Returning to Work with an Inside Campaign
Editor’s Note: The following is an excerpt from Strikes, Picketing, and Inside Campaigns: A Legal Guide for Unions. It describes the “Trojan Horse” approach to saving a strike once an employer begins to hire scabs as permanent replacements.
The author offers this word of caution: “Applying the Trojan Horse method in a timely fashion can prevent a bad situation from becoming worse. If, however, the employer has already hired a large number of permanent replacements, an all-or-none offer may be a better choice.”
When an employer begins to hire permanent replacements, the union must carefully evaluate its position. If the numbers of replacements are small, the union may be able to shrug off the hiring as a scare tactic. But if the employer appears intent on replacing a sizable portion of the bargaining unit, the strike, and indeed the union’s future, may be in jeopardy. Three options are:
• Continue the strike, extend it wherever possible
• Accept the employer’s final contract offer
• Offer to return to work without a contract
The first choice is high risk. With replacements on board, the employer may refuse to settle without dismantling the seniority and union security systems. Or it may withdraw recognition or file for a decertification election.
The second option, signing on the employer’s terms, may be politically unthinkable, especially if the employer is asking for concessions that decimate longstanding rights and benefits. What about that third idea?
TROJAN HORSE
Other than accepting the employer’s contract proposals, the only sure way to defeat a permanent replacement strategy is to submit an unconditional offer to return to work. It is illegal to hire replacements or to award permanent status to temporaries after the offer is received.
There are only two lawful responses to a union return-to-work offer: acceptance or lock out. Any other response starts the back-pay clock for each striker entitled to reinstatement.
The Laidlaw List
The following rules apply to the operation of a Laidlaw list:
• The employer must bargain with the union over how it fills vacancies from the list. The usual method is by departmental or plant seniority, but a different method can be imposed if the employer bargains to impasse. The method may not be a subterfuge for discrimination against union activists.
• The employer must offer new or vacant positions to employees on the list before offering them to other employees or hiring from the outside. But the employer does not have to offer a position that is different from the employee’s pre-strike job; even if its duties are within the employee’s qualifications or experience.
• If the employer offers a former striker a position that is significantly different from his pre-strike job, the striker can decline without jeopardizing his right to stay on the Laidlaw list. If the striker accepts, the employer must offer him a transfer if his pre-strike position or its equivalent opens up in the future.
• The employer must maintain the Laidlaw list until it has offered all former strikers equivalent employment. The union should file ULP charges if the employer violates a Laidlaw-list rule, hires workers from temporary job agencies, assigns supervisors to perform bargaining unit work, or unnecessarily combines jobs.
If the employer accepts the offer, it must set a prompt reporting date for strikers whose positions are vacant or filled by temporaries. In an Unfair Labor Practice (ULP) strike, it must also displace permanent replacements but this almost always requires NLRB intervention.
Back on the job, the union can mount a “Trojan Horse” campaign. Employees can wear union insignia, hold rallies, picket before and after shifts, urge customers to boycott, and engage in lawful work-to-rule activities. Within limits, the union can try to make life unpleasant for any replacements that are still working.
If the employer initiates a lockout, either immediately or as a reaction to the union’s inside activities, the employer will face several problems:
• It will not be able to hire additional permanent replacements.
• 34 states and Puerto Rico pay unemployment benefits when workers are locked out.
• If the employer has committed ULPs—such as making unilateral changes, insisting on non-mandatory bargaining subjects, or refusing to supply the union with relevant information—the NLRB can declare the lockout illegal and order the employer to reinstate workers with back wages.
DRAWING UP THE OFFER
To bind an employer, a return-to-work offer must not include any conditions or qualifications. An offer to return under “our former terms of employment” is conditional. So is a demand that the employer rectify a ULP or reverse a discharge.
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A union does not have to cease its strike activities while it awaits the employer’s response to an offer to return. Nonetheless, to prevent a claim that the offer is bogus, it makes sense to stop picketing for a few days. If the employer rejects the offer, fails to reinstate strikers for whom openings exist, or declares a lockout, the union can resume picketing.
An employer that accepts a union return-to-work offer must put employees back to work immediately. Delay requires substantial justification, such as a lack of raw materials. The employer may not insist that the union withdraw NLRB charges or sign a return-to-work agreement. Nor may it order strikers to fill out employment applications or submit to interviews.
BACK TO WORK
The employer must assign returning strikers to their pre-strike positions or jobs that are equivalent in terms of salary and duties—if these positions are vacant or occupied by temporary replacements. ULP strikers are entitled to displace permanent replacements.
A striker whose position is not available must be placed on a preferential recall (“Laidlaw”) list (see box).
A striker whose position has been eliminated for legitimate business reasons, such as a reorganization of the work, and for whom no equivalent vacancy exists, must also be placed on the list.
The employer can deny reinstatement to a striker who has:
• Taken equivalent employment elsewhere with intent to leave permanently (not self-employment)
• Resigned or retired (but a resignation solely to obtain vacation or 401K monies does not forfeit job rights)
• Committed serious misconduct
When strikers return to work under an unconditional offer, the employer must resume the wages, benefits, and privileges in the expired collective bargaining agreement, except for changes that the employer has lawfully imposed after a bargaining impasse.
Employees may not be forbidden from discussing union matters, distributing union literature, or taking part in lawful protest activities. The employer may not discriminate against or harass the former strikers.
CHALLENGING PERMANENT REPLACEMENT
The union can challenge the retention of replacement workers by filing ULP charges on the following grounds:
All-or-None Example
Local 30’s 125 members struck Trixie Foods on June 1. Over the next two months, Trixie hired 100 permanent replacements. On August 10, the union submitted an unconditional return-to-work offer. The employer responded by notifying the union that the 25 vacancies would be assigned to the most senior employees and the remaining 100 strikers would be put on a Laidlaw list.
The union filed a ULP charge contending that because the walkout was a ULP strike, all 125 strikers should have been offered reinstatement. The 25 senior workers refused to come back and the 100 employees on the Laidlaw list filed for unemployment benefits.
• The strike was a ULP strike. As explained above, ULP strikers have an absolute right to return to their original positions, even if this requires the dismissal of workers hired on a permanent basis.
• The replacements were not hired on a permanent basis. To qualify a replacement as permanent, the employer and the replacement must have had an understanding, either at the time of hire or later, that the job would continue beyond the strike.
Testimony that the employer offered jobs “as long as the strike continues” undercuts the employer’s case, as do applications describing employment as “at will.” The fact that a strikebreaker is still on probation does not rule out a claim of permanency.
ALL-OR-NONE
Another option unions have is making an “all-or-none” offer (see box). Such offers, which can be phrased the same as a Trojan Horse offer, are contingent on the union having grounds for asserting the strike’s ULP status.
An all-or-none offer is not submitted with the intention of calling off the strike. Instead, its purpose is (1) to create the basis for an NLRB order reinstating employees with back pay and (2) to qualify strikers for unemployment insurance. Within a few days, the union will declare that it is being locked out and resume picketing.
Before making an all-return offer, the union should instruct members that anyone offered a job should decline on solidarity grounds. The union can provide a form letter explaining that the worker will return only if the employer fulfils its legal obligation to reinstate all of the ULP strikers.
Those who refuse will not be eligible for unemployment benefits or back pay, but will retain their rights to reinstatement if the NLRB finds that the walkout was a ULP strike.
Yes