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Nonstriking employees given job preference.

Nonstriking employees given job preference

In a defeat for organized labor, the Supreme Court ruled that employers have the right to give job preference to union-represented employees who either do not participate in a strike or return to work before the strike ends. This means that these employees may have job precedence over longer seniority employees who stay out the entire strike period.

The case was initiated by the Independent Federation of Flight Attendants on behalf of its members who did not regain their jobs after an unsuccessful 1986 strike against Trans World Airlines (TWA). To maintain operations, TWA hired 2,350 replacement workers and used 1,300 members of the union who did not strike or who returned to work after the stoppage started. At the end of the 72-day stoppage, TWA refused to give the "full-term" strikers job preference, and some were never rehired. More than 1,100 of them were eventually rehired, retaining their seniority, but only as job openings occurred through turnover among the union-represented and nonunion employees on the payroll at the end of the stoppage. (In earlier decisions, the Supreme Court had held that employers can hire nonunion replacement workers and promise them permanent jobs.)

In the current case, Justice Sandra Day O'Connor wrote for the six-member majority, "We see no reason why those employees who chose not to gamble on the success of the strike should suffer the consequences when the gamble proves unsuccessful."

Justice William J. Brennan, Jr., joined by Justice Thurgood Marshall, said that the majority, by ruling in favor of employees who cross picket lines, had engaged in an "inarticulated hostility toward strikes." Justice Harry A. Blackmun, in a separate dissent, said the majority went too far in siding with employers.

Attorneys on both sides of the case generally claimed that the decision, which hinged on interpretation of the Railway Labor Act (which regulates collective bargaining in the railroad and airline transportation industries), would also bear on bargaining in other private industries covered by the National Labor Relations Act.
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Title Annotation:Developments in Industrial Relations; Supreme Court rules employers have right to give job preference to union-represented employees who do not participate in strikes, or return to work before strike ends
Author:Ruben, George
Publication:Monthly Labor Review
Date:May 1, 1989
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