A strikebreaker (sometimes pejoratively called a scab, blackleg, bootlicker, blackguard or knobstick) is a person who works despite an ongoing strike. Strikebreakers may be current employees (union members or not), or new hires, who are hired after or during the strike to keep the organization running. In continuing to work, or taking jobs at a workplace under current strike, strikebreakers are said to "cross picket lines".
Some countries have passed laws outlawing strikebreakers to give more power to trade unions, other countries have passed right-to-work laws which protect strikebreakers.
International law
Look up strikebreaker in Wiktionary, the free dictionary.
The right to strike is well-established in international law.[1] In particular, the 1966 International Covenant on Economic, Social and Cultural Rights establishes: "The right to strike, provided that it is exercised in conformity with the laws of the particular country."[2] The International Labour Organization (ILO) Committee on Freedom of Association and other ILO bodies have interpreted all core ILO conventions as protecting the right to strike as an essential element of the freedom of association as well as the freedom for workers to organize and established principles on the right to strike through rulings.[3] For example, the ILO has ruled that "the right to strike is an intrinsic corollary of the right of association protected by Convention No. 87."[4]
Striker replacement (hiring workers to replace striking workers during the course of a strike) is not banned or restricted by international law. However, the ILO has concluded striker replacement, while not in contravention of ILO agreements, carries with it significant risks for abuse and places trade union freedoms "in grave jeopardy."[4][7] Regarding permanent replacement rather than just replacement for the duration of the strike, the ILO has held that "this basic right [to strike] 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."[8]
National laws
Strikebreakers outside the Chicago Tribune during a 1986 strike
Asia
Japanese labor law significantly restricts the ability of both an employer and a union to engage in labor disputes. The law highly regulates labor relations to ensure labor peace and channel conflict into collective bargaining, mediation and arbitration. It bans the use of strikebreakers.[9]
South Korea bans the use of strikebreakers, although the practice remains common.[10]
Europe
In most European countries, strikebreakers are rarely used. Consequently, they are rarely if ever mentioned in most European national labor laws.[5] As mentioned above, it is left to the European Union member states to determine their own policies.[6]
Germany has employment law that protects worker rights, but trade unions and the right to strike are not regulated by statute. The Bundesarbeitsgericht (the Federal Labor Court of Germany) and the Bundesverfassungsgericht (the Federal Constitutional Court of Germany) have, however, issued a large number of rulings which essentially regulate trade union activities such as strikes. Work councils, for example, may not strike at all, but trade unions retain an almost unlimited ability to strike. The widespread use of work councils, however, channels most labor disputes and reduces the likelihood of strikes. Efforts to enact a comprehensive federal labor relations law that regulates strikes, lockouts and the use of strikebreakers failed.[11]
The United Kingdom's laws permit strikebreaking, and courts have significantly restricted the right of unions to punish members who act as strikebreakers.[12]
The Netherlands does not explicitly forbid the practice of strikebreaking but has a law in place that prevents companies from hiring temporary employees through a temp agency.[13]
North America
Canada has federal industrial relations laws that strongly regulate the use of strikebreakers. Although many Canadian labor unions today advocate for even stronger regulations, scholars point out that Canadian labor law has far greater protections for union members and the right to strike than American labor law, which has significantly influenced the development of labor relations in Canada.[14] In Quebec, the use of strikebreakers is illegal,[15] but companies may try to remain open with only managerial personnel.[5]
Mexico has a federal labor law that requires companies to cease operations during a legal strike, effectively preventing the use of strikebreakers.[5]
As of 2002[update], strikebreakers were used far more frequently in the United States than in other industrialized countries.[16] The U.S. Supreme Court held in NLRB v. Mackay Radio & Telegraph Co.,304 U.S. 333 (1938) that an employer may not discriminate on the basis of union activity in reinstating employees at the end of a strike. The ruling effectively encourages employers to hire strikebreakers so that the union loses majority support in the workplace when the strike ends.[17] The Mackay court also held that employers enjoy the unrestricted right to permanently replace strikers with strikebreakers,[18] which in essence is, according to law professor Matthew Dimick, a permission "for firing employees for striking."[19] A Human Rights Watch report in 2000 concluded that the U.S. "is almost alone in the world in allowing permanent replacement of workers who exercise the right to strike."[5]
Strikebreaking is also known as black-legging or blacklegging. American lexicographer Stephanie Smith suggests that the word has to do with bootblacking or shoe polish, for an early occurrence of the word was in conjunction with an 1803 American bootmaker's strike.[20] However, British industrial relations expert J.G. Riddall notes that it may have a racist connotation, as it was used in this way in 1859 in the United Kingdom: "If you dare work we shall consider you as blacks..."[21] Lexicographer Geoffrey Hughes, however, notes that blackleg and scab are both references to disease, as in the blackleg infectious bacterial disease of sheep and cattle caused by Clostridium chauvoei. He dates the first use of the term blackleg in reference to strikebreaking to the United Kingdom in 1859. The use of the term blackleg for a strikebreaker was, however, previously recorded in 1832 during the trial of special constable George Weddell for killing and slaying Cuthbert Skipsey, a striking pitman, near Chirton, Newcastle-upon-Tyne.[22] Hughes observes that the term was once generally used to indicate a scoundrel, a villain, or a disreputable person.[23] However, the Northumbrian folk song "Blackleg Miner" is believed to originate from the 1844 strike, which would predate Hughes's reference.[24] The song is thought to originate from the 1844 Miners' Lockout in the North East Coalfield. David John Douglass claims that the term blackleg has its origins in coal mining, as strikebreakers would often neglect to wash their legs, which would give away that they had been working whilst others had been on strike.[25]
John McIlroy has suggested that there is a distinction between a blackleg and a scab. He defines a scab as an outsider who is recruited to replace a striking worker, whereas a blackleg is one already employed who goes against a democratic decision of their colleagues to strike, and instead continues to work.[26] The fact that McIlroy specified that this should be a "democratic" decision has led the historian David Amos to question whether the Nottinghamshire miners in 1984–85 were true blacklegs, given the lack of a democratic vote on the strike.:[27] "If we use McIlroy's interpretation can the Nottinghamshire miners of 1984-85 be seen to have been 'blacklegging' as against 'scabbing'? However, there is one contentious point in McIlroy's interpretation, the breaking of the 'democratic process'. It is because there was some debate over the democratic process in the 1984-85 miners' strike that the question is raised as to whether the working Nottinghamshire miners were scabs at all."
Strikebreakers have also been known as knobsticks. The term appears derived from the word knob, in the sense of something that sticks out, and from the card-playing term nob, as someone who cheats.[28]
1 2 Maastricht Treaty on European Union, Protocol and Agreement on Social Policy, February 7, 1992, 31 LL.M. 247, paragraph 13 under "Freedom of association and collective bargaining."
↑ Committee on Freedom of Association, Digest of Decisions of the Committee on Freedom of Association, 2006.
↑ Sugeno and Kanowitz, Japanese Employment and Labor Law, 2002; Dau-Schmidt, "Labor Law and Industrial Peace: A Comparative Analysis of the United States, the United Kingdom, Germany, and Japan Under the Bargaining Model," Tulane Journal of International & Comparative Law, 2000.
↑ Parry, "Labour Law Draws Roar of Rage From Asian Tiger," The Independent, January 18, 1997.
↑ Körner, "German Labor Law in Transition," German Law Journal, April 2005; Westfall and Thusing, "Strikes and Lockouts in Germany and Under Federal Legislation in the United States: A Comparative Analysis," Boston College International & Comparative Law Review, 1999.
↑ Ewing, "Laws Against Strikes Revisited," in Future of Labour Law, 2004.
↑ Getman, Julius G.; Kohler, Thomas C. (2005). "The story of NLRB v. Mackay Radio & Telegraph Co.: The High Cost of Solidarity". Labor Law Stories. Foundation Press. pp.49–50.
Committee on Freedom of Association. International Labour Organization. Digest of Decisions of the Committee on Freedom of Association. 5th (revised) ed. Geneva: International Labour Organization, 2006.
Dau-Schmidt, Kenneth Glenn. "Labor Law and Industrial Peace: A Comparative Analysis of the United States, the United Kingdom, Germany, and Japan Under the Bargaining Model." Tulane Journal of International & Comparative Law. 2000.
Ewing, Keith. "Laws Against Strikes Revisited." In Future of Labour Law. Catharine Barnard, Gillian S. Morris, and Simon Deakin, eds. Oxford: Hart Publishing, 2004. ISBN9781841134048
Hughes, Geoffrey. An Encyclopedia of Swearing: The Social History of Oaths, Profanity, Foul Language, and Ethnic Slurs in the English-Speaking World. Armonk, N.Y.: M.E. Sharpe, 2006.
International Labour Organization. Freedom of Association and Collective Bargaining: General Survey of the Reports on the Freedom of Association and the Right to Organise Convention (No. 87), 1948, and the Right to Organise and Collective Bargaining Convention (no. 98), 1949. Geneva: International Labour Organization, 1994.
Körner, Marita. "German Labor Law in Transition." German Law Journal. 6:4 (April 2005).
Logan, John. "How 'Anti-Union' Laws Saved Canadian Labour: Certification and Striker Replacements in Post-War Industrial Relations." Relations Industrielles/Industrial Relations. 57:1 (January 2002).
Parry, Richard Lloyd. "Labour Law Draws Roar of Rage From Asian Tiger." The Independent. January 18, 1997.
Riddall, J.G. The Law of Industrial Relations. London: Butterworths, 1982.
Silver, Beverly J. Forces of Labor: Workers' Movements and Globalization Since 1870. New York: Cambridge University Press, 2003. ISBN0521520770
Smith, Stephanie. Household Words: Bloomers, Sucker, Bombshell, Scab, Nigger, Cyber. Minneapolis: University of Minnesota Press, 2006. ISBN0816645531
Sugeno, Kazuo and Kanowitz, Leo. Japanese Employment and Labor Law. Durham, N.C.: Carolina Academic Press, 2002. ISBN0890896119
Westfall, David and Thusing, Gregor. "Strikes and Lockouts in Germany and Under Federal Legislation in the United States: A Comparative Analysis." Boston College International & Comparative Law Review. 22 (1999).
United States
Arnesen, Eric. "Specter of the Black Strikebreaker: Race, Employment, and Labor Activism in the Industrial Era." Labor History 44.3 (2003): 319-335 online.
Erlich, Richard L. "Immigrant strikebreaking activity: A sampling of opinion expressed in the National Labor Tribune, 1878-1885." Labor History (1974) 15: 529–42.
Getman, Julius G. and Kohler, Thomas C. "The Story of NLRB v. Mackay Radio & Telegraph Co.: The High Cost of Solidarity." In Labor Law Stories. Laura J. Cooper and Catherine L. Fisk, eds. New York: Foundation Press, 2005. ISBN1587788756
Human Rights Watch. Unfair Advantage: Workers' Freedom of Association in the United States Under International Human Rights Standards. Washington, D.C.: Human Rights Watch, 2000. ISBN1564322513
Isaac, Larry W., Rachel G. McKane, and Anna W. Jacobs. "Pitting the Working Class against Itself: Solidarity, Strikebreaking, and Strike Outcomes in the Early US Labor Movement." Social Science History 46.2 (2022): 315–348. online
Keiser, John H. "Black Strikebreakers and Racism in Illinois, 1865-1900." Journal of Illinois State Historical Society (1972) 65: 313–26.
Noon, Mark. " 'It ain't your color, it's your scabbing': literary depictions of African American strikebreakers." African American Review 38.3 (2004): 429–439.
Norwood, Stephen H. Strikebreaking & Intimidation: Mercenaries and Masculinity in Twentieth-Century America Chapel Hill, N.C.: University of North Carolina Press, 2002. ISBN0807827053online review
Rosenbloom, Joshua L. “Strikebreaking and the labor market in the United States, 1881–1894.” Journal of Economic History (1998) 58 (1): 183–205.
Smith, Robert Michael. From Blackjacks to Briefcases: A History of Commercialized Strikebreaking and Unionbusting in the United States. Athens, Ohio: Ohio University Press, 2003. ISBN0821414658
Tuttle, William J. Jr. "Some strikebreakers' observations of industrial warfare." Labor History (1966) 7: I93-96.
Tuttle, William J. Jr. "Labor conflict and racial violence: The black worker in Chicago, 1894-1919." Labor History (1969) 10: 408–32.
Whatley, Warren C. "African-American Strikebreaking from the Civil War to the New Deal." Social Science History 17.4 (1993): 525–558. online
A trade union or labor union, often simply referred to as a union, is an organization of workers whose purpose is to maintain or improve the conditions of their employment, such as attaining better wages and benefits, improving working conditions, improving safety standards, establishing complaint procedures, developing rules governing status of employees and protecting and increasing the bargaining power of workers.
Labour laws, labour code or employment laws are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship between employee, employer, and union.
Strike action, also called labor strike, labour strike in British English, or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became common during the Industrial Revolution, when mass labor became important in factories and mines. As striking became a more common practice, governments were often pushed to act. When government intervention occurred, it was rarely neutral or amicable. Early strikes were often deemed unlawful conspiracies or anti-competitive cartel action and many were subject to massive legal repression by state police, federal military power, and federal courts. Many Western nations legalized striking under certain conditions in the late 19th and early 20th centuries.
Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The interests of the employees are commonly presented by representatives of a trade union to which the employees belong. A collective agreement reached by these negotiations functions as a labour contract between an employer and one or more unions, and typically establishes terms regarding wage scales, working hours, training, health and safety, overtime, grievance mechanisms, and rights to participate in workplace or company affairs. Such agreements can also include 'productivity bargaining' in which workers agree to changes to working practices in return for higher pay or greater job security.
Union violence refers to violence committed by unions or union members to achieve political objectives, particularly during labor disputes. When union violence has occurred, it has frequently been in the context of industrial unrest. Violence has ranged from isolated acts by individuals to wider campaigns of organized violence aimed at furthering union goals within an industrial dispute.
Labor rights or workers' rights are both legal rights and human rights relating to labor relations between workers and employers. These rights are codified in national and international labor and employment law. In general, these rights influence working conditions in the relations of employment. One of the most prominent is the right to freedom of association, otherwise known as the right to organize. Workers organized in trade unions exercise the right to collective bargaining to improve working conditions.
A sit-down strike is a labour strike and a form of civil disobedience in which an organized group of workers, usually employed at factories or other centralized locations, take unauthorized or illegal possession of the workplace by "sitting down" at their stations. By taking control of their workplaces, workers engaged in a sit-down demonstrate their power, build solidarity among themselves, prevent the deployment of strikebreakers or removal of industrial equipment, and cause cascading effects on the chain of production within and between factories. However, sit-down strikes are illegal in the vast majority of countries, complicating their use.
Picketing is a form of protest in which people congregate outside a place of work or location where an event is taking place. Often, this is done in an attempt to dissuade others from going in, but it can also be done to draw public attention to a cause. Picketers normally endeavor to be non-violent. It can have a number of aims but is generally to put pressure on the party targeted to meet particular demands or cease operations. This pressure is achieved by harming the business through loss of customers and negative publicity, or by discouraging or preventing workers or customers from entering the site and thereby preventing the business from operating normally.
In the United States Senate, the La Follette Civil Liberties Committee, or more formally, Committee on Education and Labor, Subcommittee Investigating Violations of Free Speech and the Rights of Labor (1936–1941), began as an inquiry into a National Labor Relations Board (NLRB) investigation of methods used by employers in certain industries to avoid collective bargaining with unions.
Union busting is a range of activities undertaken to disrupt or weaken the power of trade unions or their attempts to grow their membership in a workplace.
"Blackleg Miner" is a 19th-century English folk song, originally from Northumberland. Its Roud number is 3193. The song is one of the most controversial English folk songs owing to its depiction of violence against strikebreakers.
Labor relations or labor studies is a field of study that can have different meanings depending on the context in which it is used. In an international context, it is a subfield of labor history that studies the human relations with regard to work in its broadest sense and how this connects to questions of social inequality. It explicitly encompasses unregulated, historical, and non-Western forms of labor. Here, labor relations define "for or with whom one works and under what rules. These rules determine the type of work, type and amount of remuneration, working hours, degrees of physical and psychological strain, as well as the degree of freedom and autonomy associated with the work." More specifically in a North American and strictly modern context, labor relations is the study and practice of managing unionized employment situations. In academia, labor relations is frequently a sub-area within industrial relations, though scholars from many disciplines including economics, sociology, history, law, and political science also study labor unions and labor movements. In practice, labor relations is frequently a subarea within human resource management. Courses in labor relations typically cover labor history, labor law, union organizing, bargaining, contract administration, and important contemporary topics.
Labor spying in the United States had involved people recruited or employed for the purpose of gathering intelligence, committing sabotage, sowing dissent, or engaging in other similar activities, in the context of an employer/labor organization relationship. Spying by companies on union activities has been illegal in the United States since the National Labor Relations Act of 1935. However, non-union monitoring of employee activities while at work is perfectly legal and, according to the American Management Association, nearly 80% of major US companies actively monitor their employees.
A wildcat strike is a strike action undertaken by unionised workers without union leadership's authorization, support, or approval; this is sometimes termed an unofficial industrial action. The legality of wildcat strikes varies between countries and over time.
A whipsaw strike is a strike by a trade union against only one or a few employers in an industry or a multi-employer association at a time. The strike is often of a short duration, and usually recurs during the labor dispute or contract negotiations—hence the name "whipsaw".
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), is a United States labor law case of the Supreme Court of the United States which held that workers who strike remain employees for the purposes of the National Labor Relations Act (NLRA). The Court granted the relief sought by the National Labor Relations Board, which sought to have the workers reinstated by the employer. However, the decision is much better known today for its obiter dicta in which the Court said that an employer may hire strikebreakers and is not bound to discharge any of them if or when the strike ends.
The history of union busting in the United States dates back to the Industrial Revolution in the 19th century. The Industrial Revolution produced a rapid expansion in factories and manufacturing capabilities. As workers moved from farms to factories, mines and other hard labor, they faced harsh working conditions such as long hours, low pay and health risks. Children and women worked in factories and generally received lower pay than men. The government did little to limit these conditions. Labor movements in the industrialized world developed and lobbied for better rights and safer conditions. Shaped by wars, depressions, government policies, judicial rulings, and global competition, the early years of the battleground between unions and management were adversarial and often identified with aggressive hostility. Contemporary opposition to trade unions known as union busting started in the 1940s, and continues to present challenges to the labor movement. Union busting is a term used by labor organizations and trade unions to describe the activities that may be undertaken by employers, their proxies, workers and in certain instances states and governments usually triggered by events such as picketing, card check, worker organizing, and strike actions. Labor legislation has changed the nature of union busting, as well as the organizing tactics that labor organizations commonly use.
Tripartism is an economic system of neo-corporatism based on a mixed economy and tripartite contracts between employers' organizations, trade unions, and the government of a country. Each is to act as a social partner to create economic policy through cooperation, consultation, negotiation, and compromise. In Tripartism, the government has a large role in the economy and engages in negotiations between labour unions and business interest groups to establish economic policy.
Pearl Louis Bergoff was an American strikebreaker noted for violent tactics from the early 1900s through the 1930s.
International labour law is the body of rules spanning public and private international law which concern the rights and duties of employees, employers, trade unions and governments in regulating Work and the workplace. The International Labour Organization and the World Trade Organization have been the main international bodies involved in reforming labour markets. The International Monetary Fund and the World Bank have indirectly driven changes in labour policy by demanding structural adjustment conditions for receiving loans or grants. Issues regarding Conflict of laws arise, determined by national courts, when people work in more than one country, and supra-national bodies, particularly in the law of the European Union, have a growing body of rules regarding labour rights.
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