The Morality of Hiring Striker Replacements

The protracted Detroit newspaper strike has breathed new life into a longstanding and often vehement dispute over the rights of striking workers. Should companies have the right to hire permanent replacement workers once a strike has begun?

The Detroit News and Detroit Free Press, with work forces composed of both union members who have decided that the strike is not in their best interests and newly hired replacements, have continued to publish and thereby minimize the impact of the strike against them. This tactic has led to loud calls for reform of labor law.

Bills have been introduced in Congress and the Michigan legislature to prevent what the managers of the Detroit newspapers have done. Michigan House Bill No. 4019, for example, would make a criminal out of any employer who gives a permanent job to a worker who replaces a striker.

Missouri Representative William Clay, sponsor of a bill in Congress to ban permanent replacements, argues that, "American workers find that all too frequently the result of exercising the fundamental right to strike is to lose their job." The hiring of permanent replacements "undermines" the right to strike, in his view.

There is a glaring flaw in this reasoning, however. Short of giving employers the power to forcibly drag strikers back to work against their will, or imprisoning them, the right to strike is perfectly secure. People are unquestionably free to walk away from a job if they decide that they do not care for the wages or conditions. What Mr. Clay is really complaining about is the freedom of management to do things that undermine the effectiveness of strikes. There is a world of difference between having a right to do something and having a right to succeed at it.

Current law permits many things that undermine the effectiveness of strikes. Allowing the hiring of temporary replacements undermines the effectiveness of strikes. So does allowing firms to use management personnel to operate a plant that has been struck. Allowing firms to stay open and sell to the public during the strike is yet another example. The law permits these actions because it would be an outrageous attack on the rights of business owners to deprive them of all options except acquiescence to union demands.

But is it right to hire permanent replacements? The fact that some permanent replacements have been hired does not mean that the strikers can never return to their former jobs. Under federal law, strikers have first rights to any job openings after the conclusion of the strike. The legal difference between a temporary and a permanent replacement is that temporaries have to be fired at the conclusion of the strike--throwing them into unemployment and disrupting their families--whereas permanent replacements may stay on.

It is unfortunate that unemployment must fall upon anyone, but people who wish to assume the jobs that strikers have walked away from have concerns at least as legitimate as those of the strikers. Sometimes, the availability of a job during a strike is the best opportunity for an unemployed person to earn a good paycheck, support his family and get on track for a better future. Why should the law discriminate against these people? As American citizens, shouldn't they be as free as others to try to improve their lot in life?

Fairness and common sense suggest that the law should be neutral, conferring favors on no person or group and upholding the rights of all to live peacefully. That means, among other things, upholding the right to freely enter, or decline to enter, into contracts.

The principle of freedom of contract resolves the matter easily. When a contract expires, both parties are free to recontract as they think best, either with each other, with other parties, or not at all. Suppose, for example, that you had a contract with someone to provide you with lawn care services during the year. The following spring, he informs you that he is raising prices by 5 percent. Rather than signing a new contract with him, you look around for another person or firm who will do the work at a lower cost.

What if your old provider protested that, even though the contract is over, you are "his" customer and should be prevented from recontracting in a way that "hurts" him. You'd be right on the mark if you replied, "I am no one's slave and you are not automatically entitled to my business. That's what competition in a free society is all about. You need to learn something about basic respect for the rights of other people."

The bottom line is this: If a person vacates his job, he has no moral right to claim it indefinitely, and no moral basis to prevent the employer from offering it to another willing worker. It's called freedom of contract, and that's one thing that makes America different from places like Cuba or North Korea.