m not familiar with US laws, but in several Canadian jurisdictions, the labour codes provide that if the union can show a persistent pattern of attempts to union-busting, such as firing employees who are organizing, the labour board can issue a certification order without the union showing that it has the support of a majority of the workers. The theory is that the employer who is union-busting may be successful in intimidating the workers by such tactics, defeating their legal right to organize. The employer shouldn’t be able to benefit from illegal conduct, so the board can certify in spite of the union-busting. > [@OxyMoron](#): > > Firing an empoyee under these circumstances is almost certainly pretextual and illegal, but it puts the employee in the position of having to prove that lots of other employees were tardy, or had similar minor black marks on their record, without getting fired. Obtaining those records usually is not easy or cheap. So the employer wins by exhaustion, unless the employee has some serious resources (such as a union or the NLRB) to back him up. The moral is that unions have to be extremely careful about the people they recruit as organizers. That’s why some Canadian jurisdictions have reversed the onus of proof: if a worker is engaged in union activities and the employer fires that worker, the onus is on the employer to prove, to the satisfaction of the board, that the only reason for the firing was something unconnected to the union activities. If the employer can’t prove that case, it’s found to have committed an unfair labour practice and can be required to re-hire the worker. > [@Q.E.D.](#): > > I dunno about that, Whack. I’m no expert, admittedly, but I used to manage a Radio Shack store, and I know for a fact that on several occasions, employees were terminated when they attempted to organize a union. I don’t believe that was the reason given for the terminations, however. AFAIK, it was generally for issues (real or imagined) related to job performance - i.e., for failing to maintain minimum sales standards, for example. When I was in law school, it sometimes seemed that every other case in our labour case book involved Radio Shack. One of the profs joked that eventually he would be able to write an entire text book on labour law and only cite Radio Shack cases. > [@PastAllReason](#): > > By section 68 of the Labour Relations Code, in BC there is (or was - can’t check current statutes at home) a ban on the use of replacement workers, whether paid or not. Here’s section 68(1): > [@](#): > > _ **Replacement workers** _ > > **68** (1) During a lockout or strike authorized by this Code an employer must not use the services of a person, whether paid or not, > > (a) who is hired or engaged after the earlier of the date on which the notice to commence collective bargaining is given and the date on which bargaining begins, > > (b) who ordinarily works at another of the employer’s places of operations, > > (c) who is transferred to a place of operations in respect of which the strike or lockout is taking place, if he or she was transferred after the earlier of the date on which the notice to commence bargaining is given and the date on which bargaining begins, or > > (d) who is employed, engaged or supplied to the employer by another person, > > to perform > (e) the work of an employee in the bargaining unit that is on strike or locked out, or > > (f) the work ordinarily done by a person who is performing the work of an employee in the bargaining unit that is on strike or locked out. I believe that Quebec has a similar provision. (psssst - **PastAllReason** - Most Canadian statutes are available for free at the [CanLII](http://www.canlii.org/) site - no subscription required.) ---
**Author:** ![groman](https://avatars.discourse-cdn.com/v4/letter/g/73ab20/32.png) [@groman](https://boards.straightdope.com/u/groman)\ **Post date:** [August 10, 2005, 6:09am UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/24 "2005-08-10T06:09:09Z")
A slight hijack, but I was always wondering how unions could possibly be kosher with antitrust legislation. Isn’t a union using it’s span and influence to unfairly control competition within the employment sector? Is it not in effect a labor cartel, and thereby illegal? Is there an exeption for employment as not being a real market? I generally come under fire for saying that unions are unethical, but it always bothered me that they do not at least get broken up by the courts when there’s no competing union (and there rarely is one) in the same field. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [August 10, 2005, 11:55am UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/25 "2005-08-10T11:55:00Z")
> [@groman](#): > > Well, I honestly don’t know \*\* about specific union laws around the world, \*\* but I think it’d be kind of gross(yes, that’s a legal term 🙂 ) if it was illegal to fire all of them… Then, french law is gross. You can’t fire them. Actually you can’t fire anybody without a justified cause, and since striking is a right, it’s not a valid cause for firing a worker. ---
**Author:** ![groman](https://avatars.discourse-cdn.com/v4/letter/g/73ab20/32.png) [@groman](https://boards.straightdope.com/u/groman)\ **Post date:** [August 10, 2005, 12:04pm UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/26 "2005-08-10T12:04:21Z")
> [@clairobscur](#): > > Then, french law is gross. You can’t fire them. Actually you can’t fire anybody without a justified cause, and since striking is a right, it’s not a valid cause for firing a worker. How is striking defined as a right under French law? Is it a right NOT TO WORK if nobody else feels like working for the same reason as well? Or is it a right to assemble instead of work to negotiate better terms of employment? What system is in place to prevent people from just saying they’re on strike and going to the pub 5 days a week and still getting paid for it/not getting fired? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 10, 2005, 2:34pm UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/27 "2005-08-10T14:34:15Z")
> [@groman](#): > > A slight hijack, but I was always wondering how unions could possibly be kosher with antitrust legislation. Isn’t a union using it’s span and influence to unfairly control competition within the employment sector? Is it not in effect a labor cartel, and thereby illegal? Is there an exeption for employment as not being a real market? The right to organize and to form a union are legal rights. If a union is successful in getting a majority of the workers in a workplace to sign up and is certified by the government board as the bargaining agent, it is by definition acting legally. It would defeat the purpose of those legal rights to say in one law that workers have them, but in another that any workers who exercise them is in breach of anti-trust legislation. Again, I’m not familiar with the details of US labour laws, but most Canadian labour laws spell this point out. See section 69 of the BC Code: > [@](#): > > \*\*_Other acts not actionable_ > > 69\*\* An act done by 2 or more persons acting by agreement or combination, if done in contemplation or furtherance of a labour dispute, is not actionable unless it would be wrongful without an agreement or combination. Another reason to take this approach is that it’s not legally correct to equate workers to corporations. They’re not the same. For one thing, workers have the constitutional right to associate (in the US, recognized via the First Amendment), and when they associate in order to organize, that activity also has constitutional protections. By contrast, there’s no constitutional right to try to corner the market or cut prices to drive out the competing companies, which may trigger anti-trust legislation. > [@groman](#): > > I generally come under fire for saying that unions are unethical, but it always bothered me that they do not at least get broken up by the courts when there’s no competing union (and there rarely is one) in the same field. That’s because the laws provide for a different approach. Once a union is certified as the bargaining agent, the laws usually provide that the certification cannot be challenged for a set period, usually about three years. The idea is that the union should be given a fair chance to prove its worth to the members and to negotiate a collective agreeement, which sometimes can take several years. However, once that period elapses, the workers can, if they wish, organize to challenge the certification, either to choose a different union, or to de-certify (i.e. - go back to a non-union workplace). ---
**Author:** ![msmith537](https://avatars.discourse-cdn.com/v4/letter/m/d9b06d/32.png) [@msmith537](https://boards.straightdope.com/u/msmith537)\ **Post date:** [August 10, 2005, 4:19pm UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/28 "2005-08-10T16:19:21Z")
> [@Cliffy](#): > > You can’t fire someone for participating in their rights to bargain collectively. **Q.E.D.** , you’re lucky no one ever brough suit against you for firing them for engaging in legally protected activities. You can fire someone for not showing up to work, even if they do so as part of a collectively-organized strike, but it was very rare until Reagan did it to the air traffic controllers. It’s more common now, but it still causes public relations problems. > –Cliffy Actually under “employment at will” you can be terminated at any time for any reason. ---
**Author:** ![OxyMoron](https://avatars.discourse-cdn.com/v4/letter/o/e9a140/32.png) [@OxyMoron](https://boards.straightdope.com/u/OxyMoron)\ **Post date:** [August 10, 2005, 4:32pm UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/29 "2005-08-10T16:32:58Z")
> [@msmith537](#): > > Actually under “employment at will” you can be terminated at any time for any reason. A very dangerous statement unless accompanied by: “PROVIDED that the termination is not for any reason that is itself illegal,” which in some jurisdictions (such as mine, New York) means that the “exception” ends up swallowing the rule, and results in much litigation of the type we’re describing here. Similarly, in housing law, you can refuse to rent to someone for any reason or no reason…so long as it isn’t the right reason. ---
**Author:** ![Q.E.D](https://avatars.discourse-cdn.com/v4/letter/q/51bf81/32.png) [@Q.E.D](https://boards.straightdope.com/u/Q.E.D)\ **Post date:** [August 10, 2005, 4:33pm UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/30 "2005-08-10T16:33:21Z")
> [@msmith537](#): > > Actually under “employment at will” you can be terminated at any time for any reason. [False](http://www.smartagreements.com/bltopics/Bltopi57.html). There are some significant exceptions to the At Will laws in most, if not all, states, such as: > [@](#): > > A majority of the states have adopted the public policy exception to the employment at will rule. This exception is based on the theory that employees should not be fired for reasons that violate public policy. For example, an employee fired as retaliation for opposing an employer’s illegal activities, for reporting fire or other safety hazards or for other kinds of “whistle blowing activities” may be an illegal termination. ---
**Author:** ![OxyMoron](https://avatars.discourse-cdn.com/v4/letter/o/e9a140/32.png) [@OxyMoron](https://boards.straightdope.com/u/OxyMoron)\ **Post date:** [August 10, 2005, 4:37pm UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/31 "2005-08-10T16:37:03Z")
And that should read, “so long as it isn’t the _wrong_ reason.” E.g., racial or gender discrimination. Going back to the original point, however, **Whack-a-mole** has correctly cited the National Labor Relations Act, which in general bars terminations for union organizing. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [August 10, 2005, 4:47pm UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/32 "2005-08-10T16:47:42Z")
To answer the original question, which is governed by the NLRA (federal law), yes, striking workers can be replaced. We have a strike here in SF at about a dozen of the top hotels that’s been going on for over a year, but they’re still open. Whether workers have to be offered back their jobs if-and-when the strike ends is a matter of contract, usually as determined by an arbitrator. But, to paraphrase the Wicked Witch of the West, these things have to be done delicately or you ruin the spell. That’s what happened to the baseball owners in their last lock-out. (A lock-out is different from a strike, of course, but only very slightly for this purpose.) Problem wasn’t that they weren’t allowed to, but they hadn’t jumped through the right hoops in the right order, so the lock-out was declared an unfair labor practice. But, had the owners done it correctly, it would have been perfectly legal. Correctly, in both the strike and lock-out contexts, mainly meaning having bargained in good faith (very subjective) and offering terms to the new workers no better than those offered to the union. ---
**Author:** ![yojimbo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/yojimbo/32/232_2.png) [@yojimbo](https://boards.straightdope.com/u/yojimbo)\ **Post date:** [August 10, 2005, 5:02pm UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/33 "2005-08-10T17:02:30Z")
> [@Q.E.D.](#): > > [False](http://www.smartagreements.com/bltopics/Bltopi57.html). There are some significant exceptions to the At Will laws in most, if not all, states, such as: All the same I think I prefer the Eurocentric Irish way. A permanent employee can’t be just sacked. There has to be a procedure of warnings both verbal and written to be gone through. Valid reasons must be given. Unless you hit someone ot call someone a nigger etc. it’s very hard to sack someone over here. I know a few people who won unfair dismissal and constructive dismissal cases against their past employers. Some actually went back to work in the same place just to rub salt into a open wound(They always left soon after, usually after 2 months on sick pay\* 😃 ). Also if a strike is legal(i.e. a official strike vote was called and won by the union) the strikers can’t be sacked. Scabs can be brought in but that always ends up ugly. \*The min that a employer has to pay a permanent employee if certified sick. After 2 months the employee is paid disability by the state for as long as a doctor signs a medical cert. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [August 10, 2005, 5:28pm UTC](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357/34 "2005-08-10T17:28:48Z")
> [@msmith537](#): > > Actually under “employment at will” you can be terminated at any time for any reason. As others have pointed out, this is subject to the exception for illegal reasons. Firing someone for trying to organize workers isn’t kosher. But that’s not the end of the story, either. While organizing a union is protected activity, not doing your work or preventing other employees from doing theirs, isn’t. You can’t organize while you are on the clock. > [@Q.E.D.](#): > > In most states, particularly Employment At Will states (the majority of states, IIRC), they absolutely can fire them and replace them. In most cases they won’t, though, because it can present a bad public image, and it’s also expensive to train new people. Normally, management tries to fill in as best they can, or they’ll hire temporary help until the strike is resolved. NQR. If the Collective Bargaining Agreement (CBA) has not expired and there is a strike or lockout, the employer may only terminate employees for grounds spelled out in the CBA. If the CBA has expired, and proper notices have been given, federal labor law controls the hiring of replacement workers. Can you hire replacement workers? You bet. Here is a [story](http://toledoblade.com/apps/pbcs.dll/article?AID=/20050715/COLUMNIST17/507150329/-1/NEWS02) about the Detroit News/Free Press strike. The papers had replacement workers lined up for the anticipated strike and went back to publishing papers. When the unions finally made a unilateral offer to return to work, the papers would only hire them back as needed. They kept the replacement workers on. And federal antitrust laws don’t apply to labor unions because they are exempted by statute. [http://www.antitrustinstitute.org/links/exempt.cfm](http://www.antitrustinstitute.org/links/exempt.cfm) The extent of the exemption is kinda complicated. [Previous page](https://boards.straightdope.com/t/can-you-replace-striking-workers/316357.md?page=1)