Last week, Kellogg’s workers rejected a contract offer from management that could have ended a two-month strike at four cereal plants. Their decision to stay on the picket lines for a better deal elicited an ugly threat from Kellogg’s: to permanently replace the strikers with other workers.
Kellogg’s escalation lured President Joe Biden into the fray. In a rare presidential rebuke of a company in the midst of a labor dispute, Biden condemned Kellogg’s move as “an existential attack on the union and its members’ jobs and livelihoods.”
It’s routine for companies to bring in replacement workers — “scabs,” in union parlance — to try to maintain production during a strike. But can the company just get rid of the striking workers for good?
The use of permanent replacements is a complicated area of the law. But in general, employers do have the right to permanently replace striking workers to keep their business running, under the 1938 Supreme Court decision in Mackay Radio. After radio technicians in that case ended their strike, the court ruled that the company was not obligated to cut the replacement workers loose and give the strikers their jobs back.
But the right is not absolute. Subsequent case law has clarified that employers can only permanently replace workers who are on strike for “economic” reasons — i.e., trying to improve their wages and benefits — and not because they’re protesting their employer breaking the law.
“The bite of the permanent replacement doctrine is the employer has no obligation to discharge the replacement workers when the strike is over.”
– Benjamin Sachs, Harvard Law School
The Bakery, Confectionery, Tobacco Workers and Grain Millers’ International Union (BCTGM), which represents the 1,400 Kellogg’s workers on strike, has filed unfair labor practice charges against the company in recent weeks, accusing it of violating workers’ rights during the work stoppage, according to National Labor Relations Board filings. Such charges could lay the groundwork for a legal fight over the lawfulness of Kellogg’s using permanent replacements.
Nor can employers legally bring in permanent replacements simply as a means of crushing the union and purging supporters from the workplace. But it’s difficult to prove an employer’s motives in calling in replacements.
Kellogg’s would not say whether it has hired any permanent replacements yet in response to a HuffPost inquiry. On its jobs site, the company is advertising openings expressly to fill the roles of strikers on a permanent basis. If the company did hire permanent replacements, it would only be obligated to offer strikers their old jobs back when positions opened up down the road.
BCTGM spokesperson Corrina Christensen said in an email that Kellogg’s threat to bring in permanent replacements is a “direct attack on workplace democracy and worker rights.”
“Moreover,” she added, “this is Kellogg’s attempt to rid itself of the union.”
A Powerful Weapon
The mere threat of permanent replacements has been a weapon for businesses for decades, used to tilt the balance of power in a strike or even stop one before it begins.
The prospect of a strike is supposed to force both sides to make sacrifices that help reach an agreeable deal. If the workers walk off the job, the employer will lose production and the workers will lose pay until they’ve both had enough and compromise. But the possibility of losing one’s livelihood to a permanent replacement forces a striker into a new set of calculations.
“The bite of the permanent replacement doctrine is the employer has no obligation to discharge the replacement workers when the strike is over to make room for returning strikers,” said Benjamin Sachs, a labor law professor at Harvard Law School. “That means if the replacement never leaves, you can never get your job back.”
As labor lawyer Brandon Magner recently noted in a Twitter thread, it wasn’t until around the 1980s that employers used the threat of permanent replacements broadly and made good on it. The possibility of forever losing one’s job, Magner said, “is now a staple talking point in organizing campaigns,” with employers highlighting it to scare workers out of unionizing.
Biden’s criticism of the permanent replacement doctrine is not new for a Democrat or even for a sitting president. Recognizing how the law weakened workers’ leverage, many Democrats tried in the 1990s to amend the National Labor Relations Act to forbid employers from hiring permanent replacements for strikers.
The object lesson for that effort was a bitter and unsuccessful strike by workers at the International Paper mill in Jay, Maine, in 1987 and 1988. The company had hired permanent replacements for the strikers and eventually got rid of the union through a decertification campaign, showing how valuable the Mackay doctrine can be for employers.
In his book about the strike, “The Betrayal of Local 14,” labor law scholar Julius Getman told the story of how the permanent replacement of strikers ruined lives and relationships, forever altering a community that was built around its primary employer. Getman argued that a law that was supposed to protect workers had betrayed them.
The ability to use permanent replacements “frequently undercuts the desire of the employer to avoid a strike,” Getman explains in the book. “It gives the employer a motive not to reach an agreement but rather to force a strike, so that it can permanently rid itself of union supporters and very possibly of the union itself.”
Bill Clinton campaigned for the presidency in 1992 in part on stripping employers of this ability to hire permanent replacements. The same year, Democrats in the House passed a bill to do just that, but supporters in the Senate failed to overcome a GOP-led filibuster. A similar effort died two years later with Clinton in the White House, in part due to insufficient support among Southern Democrats in the upper chamber.
Clinton went ahead and issued an executive order in 1995 aimed at preventing companies that hire permanent replacements from receiving federal contracts. This attempt at using the government purse strings to help workers went nowhere, however, because business groups sued and a judge blocked the order.
Unions are still trying to get Democrats to change a law they believe grossly favors employers during strikes. Progressives have been trying to rally support on Capitol Hill for the Protecting the Right to Organize Act, a sweeping labor law reform bill that would, among other measures, bar companies from permanently replacing workers.
But like the legislative efforts in the ’90s, it still hasn’t managed to win uniform Democratic support and overcome a likely GOP filibuster.
‘The Last Arrow In Their Quiver’
The Kellogg’s strike revolves around a two-tier system that offers newer, “transitional” employees a lower compensation scale than veteran “legacy” employees. Workers have said they are determined to rid the company of that system, or at least chip away at it. The company’s proposals would maintain and possibly expand the system over time.
Such two-tier systems not only offer unequal pay for equal work, they also undermine the solidarity within unions by dividing workers into separate classes. Many workers believe Kellogg’s ultimate goal is to weaken the union itself, and they see the threat of permanent replacements as part of the strategy.
But Trevor Bidelman, a fourth-generation Kellogg’s worker and president of the local union in Battle Creek, Michigan, has his doubts about whether the company could pull off permanently replacing them, legally or practically.
The union has filed unfair labor practice charges against the company accusing it of bargaining in bad faith and “direct dealing,” or bypassing the union to bargain directly with workers. If the NLRB finds merit in such charges, the work stoppage could be considered a strike over unfair labor practices, for which permanent replacements would be illegal.
“The company is able to use that threatening rhetoric to influence the collective bargaining process. It is just wrong.”
– Kellogg’s worker and union leader Trevor Bidelman
Bidelman said he’s confident the charges will stick. But he also said it would be difficult for Kellogg’s to permanently replace strikers since the company has been struggling to hire, especially amid a tight labor market. He estimates that the Battle Creek plant is running at 10% capacity right now. Kellogg’s declined to say what the production levels are at the facilities under strike.
“We’ve all been in these plants while they’ve been trying to hire for years using us as trainers,” Bidelman said. “For it to be feasible long-term, it would be 10 months to a year before those plants were running at any remotely efficient level.”
Bidelman has been explaining these factors to members to reassure them, but he said the prospect of permanent replacements naturally worries people. He believes Kellogg’s issued the threat to weaken workers’ resolve and pressure them into accepting a lesser deal than they would have otherwise.
“The company is able to use that threatening rhetoric to influence the collective bargaining process,” he said. “It is just wrong.”
If Kellogg’s follows through on its promise, workers could find an ally in Biden’s recent appointments to the National Labor Relations Board.
Jennifer Abruzzo, the board’s new general counsel, has quickly shaped an aggressive agenda that could tip some parts of the law back into workers’ favor. And even before Kellogg’s said it would hire permanent replacements, Abruzzo declared publicly that she would like to revisit the legal doctrine on the issue.
Under NLRB precedent, an employer doesn’t have to demonstrate that it was necessary to hire permanent replacements in order to continue operating. But in a memo (and a recent Twitter thread), Abbruzzo’s office said she would look at whether “a change is necessary to the permanent replacement doctrine,” suggesting she might try to make it harder for companies to get away with it.
If Abruzzo were to charge an employer like Kellogg’s with illegally hiring permanent replacements, such a case could end up before the NLRB’s five-member board. The body now holds a 3-2 Democratic majority due to Biden’s appointments and is far more worker-friendly than it was during the Trump years.
Dan Osborn, a mechanic and union leader at the Kellogg’s plant in Omaha, said he was thrilled to see Biden take the company to task. After the president issued his statement last week, his union saw a noticeable uptick in contributions to its financial relief fund for strikers, Osborn said.
But Osborn noted that a statement is just a statement, and he hopes people in a position of power will do more to help Kellogg’s workers.
“I think Kellogg’s is shooting the last arrow in their quiver,” Osborn said. “They’re trying to win this by scaring us and trying to get people to cross the picket line. And that’s how we lose — if we falter and everyone starts going back to work without a contract.”