Last week, Kellogg’s workers rejectedA management contract offer that could have been terminated by the company two-month strike at four cereal plants. Their decision to stay on the picket lines for a better deal elicited an ugly threat from Kellogg’s: to permanently replace the strikers with other workers.
Kellogg’s escalation lured President Joe Biden into the fray. Biden issued a rare president’s rebuke to a company caught in the middle of labor disputes. condemned Kellogg’s move as “an existential attack on the union and its members’ jobs and livelihoods.”
It’s routine for companies to bring in replacement workers — “scabs,” in union parlance — to try to maintain production during a strike. Is it possible for the company to get rid of striking employees?
It is difficult to use permanent replacements. law. Employers have the legal right to replace strikers to maintain their business, as per the 1938 Supreme Court decision. Mackay Radio. The court found that radio technicians involved in the case had ended their strike and that they were not required to lay off replacement workers or give back their jobs.
However, the right to strike isn’t absolute. Subsequent case law has clarified that employers can only permanently replace workers who are on strike for “economic” reasons — i.e., trying to improve their wages and benefits — and not because they’re protesting their employer breaking the law.
“The bite of the permanent replacement doctrine is the employer has no obligation to discharge the replacement workers when the strike is over.”
The Bakery, Confectionery, Tobacco Workers and Grain Millers’ International Union (BCTGM), which represents the 1,400 Kellogg’s workers on strike, has filed unfair labor practice charges against the company in recent weeks, accusing it of violating workers’ rights during the work stoppage, according to National Labor Relations Board filings. Such charges could lay the groundwork for a legal fight over the lawfulness of Kellogg’s using permanent replacements.
Employers cannot legally hire permanent substitutes if they are trying to crush the union or expel supporters. But it’s difficult to prove an employer’s motives in calling in replacements.
Kellogg’s would not say whether it has hired any permanent replacements yet in response to a HuffPost inquiry. The company’s website. jobs siteThe company has posted job openings specifically to hire strikers. The company would not be required to hire strikers as permanent replacements if it did.
BCTGM spokesperson Corrina Christensen said in an email that Kellogg’s threat to bring in permanent replacements is a “direct attack on workplace democracy and worker rights.”
“Moreover,” she added, “this is Kellogg’s attempt to rid itself of the union.”
An incredibly powerful weapon
Businesses have used the threat of permanent replacements as a tool for years, to shift power or stop a strike before it starts.
A strike threat is meant to push both parties to agree to compromises and reach a mutually acceptable agreement. If the workers walk off the job, the employer will lose production and the workers will lose pay until they’ve both had enough and compromise. But the possibility of losing one’s livelihood to a permanent replacement forces a striker into a new set of calculations.
“The bite of the permanent replacement doctrine is the employer has no obligation to discharge the replacement workers when the strike is over to make room for returning strikers,” said Benjamin Sachs, a labor law professor at Harvard Law School. “That means if the replacement never leaves, you can never get your job back.”
Brandon Magner, a labor lawyer noted recently in a Twitter post that this is a problem. thread, it wasn’t until around the 1980s that employers used the threat of permanent replacements broadly and made good on it. The possibility of forever losing one’s job, Magner said, “is now a staple talking point in organizing campaigns,” with employers highlighting it to scare workers out of unionizing.
Biden’s criticism of the permanent replacement doctrine is not new for a Democrat or even for a sitting president. Recognizing how the law weakened workers’ leverage, many Democrats tried in the 1990s to amend the National Labor Relations Act to forbid employers from hiring permanent replacements for strikers.
This was after a long and bitter strike at Jay, Maine’s International Paper mill, which ended in defeat in 1988 and 1987. After hiring permanent replacements to the strikers, the company eventually ended the strike. decertificationCampaign, demonstrating how important the Mackay doctrine is for employers.
In his book about the strike, “The Betrayal of Local 14,” labor law scholar Julius Getman told the story of how the permanent replacement of strikers ruined lives and relationships, forever altering a community that was built around its primary employer. Getman said that workers were being betrayed by a law intended to protect them.
The ability to use permanent replacements “frequently undercuts the desire of the employer to avoid a strike,” Getman explains in the book. “It gives the employer a motive not to reach an agreement but rather to force a strike, so that it can permanently rid itself of union supporters and very possibly of the union itself.”
Bill Clinton was a 1992 presidential candidate. He campaigned on the principle that employers should be able to fire permanent substitutes. A bill was passed by Democrats in the House that would do exactly the same thing, but it failed to pass the Senate due to a GOP filibuster. Two years later, a similar effort was defeated by Clinton at the White House. This is partly due to the insufficient support from Southern Democrats in this upper chamber.
Clinton issued an executive order in 1995 that would prevent companies from hiring permanent replacements. The government tried to use its purse strings in order to assist workers, but it was blocked by business groups and a judge.
The unions continue to push for Democrats’ repeal of a law that they feel favors striking employers. The Protecting the Right to Organize Act is a broad labor reform bill which would among others, help progressives to gain support from Capitol Hill. bar companiesWorkers can be permanently replaced.
But like the legislative efforts in the ’90s, it still hasn’t managed to win uniform Democratic support and overcome a likely GOP filibuster.
‘The Last Arrow In Their Quiver’
The Kellogg’s strike revolves around a two-tier system that offers newer, “transitional” employees a lower compensation scale than veteran “legacy” employees. The workers have stated that they want to get rid of the system or at minimum chip away at it. The company’s proposals would maintain and possibly expand the system over time.
These two-tier system not only provide unequal wages for equal work but also weaken the unity of unions, dividing workers into different classes. Many workers believe Kellogg’s ultimate goal is to weaken the union itself, and they see the threat of permanent replacements as part of the strategy.
But Trevor Bidelman, a fourth-generation Kellogg’s worker and president of the local union in Battle Creek, Michigan, has his doubts about whether the company could pull off permanently replacing them, legally or practically.
The union has filed unfair labor practice charges against the company accusing it of bargaining in bad faith and “direct dealing,” or bypassing the union to bargain directly with workers. The NLRB could find merit in these charges and the workstoppage might be treated as a strike for unfair labor practices. Permanent replacements would then be illegal.
“The company is able to use that threatening rhetoric to influence the collective bargaining process. It is just wrong.”
Bidelman said he’s confident the charges will stick. But he also said it would be difficult for Kellogg’s to permanently replace strikers since the company has been struggling to hire, especially amid a tight labor market. The Battle Creek plant has a 10% utilization rate right now, according to Kellogg’s. Kellogg’s declined to say what the production levels are at the facilities under strike.
“We’ve all been in these plants while they’ve been trying to hire for years using us as trainers,” Bidelman said. “For it to be feasible long-term, it would be 10 months to a year before those plants were running at any remotely efficient level.”
Bidelman has tried to explain these issues to his members, to try to comfort them. But, he also said that the possibility of permanent replacements for workers naturally concerns people. He believes Kellogg’s issued the threat to weaken workers’ resolve and pressure them into accepting a lesser deal than they would have otherwise.
“The company is able to use that threatening rhetoric to influence the collective bargaining process,” he said. “It is just wrong.”
If Kellogg’s follows through on its promise, workers could find an ally in Biden’s recent appointments to the National Labor Relations Board.
Jennifer Abruzzo, the board’s new general counsel, has quickly shaped an aggressive agenda that could tip some parts of the law back into workers’ favor. And even before Kellogg’s said it would hire permanent replacements, Abruzzo declared publicly that she would like to revisit the legal doctrine on the issue.
Under NLRB precedent, an employer doesn’t have to demonstrate that it was necessary to hire permanent replacements in order to continue operating. However, in a memo and a tweet thread), Abbruzzo’s office said she would look at whether “a change is necessary to the permanent replacement doctrine,” suggesting she might try to make it harder for companies to get away with it.
If Abruzzo were to charge an employer like Kellogg’s with illegally hiring permanent replacements, such a case could end up before the NLRB’s five-member board. The body now holds a 3-2 Democratic majority due to Biden’s appointments and is far more worker-friendly than it was during the Trump years.
Dan Osborn, a mechanic and union leader at the Kellogg’s plant in Omaha, said he was thrilled to see Biden take the company to task. Osborn stated that his union noticed a significant increase in donations to the financial relief fund for strikers after President Biden’s statement.
But Osborn noted that a statement is just a statement, and he hopes people in a position of power will do more to help Kellogg’s workers.
“I think Kellogg’s is shooting the last arrow in their quiver,” Osborn said. “They’re trying to win this by scaring us and trying to get people to cross the picket line. And that’s how we lose — if we falter and everyone starts going back to work without a contract.”