Strike one, you're out:

...Unlike thousands of other Hispanic workers in the Southwest, the Phelps Dodge workers, through their unions, had achieved working conditions which enabled them to live decent lives and raise their families in some comfort...

...In other words, short of actions which a court rules are overt punishment for union activity, there are virtually no sanctions against an employer who uses this opportunity to rid a company of its unionized workforce...

...More than two thousand workers suddenly found that a legitimate strike had cost them their jobs and twelve months later, after a National Labor Relations Board (NLRB) election in which only the strikebreakers could vote, it also cost them their unions-permanently...

...Although the right to strike is not listed in the Bill of Rights, it cannot be denied that the right to withhold one's labor is as essential in a democratic society as the rights we celebrate in the first ten amendments to our Constitution...

...It caused them not only to risk losing their jobs, but to go through a complex process if they wished reinstatement...

...and (2) the Court further found that Mackay had committed an unfair labor practice by discriminating against the union activists...

...The exploitation of the Mackay decision by employers also has implications for the future of collective bargaining...

...Tell me, what is the difference...

...For more than forty years, American management generally ignored the implications of the Mackay decision...

...Permanently replacing strikers upsets the entire balance between the bargainers...

...After several days, many of the strikers conceded defeat and asked to return to work...

...The weakening of the right to strike for workers has implications for all of us, and indeed for democracy itself...

...What has happened to industrial relations in the United States...

...It was an original intent of the Wagner Act that the NLRB be the national labor arbiter...

...But, for economic strikers in the 1980s who wished to return to work, Mackay had a devastating effect...

...The ruling is known as National Labor Relations Board v. Mackay Radio and Telegraph Company (304 US 333...

...STRIKE ONE, YOU'RE OUT THE COURT BENCHES LABOR GEORGE G. HIGGINS In early 1983, the twenty-four hundred workers-mostly Hispanic-who worked in the mines and smelters of the Phelps Dodge Company in Clifton, Douglas, Ajo, and Morenci in Arizona had some reason to feel that they had won a small share of the American Dream...

...But the dam broke in 1981, partly under the impact of President Reagan's firing of twelve thousand air traffic controllers, which was reinforced by the generally anti-union atmosphere spawned by the Reagan administration...

...In your country you are permanently replaced...

...The Mackay case centered on the fate of permanent replacement workers following a major strike at Mackay Radio and Telegraph Company...

...A key provision in the Wagner Act granted workers the statutory right to strike...

...Mackay ensures the continued feeling among workers of no job security, the weakening of labor influence at the bargaining table, and the real potential loss of jobs when workers choose to exercise their right to strike as provided by the Wagner Act...

...It is evident that during the 1980s, under the pressure of industrial managers determined to defeat their unions, that national respect for the right to strike suffered a severe erosion...

...But for several decades after the passage of the Wagner Act, the average consumer was not willing to allow inconvenience to change his commitment to the worker's right to strike...

...Firing strikers in most European countries is either banned outright, or is a practice which does not exist...

...Have we changed our laws to permit industrial leaders like Frank Lorenzo to destroy the job conditions and working standards won by his workers...

...They deserve our support...

...When collective bargaining reaches an impasse- which it does very seldom-workers' only resort is to strike...

...America is virtually the only industrialized country, along with South Africa, that per-mits this abuse of workers...

...As workers face these realities, the courts have continued to strengthen management's position with decisions allowing businesses to go on the offensive when strike activity is suspected, and to weaken the original intent of the Wagner Act...

...In 1986, the Bureau of National Affairs, a Washington-based research organization, found that three-quarters of the 181 unionized employers it polled would consider using permanent replacements for strikers...

...After a union appeal to the NLRB on the grounds that the four were denied reinstatement because of their support for the union, the NLRB ordered Mackay to reinstate the workers with back pay...

...Almost immediately it became apparent why Phelps Dodge had been so unyielding during the negotiations...

...In short, instead of negotiations between two equals, the collective bargaining process becomes a weapon which the employer may manipulate to his own ends, including destroying collective bargaining and the union itself...

...The basic purpose of collective bargaining is not to create big winners or big losers...

...Most of us in the religious community would endorse an effort to preserve the right to strike, free of fear, in the knowledge that it is important not only for workers but for the community as a whole.the community as a whole...

...Court of Appeals, and even the Supreme Court becoming involved in this and parallel cases...

...There has been no serious argument in recent years that an employer does not have a right "to protect and continue his business" during a strike, although the use of replacement workers clearly undermines the economic pressure which striking workers seek to impose on management...

...Employers know the result of hiring permanent replacement workers, and most who do so are not motivated solely by the need to keep their businesses operating, but by a desire to get rid of the union and its collective bargaining rights along with the union workforce...

...The right to strike-without fear of reprisal-was too deeply ingrained in our national ethic, and few employers dared to override it...

...has remarked, "In recent years as employers have not hesitated to give away the jobs of striking workers, repeatedly, we have seen communities torn apart as replacements move in to take the jobs of the existing workforce...

...In one of its most confusing decisions, the Court unanimously held that: (1) the strikers did remain employees under the Wagner Act and were entitled to strike over economic matters and thus were entitled to their jobs when they returned to work after the strike was settled...

...Most of them were longtime members of the United Steelworkers or one of twelve other unions, and over the years they had won a living wage and a measure of security on the job at Phelps Dodge...

...Once the worker has submitted an application to resume his or her old job, management must offer a position "which is equivalent or substantially equivalent" to his or her former job, unless her or she has been permanently replaced, or unless there are legitimate business reasons not to do so...

...Today the labor movement has begun a major campaign to recapture the right of workers to withhold their labor without penalty...

...Therefore, most state laws can only restrict the way in which employers may locate and hire replacement workers...

...Since permanent replacements for economic strikers become eligible to vote in an NLRB election after one year (while economic strikers lose that right after the same period of time), an employer need only operate with replacement workers for twelve months before a decertification election can be held...

...in 1989, asked: "In my country when we strike we are fired...

...Phelps Dodge management, demanding severe concessions in negotiations for a new contract, refused to budge, and the workers felt they had no recourse except to go on strike...

...normally likes to be compared...

...It is ironic that the air traffic controllers, as public employees, are not covered by the Mackay decision...

...The company quickly recruited permanent replacements for the strikers from the reservoir of unemployed Hispanic workers in the Southwest and, with the help of the Arizona National Guard, resumed full production...

...Today, strikers must first make an unconditional offer to return to work...

...GEORGE G. HIGGINS, adjunct lecturer in theology at Catholic University, was for years director of the social action department for the U.S...

...While a patchwork of state and local laws limiting the right of employers to hire permanent replacement workers exists, they are more likely to hinder the hiring of such replacements than they are to prevent such hiring entirely...

...But then, in a footnote-which has all the force of law-the Court also ruled that employers had the right to try to keep their businesses going during a strike...

...Before the enactment of the National Labor Relations Act (NLRA) in 1935, the right to strike was uncertain, with courts ruling that striking workers retained only some (and frequently none) of their employee rights...

...If we had any doubts about the importance of the right to strike in a democratic society, the experience of Poland during the past decade should be a useful lesson...

...As Congressman William L. Clay (D-Mo...

...During the collective bargaining process itself, workers who fear that they may be replaced if they strike are not likely to bargain very forcefully or effectively...

...And the strike itself becomes an almost useless weapon if workers are immediately replaced...

...Six months later the dream turned into a nightmare...

...The mere threat to replace strikers gives the employer an advantage in the collective bargaining process...

...As David Silberman, associate general counsel for the AFL-CIO, has observed, "It means, as a practical matter, when workers have to decide whether to strike, the downside risk is not just that they're going to lose the strike but that they're going to lose their jobs...

...If their only recourse was to hire permanent replacements for the strikers, that was their right, too-thus negating the strikers' claim on their jobs when the strike ended...

...Mackay maintained that the replacement workers had first priority to keep their jobs...

...Once such a hiring has taken place, federal regulations-with all of their loopholes-preempt most state and local laws...

...When settlement is achieved-again, presumably without any big winners or losers-the workers are entitled to retain their jobs...

...Furthermore, under the doctrine of "preemption," local labor relations laws yield to the national laws...

...The members of Solidarity would be the first to testify that their nation could still be under an authoritarian government but for the willingness of Solidarity union members to put down their tools and leave their factories...

...Bills have been introduced in both House and Senate to overturn the unintended result of the Mackay case, and it appears that despite the probable opposition of the Bush administration and some elements of business, there will be considerable support in Congress...

...and at Eastern Airlines, nine thousand machinists lost their jobs forever when they tried to resist the efforts of Frank Lorenzo, the airline's chairman, to force their conditions down to nonunion levels...

...In Tennessee, thirteen hundred workers on strike at Magic Chef lost their jobs permanently...

...The workers at Phelps Dodge have not been the only victims of this tactic...

...For the consumer, strikes can be a serious inconvenience, especially, for example, in the transportation industry (although the law gives the president power to suspend a strike in cases of real emergency...

...at three plants of the International Paper Company, the same fate befell twenty-three hundred members of the United Paperworkers Union...

...MSGR...

...To answer these questions, it is necessary to start with a look at the nation's first comprehensive labor law, the National Labor Relations Act (also known as the Wagner Act), passed more than fifty years ago...

...Only in South Africa do workers face the prospect of losing their jobs permanently when they go on strike- and South Africa is not a country with which the U.S...

...The theoretical justification of the strike is to put equal pressure both on the workers-who are without income-and on the company-which is without production...

...A South African labor leader, after a visit to the U.S...

...Ultimately, Mackay reinstated the strikers, with the exception of four, whom the company perceived as union leaders...

...The unions are also reaching out to their traditional allies-such as religious, civil rights, and community groups-to help them in their battle...

...bishops' conference...

...it is a time-tested and supremely democratic way of settling differences between employer and employees through compromise...

...Although the Wagner Act guaranteed the right of workers to strike for better wages or because of unfair labor practices, the United States Supreme Court, just three years later, handed down a ruling which, years later, had a near fatal impact on the right to strike...

...What are the consequences for collective bargaining, for the right to strike, and for the labor movement as a whole...

...Finally, the Supreme Court took up the Mackay case directly...

...The tide rose throughout the decade of the 1980s, reaching the point where workers and union leaders now have to think twice about using their right to strike, even in the face of the most intransigent management bargaining tactics...

...A ping-pong series of appeals, reversals, and new hearings followed, with the NLRB, the U.S...