Strikebreakers and the law Presidential order nullified: Setback for labor underscores need for new strategies.

February 06, 1996

DOES THE RIGHT to strike include the right to succeed in a strike? Put another way: If companies can legally replace striking workers, does the right to strike carry any muscle at all?

However one answers those questions, it is clear there is no guarantee of a painless passage from one economic era to another. The country is entering, often uneasily, a global economy in which the power of unions is greatly diminished, while employers insist they need maximum flexibility in order to compete.

The days when organized labor could call a strike, set up picket lines and wait for management to cave are over. No one understands this better than John J. Sweeney, the new head of the AFL-CIO, who led successful strikes for service workers by appealing to public sympathies through mass rallies, alliances with religious and community groups and embarrassing publicity comparing executive salaries and perks to that of union members.

Labor's need for a fresh approach was amply demonstrated last week when a three-judge Court of Appeals panel unanimously struck down a presidential order issued last March, which directed that no government contracts over $100,000 be awarded to any company that undermined unions by hiring replacements for striking workers. Informed of the decision, President Clinton defended his order as "economically sound, fair and legal," and ordered the Justice Department to "take all appropriate steps to have this order overturned."

Secretary of Labor Robert Reich argued that there was a legitimate government interest in preventing the use of replacement workers on federal contracts, since that work was likely to be inferior, a position more likely to sway voters than a judge. The Chamber of Commerce, which challenged the order last March, successfully contended that the president had not linked his edict to salient government interests such as savings in procurement, as required by government regulations.

The appeals court panel agreed, and was unequivocal in its judgment that the president's order was a clear violation of the National Labor Relations Act of 1935. That victory for employers deals a setback to the president's efforts to mollify labor after his vigorous support of free trade agreements. It is also another sign of the wisdom of Mr. Sweeney's strategies -- which recognize that labor's strength in the new economy lies more in the court of public opinion than in a court of law.

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