Rapport définitif - Rapport No. 278, Juin 1991

1. 60. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) presented a complaint of violations of trade union rights against the Government of the United States in a communication dated 27 July 1990. The Government submitted its observations in a communication dated 2 May 1991.
2. 61. The United States has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 62. In its communication of 27 July 1990, the AFL-CIO alleges in substance that the United States labour law and jurisprudence allow for the permanent replacement of workers engaging in lawful economic strikes, which gives rise to violations of freedom of association, and of the rights to organise and collective bargaining.
2. 63. The complainant states that, while it is unlawful for an employer to discharge employees for exercising their lawful right to strike, in "economic" strikes as opposed to "unfair labor practice" strikes, the employer is permitted to hire permanent replacements for strikers. This doctrine was first stated by the United States Supreme Court in 1938 in Labor Board v. Mackay, and subsequently amplified in Belknap v. Hale (1983) and TWA v. IFFA (1989) (hereinafter cited as "Mackay" or the "Mackay doctrine"). Employers are permitted to hire permanent replacements of economic strikers in industries covered by the Railway Labor Act as well as in those covered by the National Labor Relations Act (NLRA). The complainant attaches several documents explaining the legal history and arguments concerning the issue of strikers' replacements. In most cases, these are briefs submitted by various union groups or leaders during the hearings held by Senate or House of Representatives Subcommittees on draft legislation currently being considered, with a view to amending the NLRA.
3. 64. The complainant alleges that there is often no practical difference between discharge and permanent replacement of strikers. For instance, letters (annexed as evidence to one of the submissions mentioned above) sent to employees of the Kraft Company read: "This is to inform you that your job has been filled by a strike replacement." That is not exactly a discharge notice, but the effect is similar; protected, concerted activity is not, in fact, protected. The complainant gives numerous examples (also drawn from briefs to the subcommittees) of situations where strikers have been permanently replaced and of the effects these actions have had on collective bargaining:
   • - Hoover Group Plant in Charlotte, Michigan (Appendix B);
   • - Anvin Automotive Industries in North Vernon, Indiana (Appendix B);
   • - Phelps Dodge in Ajo, Clifton and Morenci, Arizona (Appendix C);
   • - Woodstock Die Cast in Woodstock, Illinois (Appendix D);
   • - Continental, Eastern and United Airlines (Appendix E);
   • - Transworld Airlines (Appendix F);
   • - Washington Beef Inc. in Topperish and Yakima, Washington (Appendix G);
   • - Payless Northwest Drug Stores Inc. in Spokane, Washington (Appendix G);
   • - Kraft/SS Pierce Foodservice in Peabody, Massachusetts (Appendix H);
   • - International Paper in Jay, Maine (Appendix I);
   • - Greyhound Lines, throughout the United States (Appendix J);
   • - Chicago Tribune Company in Chicago, Illinois (Appendix Q);
   • - Magic Chef/Maytag in Cleveland, Tennessee (Appendix Q);
   • - Hormel Meat Packing in Austen, Minesotta (Appendix Q);
   • - Brown & Sharpe Manufacturing Co. in Rhode Island (Appendix Q);
   • - Colt Firearms in Connecticut (Appendix Q);
   • - Boise Cascade in Rumford, Maine (Appendix Q);
   • - Marathon Letourneau Co. (Appendix Q);
   • - St. Joe Mineral Corporation, Missouri (Appendix Q).
4. 65. According to the complainant, the practice of employers of permanently replacing strikers has been increasing in the 1980s as shown in a document prepared by the United States General Accounting Office (Appendix L). This has caused a serious imbalance in industrial relations by placing the weight of the law on one side of the bargaining table; it has increased conflicts between labour and management and among workers, has undermined the negotiation of collective bargaining agreements and, in many cases, has led to the destruction of trade unions with the consequent loss of worker representation and rights.
5. 66. The strike has become, in many cases, an employer weapon to be used as part of a strategy to eliminate trade unions. The permanent replacement of strikers is a key element in that strategy. Although there is a legal obligation to bargain in good faith, the insistence by some employers on unacceptable and sometimes fundamental changes in a contract or on concessions which are not justified by the economic performance of the company are designed to provoke an economic strike to allow the employment of permanent replacement workers. Following the legal period of one year after the expiration of collective agreements (in the absence of pending unfair labour practice charges which may block the procedure, at least temporarily), a decertification election to eliminate union representation can be held, in which permanent replacement workers are eligible to vote. In some cases, permanent replacement workers are recruited, and even trained, prior to a strike. In the Greyhound strike, for instance, the company began advertising in major newspapers throughout the country three weeks prior to the expiration of the collective agreement (Appendix J); the employer, of course, made sure that the affected members of the AFL-CIO affiliated union were aware of this effort. Furthermore, if an agreement is negotiated on the terms of a contract during a strike, there is often at that point an additional issue on the table, namely the right of strikers to return to their jobs which have been filled by permanent replacement workers.
6. 67. In the United States, employers are allowed to interfere in the decision of workers as to whether or not they want to have trade union representation. With very few and limited restrictions, they can legally engage in a comprehensive and vigorous anti-union campaign, including on paid time, directed at individuals and groups of workers. In nearly all such campaigns, the issue of strikes plays a key role in that propaganda offensive. Employees are usually advised that, if they organise and engage in an economic strike, they can be permanently replaced. In its submission to the Senate Subcommittee, a professor of the University of Texas stated, after studying 35 organising campaigns in the private sector: "In virtually every campaign, the employer announced it would bargain tough, so that employees would have to strike to gain substantial benefits. The employees were also told that, in the event of a strike, they would be vulnerable to permanent replacement, an option that the employer would not hesitate to exercise". (Appendix R). Two fairly typical examples of the use of this strategy in an employer anti-union campaign are found in Appendix K to the complaint; in this case, a campaign against the United Steelworkers of America by WCI, the North American subsidiary of the Swedish-based multinational enterprise, Electrolux.
7. 68. If an employer fails in the anti-union campaign and the workers win union representation, the battleground then often switches to bargaining for the first contract. In almost half of the newly organised facilities, the workers never succeed in negotiating a first contract (Appendix R). The threat to replace workers permanently or the exercise of that possibility is particularly important at this crucial, delicate and difficult time in the emergence of a new trade union organisation.
8. 69. The legal possibility for employers permanently to replace economic strikers undermines freedom of association and collective bargaining at every stage of the process. It often thwarts the process of self-organisation, denies workers the protection of a first collective bargaining agreement, provides an incentive for employers to destroy long and stable industrial relations and results in loss of employment and representation for workers.

B. The Government's reply

1. 70. In its communication of 2 May 1991, the Government asserts that existing United States labour law adequately protects the rights and interests of both workers and employers and that the possibility of hiring strike replacements therefore does not represent an abridgement of the right to strike. The Government further replies to the complainant's allegations under the five following headings:
   • - the replacement worker doctrine is a long-time component of United States labour law, which seeks to balance the rights and interests of workers and employers;
   • - economic strikers who are replaced remain employees and enjoy substantial reinstatement rights;
   • - employers are prohibited from using replacement workers to oust the sriking trade union;
   • - the decline in trade unionism and the decrease in work stoppages in the United States are not attributable to the replacement worker doctrine; and
   • - available data do not support the claim that the use of replacement workers has increased in recent years.
2. 71. As regards the first point, the Government states that the purposes of the United States labour law are to promote and protect collective bargaining as the means of conducting labour-management relations, and to prohibit discrimination against employees because of their views or activities regarding unionisation. In pursuance of these objectives, United States law provides both workers and employers with certain legal rights and economic tools with which they can bargain. The Government maintains a strictly neutral role in this process: through the independent National Labor Relations Board (NLRB) and the federal courts, it ensures that rights are protected, but it does not dictate a particular result at the bargaining table.
3. 72. The heart of United States labour law is the National Labor Relations Act (NLRA), originally enacted in 1935, which established the NLRB and made the collective bargaining process the primary means for securing labour-management agreements. The NLRA covers labour relations in most private sector industries in the United States and guarantees the right to strike to all employees covered by the Act, section 13 of which provides that "nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right". As a balance to this right to strike, employers have the legal right to continue operations during a strike, including the right to hire replacements for their striking employees.
4. 73. The United States Supreme Court addressed the issue of replacement workers for the first time in 1938, in NLRB v. Mackay Radio & Telegraph Co.. It interpreted the NLRA's protection of workers' right to strike as not precluding employers from hiring employees to replace striking workers, temporarily or permanently. In deciding this issue, the Court distinguished between an economic strike (related to terms and conditions of employment) and an unfair labour practice strike (initiated or prolonged in response to the employer's commission of an unlawful activity under the NLRA). In economic strikes, where so-called permanent replacements have been hired, employers are obligated to reinstate strikers as vacancies are available. But upon finding that an employer has caused an unfair labour practice strike, the employer must immediately reinstate the strikers upon their unconditional offer to return to work, even if replacement workers must be discharged. The logic of distinguishing between economic and unfair labour practice strikes is apparent: if any employer causes or prolongs a strike by committing an unfair labour practice (i.e. by violating the NLRA), it is not allowed to exacerbate the breach by permanently replacing its striking employees; however, if the dispute involves economic demands which the employer is unable or unwilling to meet, the employer may hire permanent replacement workers to fill the jobs of employees who choose not to work. However, in providing employers experiencing an economic strike the option of hiring permanent replacement workers, United States law simultaneously gives the striking employees substantial protections.
5. 74. It is also important to note that an economic strike can be converted to an unfair labour practice strike if, as the federal courts and the NLRB have frequently stated, the employer committed an unfair labour practice that caused or prolonged the economic strike. Examples of employer activity which can convert the strike include: unilateral action by the employer on issues about which the NLRA requires it to bargain with employee representatives; improper discharge of striking employees; improper withdrawal by the employer of recognition of the union as the employees' bargaining representative; or bad faith failure to provide appropriate financial information to the union. When such findings are made, the economic strikers become unfair labour practice strikers and are entitled to immediate reinstatement upon their unconditional offer to return to work. Although the NLRA has been amended several times by Congress over the years, the doctrine concerning replacement workers has remained virtually unchanged since 1938.
6. 75. On the second point, the Government states that under United States law, an employer is permitted to hire replacement workers to take the place of employees who are engaging in an economic strike. In the absence of a determination that the employer has engaged in an unfair labour practice (which converts the economic strike to an unfair labour practice strike), the employer is not required immediately to reinstate economic strikers at the conclusion of the strike. However, the law prohibits an employer from discharging striking employees. Even if replaced, under United States law, economic strikers retain their status as employees and are entitled to preferential reinstatement. Section 2(3) of the NLRA provides that the term "employee" includes "any individual whose work has ceased as a consequence of, or in connection with, any current labour dispute or because of any unfair labour practice, and who has not obtained any regular and substantially equivalent employment ...". An economic striker's status as an employee therefore continues until he has obtained other regular and equivalent employment.
7. 76. In 1967, the Supreme Court, in NLRB v. Fleetwood Trailer Co. Inc., clarified the responsibilities of employers to reinstate economic strikers. An employer who fails to reinstate such strikers at the conclusion of a strike is guilty of an unfair labour practice unless it can show "legitimate and substantial business justifications", such as curtailed production or the fact that strikers' jobs are occupied by replacement workers. Upon an unconditional offer to return to work, the employer must offer a job to an economic striker when a job for which the striker is qualified becomes available- for example, when a replacement worker leaves or when full production is resumed. This right of reinstatement extends not only to the job the striker held before the strike, but to any other jobs for which he may be qualified. An employer is thereby prevented from refusing to reinstate an economic striker by claiming that the particular job he previously held no longer exists. The employer must also reinstate all qualified economic strikers before hiring any new workers. Only if an economic striker refuses the employer's offer of an equal or substantially equivalent position, or if he obtains regular and substantially equivalent employment elsewhere, is his reinstatement right extinguished. In NLRB v. Erie Resistor Corp., the Supreme Court further protected economic strikers' employment rights by limiting the power of employers to give special seniority privileges to replacement workers. The Court ruled that it is an unfair labour practice under the NLRA for an employer to give "superseniority" to replacement workers or employees who return to work during a strike. In addition, the employer may not offer to strike replacements terms of employment better than its final offer to the strikers. Moreover, a striker's seniority cannot be adversely affected by his engaging in a strike. Upon reinstatment, an economic striker will be in a preferred position relative to less senior replacements as to seniority-sensitive wages, benefits, and terms and conditions of employment.
8. 77. Concerning the third point (in reply to the complainant's allegation that employers may purposely force a strike by refusing to come to an agreement, hire replacement workers during the strike, and thereby weaken, if not completely destroy, the union), the Government asserts that under the NLRA, surface or sham bargaining is illegal. Bargaining to force a strike violates the duty to bargain in good faith, and hence, it is an unfair labour practice. As noted above, in such a case the strike may be converted to an unfair labour practice strike and, upon such a finding, the employer would be obliged to reinstate the striking workers immediately, even if they had been replaced. Under those circumstances, the employer might also be liable for other damages, such as back pay. For example, in one recent case, a strike by the United Auto Workers against a division of Colt Industries was ruled, four years after the strike began, to have been an unfair labour practice strike. The employer was ordered by an NLRB Administrative Law Judge to reinstate any strikers not yet restored to their jobs and to provide back pay. The eventual settlement between the parties cost the employer $13 million, including $10 million in back pay.
9. 78. Furthermore, under United States law, even if an employer has replaced its striking employees, the trade union continues to represent all bargaining unit employees. Both the replacements and the strikers are considered to be represented by the union, unless the employees vote the union out through an NLRB-supervised decertification election or the employer can demonstrate objective evidence that the union is no longer supported by a majority of the employees. For a period of one year from the commencement of the strike, replaced strikers have a statutory right to vote in any such decertification election. In 1990, the Supreme Court strengthened the rights of trade unions in situations where employers have hired permanent replacement workers. In NLRB v. Curtin Matheson Scientific, Inc., an employer hired replacement workers during a strike and then attempted to withdraw recognition of the union, on the assumption that the replacement workers, who then made up a majority of the workforce, opposed the union. However, the Supreme Court ruled that an employer cannot assume that the replacement workers as such oppose the union; therefore, to withdraw recognition on that basis is an unfair labour practice.
10. 79. It is an economic fact that employers may not be able to continue operations during a strike unless they hire replacement workers. Moreover, workers with the requisite skills are often unwilling to take only a temporary job, or to cross a union picket line for less than an offer of permanent employment. However, because economic strikers enjoy substantial reinstatement rights and trade union protection, the decision to hire replacement workers is not one that employers make easily or often. For example, an employer may decide to hire permanent replacements to continue operations during a strike; however, if the National Labor Relations Board later finds the strike was caused or prolonged by the employer's illegal labour practice, the company may have to pay twice for the same work: the permanent replacements would be paid and the employer may be ordered to reinstate strikers with back pay to correct its violation of the law. Such NLRB orders obviously can have cataclysmic financial effects that employers must consider before reacting to a strike.
11. 80. As regards the fourth point (in reply to the complainant's assertion that the Mackay doctrine has had a chilling effect on the ability of unions to strike and on their bargaining power and, consequently, has contributed to the decline in trade union membership in the United States), the Government states that the decline in trade unionism and the decrease in work stoppages are not attributable to the Mackay doctrine. That judgement was issued in 1938, and trade unions and strike activity flourished for decades following that ruling. In fact, trade unions thrived until their growth began to slow down in the 1970s. The gradual decline in trade union membership since then is attributable to many factors including, most importantly, a shift in the United States economy from an industrial to a more service-oriented base, global competition, a changing workforce and, according to some analysts, a less favourable public view of unions. Since the 1970s, the United States has experienced severe recessions, a tremendous increase in foreign competition, and deregulation in major industries. These factors have had a strong impact on the labour force. In particular, manufacturing industries, which traditionally have been major sources of trade union strength, suffered large decreases in jobs, while service industries, which have traditionally been less unionised, increased their share of the labour market.
12. 81. The slow-down in union membership was accompanied by a dramatic decrease in work stoppages (strikes as well as lockouts) since the 1980s. The AFL-CIO contends that the 1981 strike of the Professional Air Traffic Controllers' Organization (PATCO) is the key to this phenomenon. According to the AFL-CIO, after the PATCO workers were replaced, it became acceptable behaviour in industrial relations for employers to replace strikers permanently; as the hiring of replacement workers (or the threat to do so) has increased, they argue, strikes have decreased. It is important to understand, however, that the PATCO case is not analogous to a legal economic strike in which replacement workers are hired. The PATCO strike did not involve the hiring of replacement workers. Rather, PATCO members, who were federal government employees engaged in an essential service, struck in contravention of the law, were dismissed and lost all their employment rights. New employees were then hired to fill the vacant positions. The decline in work stoppages is, instead, more likely due to the slowing rates of unionisation and changing industry characteristics noted above. Employers, faced with stiffening competition, have been forced to reduce labour costs, and consequently are more likely to resist labour demands even in the face of a possible strike. Moreover, unions which also recognise these new economic realities, likewise appear more hesitant to strike than in the past. In addition, the changing labour and economic climate has led to greater cooperative efforts by labour and management to resolve labour disputes as well as pursue common interests and goals.
13. 82. Finally, the Government contends that the available data do not support the contention that the use of permanent replacement workers has increased in recent years. The report of 6 June 1990 by the United States General Accounting Office (GAO) referred to in the AFL-CIO complaint found that "no comprehensive data are available on the use of permanent replacements for striking workers". Indeed, there are so few data available on this subject, that the GAO was able to assess only workers' and employers' opinions as to whether employers hired permanent replacements more frequently in the 1980s than they did in the 1970s. Further, when the GAO was able to gather data on employers' actual use of replacement workers, its findings do not comport with the claim that the use of permanent replacements is a widespread and growing phenomenon.
14. 83. To acquire concrete information on this issue, the GAO collected data on employer use of permanent replacement workers through a random sample of work stoppages in 1985 and 1989, the earliest and latest years for which computerised information was available. On the basis of those admittedly limited data, the GAO estimated that in the two years it surveyed, permanent replacements were hired in only 15 per cent of reported strikes. In January 1991, the GAO issued an updated report entitled "Strikes and the use of permanent strike replacements in the 1970s and 1980s", where it refined its estimate of the number of strikes in which employers hired permanent replacements to 17 per cent in each year. More importantly, in addition to estimating the number of strikes in which permanent replacements were hired, this survey also estimated that in 1985 and 1989, only 4 per cent of all strikers were permanently replaced.
15. 84. The complainant described a few dramatic cases in an effort to demonstrate the alleged increasing use of replacement workers and the resulting adverse impact on the lives of strikers. Although the GAO has estimated the percentage of strikes in which permanent replacements were hired as well as the percentage of strikers replaced, there are no data available on whether or when those strikers were reinstated. None the less, it appears that the permanent replacement of economic strikers is the exception rather than the rule: practical experience suggests that strikers seldom suffer actual loss of employment. As noted above, the updated GAO report estimates that in the years it surveyed only 4 per cent of striking workers were replaced. Under United States labour law, those strikers remained employees with preferential reinstatement rights. As a result, it is highly likely that many, if not most, were subsequently reinstated by means of a strike settlement agreement or the conversion of the strike to an unfair labour practice strike or, failing that, through replacement turnover. Contrary to the AFL-CIO claim, it would appear that the use of strike replacements has little permanent effect on strikers' employment. In fact, it might be argued that the term "permanent" replacement is a misnomer. Just as the GAO surveys do not support the contention of the AFL-CIO that the hiring of replacement workers has increased significantly in the 1980s, the various court decisions since 1938 regarding permanent replacements, including those cited above, demonstrate that this right has been continually, albeit infrequently, exercised by employers over the years.
16. 85. In conclusion, the Government declares that the law allowing employers to replace economic strikers has been an integral part of labour relations in the United States since the passage of the NLRA in 1935; it has gone relatively unaltered and, until recently, unchallenged. This policy stems from the overall objective of United States labour law to balance the rights and interests of both workers and employers within the United States system of industrial democracy. Under the NLRA, both trade unions and employers have developed sophisticated economic measures to offset each other's bargaining power. The most potent measure that workers have is the right to strike. Employers have the countervailing right to continue operations in spite of a strike. In many instances, replacement workers may not be able to accept only temporary employment or be willing to cross picket lines for only temporary jobs. Employers, therefore, have a substantial business need for having the option to offer permanent positions to replacement workers. Nevertheless, in providing employers with this option in an economic strike, the law ensures that striking workers who are replaced maintain their status as employees and are accorded substantial reinstatement and seniority protections. In the light of these protections, the Government believes that the freedom of association of workers in the United States has not been abridged. The system of collective bargaining in the United States can at times be painful for both employees and employers, but the Government believes that it is the most effective and fair system for workers in the country. Much of the remarkable job generation in the United States in recent years is attributable to the flexibility and dynamism allowed under the unique system of labour relations. The Government considers that, far from infringing on trade union rights, United States labour law- including the possibility of permanently replacing economic strikers- has proven to be balanced fairly and in the public interest.
17. 86. The Government also attached to its observations a position statement prepared by the United States Council for International Business (USCIB). While not considering it as part of its observations, the Government mentioned in its letter of 2 May 1991 it expected that this document would be duly examined by the Committee. In that document, the USCIB raises most of the factual and legal arguments put forward by the Government, which may be summarised as follows:
    • - the declining union representation is not due to the Mackay doctrine, but to a wide variety of factors (as listed in the Government's observations);
    • - the use of Mackay replacements remained at about the same level for over 50 years, which is demonstrated by the available data;
    • - Mackay replacements are not used as a "union busting" tactic, but as business and economic circumstances dictate;
    • - United States labour law provides a fair balance between competing employees' and employers' interests, by limiting substantially the use of Mackay replacements and giving economic strikers preferential reinstatement rights that are enforceable before the NLRB and federal courts.
18. 87. The USCIB, as a threshold matter, also questions the appropriateness of using the Committee on Freedom of Association's procedures to assess United States labour policy when there is no actual case against which the Committee can evaluate the application of United States law and practice to particular factual circumstances. Without a factual presentation of the context of a particular strike situation, the Committee is in no position to evaluate the complaint. The USCIB concludes that the United States labour policy on strikers' replacement, as interpreted in Mackay, does not violate trade union rights.

C. The Committee's conclusions

1. 88. The Committee has studied carefully the elaborate submissions made by all concerned. Before examining the central issue, namely the substantive aspects of the so-called Mackay doctrine and its effects in practice, the Committee wishes to state that it is unable to conclude with any degree of certainty, based on the statistical information provided, whether or not employers actually had more frequent recourse to permanent replacements in recent years, and whether there is a link between the use of replacement workers and the decrease in trade unionism and collective bargaining activity, as contended by the complainant.
2. 89. The Committee further notes that United States labour law and jurisprudence do appear better to protect "unfair labour practice" strikers rather than purely "economic" strikers, which some examples provided by the Government demonstrate. However, the Committee would rather not delve into this distinction- in spite of its very real incidence on the re-employment prospects of economic strikers- firstly because it is not competent (and does not have the benefit of comprehensive evidence, testimonies and arguments) to make such a determination, best left to the NLRB or the courts; and secondly, and perhaps more importantly, because that distinction obfuscates the real issue in the present context, i.e. whether United States labour law and jurisprudence (the so-called Mackay doctrine) are in conformity with the freedom of association principles.
3. 90. The statutory and jurisprudential background to this case may be summarised as follows:
   • - section 13 of the NLRA guarantees the right to strike;
   • - as a balance to this right, employers have the legal right to continue operations during a strike, including the right to hire permanent replacement workers;
   • - the courts distinguish between economic strikers and unfair labour practice strikers; the latter enjoy better reinstatement rights;
   • - employers' actions which may turn an economic strike into an unfair labour practice strike include, among others, unilateral action by employers on issues about which the NLRA requires them to bargain with employee representatives; improper discharge of striking employees; improper withdrawal by the employer of recognition of the union as the employees' bargaining representative; bad faith failure to provide appropriate financial information to the union. When such a finding is made, the economic strikers become unfair labour practice strikers and are entitled to immediate reinstatement upon their unconditional offer to return to work;
   • - unions also enjoy a certain protection under the NLRA, in so far as they continue to represent both the strikers and the replacements (unless there is a decertification vote);
   • - although the courts clarified and enlarged to some extent the reinstatement rights of economic strikers (including in the Fleetwood Trailer and Erie Resistor cases) economic strikers who have been permanently replaced are entitled to reinstatement only if and when vacancies occur, such as when replacements choose to leave.
4. 91. In practice, this last point means that, in the absence of a determination of unfair labour practice, which in any event may take several years until the last appeal option has been exhausted, an employer may legally replace economic strikers permanently. This also implies that a worker who has legally exercised his statutory right to strike, while never formally discharged by the employer, may be permanently out of his or her job. As mentioned above, the available data do not establish that the use of replacement workers has increased in recent years, that it has become a generalised practice, or that there is a documented link between the application of the Mackay doctrine and declining trade unionism in the United States. However, the Committee has been provided with examples, drawn from the briefs to the legislative subcommittees, showing that permanent replacements of economic strikers do happen in practice.
5. 92. The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. The Committee considers that this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally. The Committee considers that, if a strike is otherwise legal, the use of labour drawn from outside the undertaking to replace strikers for an indeterminate period entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights.