Strikes
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Strike is not weapon it used to be
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Many unions have decided to try other tactics to deal with
disputes
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Majority of strikes are over negotiation of CBA
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Strikes currently occur in <5 percent of negotiations
Average duration runs 15-20 days
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E.g., “corporate campaign”
Longest strike beginning in 2009 was 27 days, involved Bell
Helicopter Textron and UAW
Minority are relatively short strikes during term of CBA
Historical trends
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Positively correlated with business cycle, negatively w/
real wage growth
Major U.S. Strikes, 1950-2009
(involving 1,000+ ees)
14 in 2003
17 in 2004
22 in 2005
20 in 2006
21 in 2007
15 in 2008
5 in 2009
(2 private sector,
3 public)
2
Management Response to Strike
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Shut down operations
Continue operations
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Use supervisors and other non-production Ees
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Hire replacements
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Feasible where firm not labor-intensive, maintenance
demands low
Puts strikers’ jobs in jeopardy, therefore high potential
for conflict
Contract-out work
Legal Environment
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Er Conduct
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Legal for Er to
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Advise Ees of their legal right to refrain from striking
State that work is available
Put into effect most recent offer to U
Illegal for Er to
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Refuse to bargain during strike
Promise strikers (or replacements) better terms than
had been offered at bargaining table
Tell strikers they will be discharged if they fail to
return
Legal Environment
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Er Conduct
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In economic strike (one over mandatory subject
of bargaining), Er may hire “permanent” strike
replacements
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Mngt may replace strikers, not terminate
Once strikers replaced, they are entitled to
reinstatement as job openings occur

No legal obligation to discharge replacements to recall
strikers, but may do so (and U will likely request this in
bargaining)
Legal Environment
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Er Conduct
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In ULP strike (one caused by or prolonged by
mngt ULPs, typically 8a5), strikers entitled to
reinstatement even if replacements have been
hired
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Note therefore common for refusal to bargain charges
to be filed during negotiations
Economic strike may be “converted” to ULP strike
upon Board finding of ULP
Er therefore bears some risk when retaining
replacements in that if ULP found (down the road),
strikers may be owed back pay
Labor Law Discussion Case 7
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Did the company’s plan to replace striking
Ees by inverse seniority violate the NLRA?
Was the strike a ULP strike?
Were the strikers entitled to reinstatement as
of 7/25?
Why is it important whether the cost-saving
rationale was offered to the U 6/27?
Ethics in Action: Strike Replacements
or Scabs?
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Is it ethical for a company to use permanent
strike replacements? Temporary?
Is it ethical for individuals to cross picket
lines?
Is it ethical for unions to attack strike
replacements as “scabs” and try to prevent
them from crossing picket lines?
Legal Environment
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Picketing
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Strikers found guilty of picket line misconduct not entitled
to reinstatement
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“Sympathy” striker (non-member of striking bargaining
unit, e.g., Teamster driver during UFCW strike) is
engaged in protected activity and cannot be terminated
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May be (permanently) replaced
Unlawful for U to establish secondary picket line against
secondary Er
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Standard used by Board is where (mis)conduct “reasonably tends
to coerce or intimidate”
However, “allied” Er (one doing struck work) can be picketed
Mass picketing unlawful
U may not force Er to impasse over permissive subjects of
bargaining
Table 8.1: Types of Strikes
11
Lockouts
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Whether a work stoppage is a strike or
a lockout determines the legal use of replacement
workers
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Lockouts are initiated by the employer
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A defensive lockout occurs when workers
are locked out to prevent employer losses
An offensive lockout occurs when an employer locks the
doors to put pressure on the union
Lockouts are commonly used to control the
timing of the work stoppage

Contract between NBA and National Basketball Referees
Association expired 9/1/09, league locked out referees and
used replacements during exhibition games
Lockouts
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Lockouts are legal as long as they protect or
support the employer’s bargaining position
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Lockouts are illegal if they appear to be an
attempt to destroy the union
Using temporary replacements during
lockouts is legal
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Hiring permanent replacements is illegal
Changing Union Tactics
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Diminished value of strikes
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Org labor claims mngt increasingly attempting to
(1) force strike, (2) replace strikers, (3) prolong
strike to set up decert election
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Strikers eligible to vote in any election for up to 12
months from beginning of strike
Changing Union Tactics
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Alternative strategies
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Influencing public opinion
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Who’s the “villian,” who’s the underdog?
Exerting economic pressure
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Consumer and supplier boycotts
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U must avoid illegal secondary boycotts, but “publicity
picketing” allowable
U pressure on banks
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Handbilling found to be lawful under NLRA, absent any
“coercive” conduct such as picketing
Threats to withdraw funds (U limited in its ability to force
withdrawal of pension funds, given fiduciary responsibility
of fund trustees)
Changing Union Tactics
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Alternative strategies
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Political pressure
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Complaints to regulatory agencies (esp OSHA)
Corporate pressure
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Appeals to corporate parent, directors, shareholders
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See Corporate Campaign, Inc.
“Workplace strategies”
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Ees pressure Er from within
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Loading grievance machinery
“Work to rule”
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Slowdowns, however, unprotected concerted activity (same
for ‘partial strike’ such as refusal to work overtime)
Mediation
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Most widely used, most informal type of third-party
intervention
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Neutral third-party helps negotiators to reach
voluntary settlement
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Voluntary under NLRA, mandatory under RLA
No power to impose settlement – facilitator
Characteristics of mediator
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Must be acceptable to parties, experience helps
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How to get experience so as to be acceptable?
Sources of impasse
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Most likely to help when procedural breakdowns, less
likely when “negative contract zone”
Factfinding and Arbitration
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More formal intervention
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In private sector, largely limited to national emergency
disputes under Taft-Hartley
In public sector, often used (imposed by law) when strikes
prohibited (esp for police and firefighters)
Terminology
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Interest arbitration
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Voluntary arbitration (parties agree)
Compulsory arbitration (law mandates)
Conventional arbitration (split the difference?)
Final-offer arbitration (package or by issue)
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Should result in less “chilling effect”
WSJ editorialized in favor of amending RLA to include best-offer
arbitration (8/24/05)
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But editorialized in opposition to interest arbitration in
Employee Free Choice Act (5/28/09)
Rights (grievance) arbitration
Factfinding and Arbitration
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Selection of Interest Arbitrators
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Ers tend to prefers arbs w/ training in economics
Unions tend to prefer arbs w/ legal training, dislike
economists
Factfinding’s effectiveness has declined in public
sector, led to more use of arbitration
Factfinding survives in Taft-Hartley procedures (in
part because parties oppose compulsory arbitration)
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Under T-H, fact-finding board investigates and reports,
but does not make recommendations
After report, President can ask federal court to enjoin
strike or lockout (for up to 80 days) if court finds dispute
meets national emergency criteria
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Most recently, West Coast dockworkers strike in 2002
Reflection Question 4
Assume that the Indiana legislature is writing a
comprehensive bargaining law (to replace the
current law covering only teachers) and you
have been asked to design the law’s impasse
resolution procedures.
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Outline a detailed plan
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Do you allow strikes?
Do you require any types of third-party impasse
resolution procedures?
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See Indiana Education Employment Relations Board