A memo sent to all consultants about how to prevent strikes, September 15, 197

Ogden, Warren C

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A memo sent to all consultants about how to prevent strikes, September 15, 19786474b1f06_02.pdf: 5 downloads, before Oct. 1, 2020

Ogden, Warren C.

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Memorandum on Preventing Needless Strikes, 1978

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Cornell University ILR School 
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Leonard Scott Union-Prevention and Counter-
Union Campaign Consulting Files, 1966-2013 
Kheel Center for Labor-Management 
Documentation & Archives 
9-15-1978 
Memorandum on Preventing Needless Strikes, 1978 
Warren C. Ogden 
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Memorandum on Preventing Needless Strikes, 1978 
Abstract 
A memo sent to all consultants about how to prevent strikes, September 15, 1978 
This warren ogden memos is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/leonardscott/
20 
) TO: 
FROM: 
DATE: 
RE: 
ALL CONSULTANTS 
WARREN C. OGDEN 
September 15, 1978 
PREVENTING NEEDLESS STRIKES 
Each year, literally thousands of needless strikes are 
undertaken by unions. The cost in los s to both employer 
and employees from such needless strikes is a major concern 
for any economy. At our level, West Coast regards it as 
one of its major objectives to prevent such needless 
strikes. 
Sometimes it is difficult to establish when a strike 
is 11 needless 11 • One definition might be a strike in which 
the union concludes the strike with the same benefitsthat 
it would have gotten had no strike ever occurred. Yet 
such strikes occur time and time again. Often, in fact, 
it is known before negotiations even commence that the 
union will settle for a specific amount. The employer 
offers that specific amount but the union decides to 
strike anyway. At the conclusion of the strike, the 
employees are not better off than they were at the be-
ginning. But either union or management has "proved 
something". Such strikes can occur as a result of per-
sonal animosity between the union and the employer. They 
can occur because the union is determined that the em-
ployer will comply with a 11 pattern 11 in negotiations. 
They can occur because the union's trust fund requires 
that the employer pay under the trust fund monies which 
the employer feels could better be paid directly to the 
employees. They can occur because the employer has, for 
one reason or another, crossed the union business 
agent. 
There are a number of devices which management has 
traditionally used to prevent such needless strikes. 
One of those, which we at West Coast have often used, 
is the implementation of a wage adjustment to the 
level that is anticipated to satisfy the employee just 
before the conclusion of the contract term. A typical 
situation might be one in which a 3-year contract was 
in existence. The contract was to terminate Decembe r 31 
of a given year. The employer, after initial negotiations 
with the union, recognized that it would be necessary to 
"settl e11 on a 7 percent wage increase in order to get 
another contract. Yet it was also known that the union 
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intended to strike regardless of the employer proposals 
because the union demanded that 2 percent of that wage 
increase go into trust fund allocations. But the employer 
considered the union trust fund an imprudent investment 
of employee monies. Accordingly, there is no argument 
that the ultimate terms will result in a 7 percent in-
crease to the employees. Yet the union was going to 
strike over the allocation of those funds because it had 
an institutional objective of supporting its trust fund. 
In such a situation, the employer would often implement 
the 7 percent wage increase on Decerrt>er 1. The errployees 
would be satisfied, there would be no reason to strike, 
but the union, undoubtedly, would be missed. 
There are certain prerequisites to implementing a 
wage increase during contract terms. Normally speaking, 
the contract prevents the employer from implementing 
such a wage increase. However, as employers become 
somewhat more sophisticated in their labor negotiations, 
they commence to add "management rights" and "zipper" 
clauses to the contract. The management rights clause 
often proposed by West Coast is over 2-1/2 pages long. 
Quite often, however, management unknowlingly forgets 
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_.- ----·- - - - - - - --- - - - - - - --- - -•--· - -iir" ,~,a -
the need for management rights or a zipper clause on the 
theory that this is needless 11 legalistic 11 language. But 
if the employer wished to prevent the strike in the situa-
tion we have posited above, the best way to do is to have 
a zipper clause. Such a clause says that for the term 
of the contract the union has foregone any right to en-
gage in collective bargaining. It also states, in many 
cases, that the employer is free to pay wages in excess 
of those in the contract term, at any time, without 
notification to the union. 
Use of such a management technique was recently 
called into question by an NLRB decision in a case 
called Harvey's Wagon Wheel, 236 NLRB No. 217, 98 LRRM 
1501 (1978). In that case, the Board found that while 
the employer was privileged to change the terms and 
conditions of employment within the meaning of the 
contract, since the employer was desirous of preventing 
a strike under such circumstances, he nonetheless com-
mitted an unfair labor practice. The Board reported 
that "whether or not the uni on waived its right to 
bargain about increases and employee benefits during 
the term of the contract, Respondent (the company) 
-4-
was still subject to the provisions of Section 8(a)(l) 
of the Act. It could not lawfully grant benefits in 
order to induce employees to abandon their support for 
the union." Of course, what the Board was talking 
about was the fact that the employer had implemented 
the wage increase to prevent a strike from occurring. 
The result of this decision of the National Labor 
Relations Board is to force us to go back to one of our 
more typical techniques. This is the use of a combined 
notice and opportunity to bargain and/or waiver. In the 
first situation, we send the union notice that we intend 
to raise wages to a particular level and ask them if they 
wish to bargain about it or whether they wish to allow 
us to go ahead. Normally speaking, an intelligent union 
has no real choice, regardless of how far into the con-
tract they are, but to allow the employer to implement 
such a wage adjustment. If they refuse it, the employees 
can be informed and the effect on the union will be felt. 
Alternatively, the employer can send on to the union a 
11 waiver11 whereby the union agrees to waive any and all 
rights it has to file a charge in the event the employer 
introduces a wage increase. On several occasions, we 
-5-
have had unions sign such waivers which should protect 
the employer against unfair labor practice charges. How-
ever, if the union is sticky about it, we treat it the 
same way we do the notice and opportunity to bargain. 
There are several other techniques that may be 
used for preventing a strike which could and should be of 
interest to consultants. We have often noticed that fac-
tors other than the implementation of a wage increase 
have a dramatic effect on whether a union can encourage 
employees to stri ke. For instance, it is much easier 
to get employees to strike during the summer than the 
winter. It is also much easier to get employees to 
strike during hunting season, presuming they are male, 
than during the Christmas season. Accordingly, the ter-
mination date of a contract is very important in deter-
mining whether or not employees are likely to strike. 
An employer who is wise, and a consultant who gives 
good counsel, will always suggest the placement of con-
tract termination dates at some period when it is less 
likely that the employees in that individual locale will 
strike. Further, if there is something that the employer 
can do prior to the strike to encourage the employees to 
-6-
stay in, that usually should be done. For instance: during 
hunting season consider renting a hunting lodge for the use 
of employees who are not on strike. During the summer, 
consider the possibility of a vacation park for the 
employees and their families. The alternatives are 
endless. It is up to the consultant to tailor the in-
dividual facts to the potential benefit necessary to 
keep the employees from engaging in a needless strike. 
The employer also has at his option certain, some-
what coercive, techniques. One of the most commonly 
used is temporary or permanent replacements. While 
WCIRA has never established a set policy on how to use 
these, we might suggest that the consultant consider 
the following scenario. If a strike date is set for 
October 1, on September 15, the consultant gets in 
touch with all of the employees of the employer, pre-
sumably in a group meeting. He indicates that negoti-
ations are not going particularly well and that there 
is reason to believe that the union may be interested 
in calling a strike vote. He indicates that the com-
pany is doing its best to increase its benefits and 
intends to do everything it can to conform to l egi ti mate 
-7-
employee requests. However, certain of the union's 
demands appear to the employer to be irresponsible 
and accordingly the employees may become involved in 
a hazardous undertaking - namely a strike. The consul-
tant explains that in order that there be no confusion, 
the employees should know exactly what will happen prior 
to their undertaking such an enterprise. The consultant 
explains that it is the intent of the company to continue 
to operate. In order to do so, replacements have been 
arranged. The employees will be given a 5-day grace 
period after the time of the commencement of the strike 
to reconsider their decision to strike. Nothing will 
happen during that 5 days. At the conclusion of the 
5-day period, the employees who are out on strike will 
receive a letter in the mail which will tell them that 
they have been temporarily replaced and, wherever possible, 
the name of the replacement will be given. It is often 
a nice touch for the employee to know who is replacing 
him. Next, another 5-day grace period will be enacted 
during which the striking employee will only be temp-
orarily replaced. However, at the conclusion of the 
second 5-day period, or 10 days after the strike is 
-8-
commenced, the employees will receive a note in the 
mail telling them that they have been permanently re-
placed by a particular employee. Again, names are 
often helpful. The consultant will explain to the 
employees that the purpose of all this is to give the 
employees accurate, up-front knowledge of what will 
occur and also to provide them for an opportunity to 
consider whether they wish to be employees who are 
employed or 11 employees 11 who have been permanently re-
placed. Remember, strikers, even if replaced, are 
still employees within the meaning of the NLRA. 
Another variation on this same theme is the use 
of a poll of the employees. Under very limited cir-
cumstances, a consultant may conduct a po 11 of emp 1 oyees 
prior to the commencement of a strike to determine 
whether or not the employees wish to strike. The sole 
purpose that an employer can have for such a poll is to 
detenni ne how a strike wil 1 adversely affect production. 
This will allow the employer to arrange for temporary 
or permanent replacements. While we have used this on 
several occasions very effectively, it is a sensitive 
procedure and consultation with one of the WCIRA attar-
-9-
_.. I ,. 
neys is required before you undertake such an action. 
Another technique, also a variation on the theme, 
is the so-cal led 11 shadow work force 11 routine. This 
involves simply bringing in employees in certain cate-
gories who perform no work but are called in to train 
on certain jobs. The individual who is to be a part 
of the shadow work force is introduced to the employees 
on the line. The employees on the line are told that 
the individual in the shadow work force is being trained 
for the handling of the equipment and the skills that 
are necessary to perfonn the employee's job. Nothing 
is ever mentioned about the possibility that the in-
dividuals in the shadow work force are work replace-
ments. They are not necessarily kept on the payroll. 
But they will tend to send a rather distinct message 
to the employees prior to the time that the union tries 
to get a strike vote. 
In conclusion, I should point out two factors. 
Strikes are merely elections by another name. If you 
are an effective campaigner in an election, you should 
be an effective campaigner in a strike situation. This 
is particularly true when you consider that you have many 
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... 
advantages in a strike that you do not in a typical 
campaign. You usually have quite a bit of time to 
prepare. You usually have considerable flexibility 
about implementation of wage increases. And, of course, 
you have the ability to replace. On the other hand, in 
every strike situation, the stakes are higher than they 
are in an election. If a consultant is found to have 
committed a serious violation of the Act while preparing 
for a strike, the Board may well regard the strike as a 
"unfair labor practice" strike as against an economic 
strike. The result of that will be that any employees 
who have been either permanently or temporarily replaced 
must be immediately reinstated at the conclusion of the 
strike. In other words, a great deal of the effect may 
be lost. 
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Memorandum on Preventing Needless Strikes, 1978

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