Worker Rights, Strikes, and Labor Law in the United States

The Right to Strike Under the NLRA

The National Labor Relations Act ensures workers' right to strike, most explicitly in Sections 7 and 13. Section 13 states: "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right" (National Labor Relations Board, n.d.). However, there are limitations on that right. Not all collective bargaining agreements between labor unions and management include provisions protecting the right to strike, and this is especially true for industries providing essential services. Strikes are legal when workers affirm a clear purpose for striking — in other words, strikes cannot be arbitrary. The timing of a strike must also be relevant and as non-disruptive as possible. Workers should absolutely retain the right to strike, and that right should not be arbitrarily inhibited. Nevertheless, labor unions are strongly advised to negotiate contracts that clearly delineate the conditions under which strikes may occur and ensure that all strikes are judicious and in accordance with NLRB principles.

The NLRB outlines two main categories of strikes: economic strikes and unfair labor practice strikes. In both cases, the labor union should be able to specifically detail the unfair practices or wage disputes at issue. According to the NLRB, economic strikers have far fewer rights and less leeway than unfair labor practice strikers. Unfair labor practice strikers cannot be replaced by permanent workers, and employees are entitled to get their jobs back after the strike ends. With economic strikes, however, the employer may hire permanent replacement workers, and striking employees are not automatically entitled to reinstatement (National Labor Relations Board, n.d.). It is understandable that these limitations are placed on labor unions in order to prevent unnecessary work stoppages and to balance the needs of workers with corporate interests.

Mandatory Arbitration in Labor Disputes

Mandatory arbitration for resolving contract disputes or as the final step in negotiating collective bargaining agreements has become commonplace in public sector jobs in most states ("Using Arbitration to Resolve Legal Disputes," n.d.). Arbitration has been praised for its efficiency and cost-effectiveness, which is why mandatory (binding) arbitration is used most often in public sector and essential service contexts. Using arbitration prevents the unnecessary accumulation of legal fees, avoids using the courts to settle contract disputes, and encourages swift and potentially impartial resolutions. Yet because it severely restricts the options available to labor unions after a decision is rendered, binding arbitration is noticeably skewed toward the interests of management (Reed, n.d.). Therefore, binding arbitration should be carefully constructed whenever it is included in labor contracts.

There are also potential problems with the processes used to identify viable third-party arbitrators. Bias or conflicts of interest are possible, which could inhibit worker rights overall. However, both sides of a labor dispute typically nominate arbitrators, and a consensus must be reached in order to minimize bias (Reed, n.d.). The arbitration process typically lasts only a few hours, which is beneficial in that it promotes rapid conflict resolution. However, it may also be hastily conducted, potentially undermining some parties' ability to make a thorough case (Reed, n.d.).

Arbitration is also by definition confidential — the proceedings are not part of the public record. This is generally favorable to management but could equally benefit a labor union suffering from a public relations problem. Although a labor union can use its own media relations campaigns to publicize its grievances, the privacy afforded to arbitration proceedings may still favor management. Ideally, arbitration would be preceded by a period of mediation to enable ongoing negotiations; however, in the interest of speed, mediation is usually skipped entirely.

Modernizing Labor and Management Relations

Changing the current state of labor and management relations could create confusion and inefficiency. However, the system has become overly adversarial and less productive than it could be (Eastlund, n.d.). Moreover, the system evolved in a pre-information economy in which career paths were more clearly defined and the global labor market was less fluid than it is today. Therefore, the current state of labor and management relations should be updated to reflect the realities of the contemporary labor market and emerging job sectors.

The "demise of the traditional American labor model were sown from within," due to an inability to recognize or respond to change and a failure to acknowledge "mutual responsibility for creating and distributing wealth" (Schneider & Stepp, 1998, p. 1). The workplace of the 21st century is vastly different from what it was even a few decades ago. Even in the manufacturing sector, the public sector, and other areas in which a bureaucratic corporate culture prevails, workers expect greater self-determination, empowerment, quality of life, and opportunities for growth and development.

In the private sector, company cultures have changed to respond to the evolving needs of workers. Human resources and organizational psychology research has generally pointed to the quantitative benefits for companies that build worker satisfaction into their policies (Fossum, 2012). Worker retention, employee development, and work-life balance are among the factors now being incorporated into organizational policies, and in many cases these efforts have reduced or eliminated the need for labor unions.

The public sector has been slower to respond to change. Labor unions remain not only viable but essential for protecting worker rights in many sectors. Changing the system should entail more robust legal and political supports for worker rights, along with a meaningful shift in the discourse surrounding labor rights.

References

Eastlund, H. (n.d.). Labor-management relations. PA Times. Retrieved from http://patimes.org/labor-management-relations-return-collaboration/

Fossum, J. (2012). Labor Relations (12th ed.). Kindle Version.

National Labor Relations Board. (n.d.). The right to strike. Retrieved from https://www.nlrb.gov/strikes

Pope, J. G., Bruno, E., & Kellman, P. (2017). The right to strike. Boston Review. Retrieved from http://bostonreview.net/forum/james-gray-pope-ed-bruno-peter-kellman-right-strike

Reed, J. (n.d.). Arbitration in labor disputes. Retrieved from https://www.calpelra.org/pdf/Reed,%20Jeff.pdf

Schneider, T. J., & Stepp, J. P. (1998). The evolution of U.S. labor-management relations. Retrieved from

Using arbitration to resolve legal disputes. (n.d.). Find Law. Retrieved from http://adr.findlaw.com/arbitration/using-arbitration-to-resolve-legal-disputes.html