Although the National Labor Relations Act protects the right to strike, the Supreme Court, in a footnote in the 1938 decision Mackey Radio decision, stated that the employers are “not bound to discharge the replacements of strikers.” Employers rarely used their power to permanently replace strikers until the Reagan administration fired the striking air traffic controllers in 1981. In the ensuing decade, permanently replacing strikers and decertifying unions became a commonly used employer strategy.

The National Labor Relations board has developed a categorization scheme for the reinstatement rights of strikers. Most strikes are labeled economic strikes. These strikes are precipitated by a contractual dispute over wages, working conditions or anything else that the union wants in a contract. Economic strikers cannot be discharged, but they can be permanently replaced. I the strikers lose the strike and make an unconditional offer to return to work, they are placed on a preferential hiring list and called back to work as needed. The employer cannot hire off the street until exhausting the list. However, if a full complement of strikebreakers is hired, many years could lapse between the strike and offer to return to work. Most strikes to gain contracts are economic strikes.

Another category is the unfair labor practice strike. If the union walks out because the employer has committed an unfair labor practice, such as discharging a union supporter or bargaining in bad faith, the employer may hire temporary replacement workers. If the union proves that the strike was caused by unfair labor practices, the replacements must be discharged when the strike is settled or the strikers make an unconditional to return.

The Cesar Chavez Workplace Fairness Act would make the hiring of permanent replacements an unfair labor practice. Thus all legal strikes would be treated as the law now treats unfair labor practice strikes. Strikers would know that they will return to their jobs at the end of the strike, win or lose.

The proposed law would also overturn the Supreme Court decision, Trans World Airlines, Inc. v. Independent Federation of Flight Attendants. In that 1989 decision, the Court held that an employer was not required to lay off junior employees who crossed the picket lines and reinstate senior strikers at the end of the strike. The Workplace Fairness Act would make it an unfair labor practice to withhold or deny any employment right (such as seniority) to a striker in preference to any individual who worked during the strike.

Cesar E. Chavez founded the National Farm Workers Association, later to become the United Farm Workers the UFW. For more history go to the ufw.org website.