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Replacement workers.

Replacement workers

An employer must "bargain collectively," or negotiate, with its employees' union, once the union is recognized as the employees' exclusive bargaining representative.1 In general, the employer may not be relieved of this obligation by withdrawing recognition of the union, unless it can show either that the union is not supported by a majority of bargaining unit employees or that the employer has a good-faith doubt about the union's continued majority status. In NLRB v. Curtin Matheson Scientific, Inc.,' the Supreme Court recently upheld a National Labor Relations Board ruling that an employer's good-faith doubt about the union's majority status cannot be based solely on an assumption that workers who were hired to replace striking union members do not support the union.

The employer in Curtin Matheson hired 29 workers to replace 22 bargaining unit employees who had rejected a new contract offer and struck the company. The union eventually offered to accept the company's proposal, but by the time it did, the company had withdrawn the proposal. More important, the company withdrew recognition of the union and broke off negotiations, claiming that it had a good-faith doubt about employee support for the union. In taking this action, the company contended that it had no obligation to bargain collectively, because replacement workers, along with five others who also crossed the union's picket line, outnumbered striking union members.1 The union responded to the employer's action by filing an unfair labor practice charge with the National Labor Relations Board. It asserted that even though replacement workers outnumbered striking union members, the company could not refuse to recognize the union on this basis alone. The Board agreed, holding that an employer may not presume that all replacement workers are antiunion, but instead must present additional objective evidence supporting its doubt about employee support for the union.

In an opinion written for a 5-4 majority of the Supreme Court, Justice Thurgood Marshall approved of the Board's approach. The Board's ruling, he said, is entitled to deference because the agency plays an important role in developing and applying national labor policy. Thus, as long as the Board's approach is rational and consistent with Federal law, it is to be followed.

Next, Justice Marshall held that the Board's refusal to allow employers to presume that replacement workers are hostile to the union was rational. The attitudes of striker replacements toward the union are not always the same, he said. For example, when the union is a strong one, replacements are likely to oppose it because the union may be in a position to insist that replacements be fired as a condition for ending the strike. However, striker replacements, who also may value a union's ability to process grievances, monitor employer activities, or provide other desirable services, may not oppose a union if the union is not likely to convince the company to fire them when the strike ends.

Finally, Justice Marshall indicated that the Board's position is rational because it promotes both negotiated solutions to strikes and industrial peace. An employer who could oust the union simply by inducing a strike and hiring replacement workers, he said, might frequently choose this option rather than negotiate a solution. In addition, union members fearing these dire consequences might be chilled," or inhibited, in exercising their right to strike, which may be their only meaningful economic leverage. In light of these concerns, he concluded, the Board's decision made sense and should be followed.
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Title Annotation:Significant decisions in labor cases; Supreme Court decision on withdrawal of union recognition collective bargaining rights for replacement workers
Author:Hukill, Craig
Publication:Monthly Labor Review
Date:Jul 1, 1990
Previous Article:Productivity in industry and government in 1988.
Next Article:Bankrupt employers.

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