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Guest Blog: Hirsch on Whether the CAW could strike GM if U.S. law applied?

The CAW came away empty handed from the their meeting with GM leaders in Detroit, and the union has now revved up its threats of a ‘wildcat’ strike, which means an illegal strike in Canada that takes place while a collective agreement is in effect.  Doorey’s Workplace Law Blog asked guest blogger, Professor Jeffrey Hirsch of the University of Tennessee College of Law how American law would deal with the situation unfolding in Oshawa.  In particular, we asked Jeffrey whether a union in the U.S. could strike to pressure the employer to reverse a decision to close a factory and lay-off the workers.  Here’s his response:

The quick answer is that an American union can generally strike in this
situation.  Assuming that there is not a no-strike clause in the CBA,
this type of action is protected by the NLRA in most instances.  The
NLRA (Section 13) expressly states that the Act should not be construed
to “to interfere with or impede or diminish in any way the right to
strike,” except for specific statutory exceptions such as secondary
strikes.  That right is often observed in the breach, but it has
produced a fairly wide range of scenarios in which a primary strike is
allowed.  Basically, the NLRA views economic pressure as a normal part
of collective bargaining, so as long as the parties don’t go too far,
anything goes.

A further twist is that an American union would not only be allowed to
strike in this situation, but it may actually have extra protection for
the strike.  Unions much prefer an unfair labor practice strike to an
economic one, because permanent replacements are allowed only for the
latter.  The strike here looks a lot like an unfair labor practice one
under American law.  Under another provision of the NLRA (Section 8(d)),
any party that wants to modify or terminate a CBA must, among other
things, serve written notice on the other party at least 60 days before
the change, bargain with the other party, and maintain the terms of the
CBA–without engaging in a work stoppage–for 60 days after the notice
or until the CBA expires, whichever is later.  Had GM not followed this
rule for one of its American plants, it would have committed an unfair
labor practice (under Section 8(a)(5), which incorporates 8(d)), and
would mean that the union is engaging in an unfair labor practice
strike.

 

Finally, the President does have the power to enjoin a strike or
lock-out for up to 80 days if the work stoppage threatens national health or safety.  That power has been rarely used, as President Bush discovered
after he enjoined a longshoreman work stoppage a few years ago.

Thanks Jeffrey, very interesting how the law of the two countries varies so widely on the approach to strikes.

 

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