A strikebreaker (also called scab or knobstick) is a person who works despite an ongoing strike. Strikebreakers are usually individuals who are not employed by the company prior to the
trade uniondispute, but rather hired prior to or during the strike to keep production or services going. "Strikebreakers" may also refer to be workers (union members or not) who cross picket lines to work.
Strikebreakers are a worldwide phenomenon, often occurring wherever workers go on strike or engage in job actions that slow down or stop the delivery of goods and/or services. However, strikebreakers are used far more frequently in the
United Statesthan in any other industrialized country. [Norwood, "Strikebreaking and Intimidation," 2002.]
Social Charter of 1961was the first international agreement to expressly protect the right to strike.Human Rights Watch, "Unfair Advantage: Workers' Freedom of Association in the United States Under International Human Rights Standards," 2000.] However, the European Union's Community Charter of the Fundamental Social Rights of Workerspermits EU member states to infringe on the right to strike. [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."]
The right to strike is not expressly mentioned in any convention of the
International Labor Organization(ILO). Among basic international human rights documents, only the International Covenant on Economic, Social and Cultural Rightscontains a clause protecting the right to strike. However, like the Social Charter of 1961, the Covenant permits each signatory country to abridge the right to strike. [International Covenant on Economic, Social and Cultural Rights, Article 8 (4).]
The ILO Committee on Freedom of Association and other ILO bodies have, however, interpreted all core ILO conventions as protecting the right to strike as an essential element of the
freedom of association. 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."International Labor Organization, "Freedom of Association and Collective Bargaining: General Survey of the Reports..." 1994.]
The ILO has also 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." [Committee on Freedom of Association, "Digest of Decisions of the Committee on Freedom of Association," 2006.]
In most European countries, strikebreakers are rarely used. Consequently, they are rarely if ever mentioned in most European national labor laws. In the
United Kingdom, strikebreaking is permitted, and courts have significantly restricted the right of unions to punish members who act as strikebreakers. [Ewing, "Laws Against Strikes Revisited," in "Future of Labour Law," 2004.]
Although German employment law strongly protects worker rights, trade unions and the right to strike are not regulated by statute. The Bundesarbeitsgericht (the
Federal Labor Court of Germany) and 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, while 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. Recent efforts to enact a comprehensive federal labor relations law which regulates strikes, lockouts and the use of strikebreakers failed. [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.]
In the United States, the
National Labor Relations Actappears to bar strikebreakers as an interference in the right to strike. However, 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. The "Mackay" Court also held that employers enjoy the unrestricted right to permanently replace strikers with strikebreakers. [Getman and Kohler, "The Story of "NLRB v. Mackay Radio & Telegraph Co."," in "Labor Law Stories," 2005.]
Canada, however, federal industrial relations laws strongly regulate the use of strikebreakers. Although many Canadian labor unions today advocate for even stronger regulations, scholars point out that Canadian labor law provides far greater protections for union members and the right to strike than American labor law (which has significantly influenced the development of labor relations north of the border). [Logan, "How 'Anti-Union' Laws Saved Canadian Labour: Certification and Striker Replacements in Post-War Industrial Relations," "Relations Industrielles/Industrial Relations," January 2002.] In Quebec, the use of strikebreakers is banned, and companies may only attempt to remain open using managerial personnel. South Koreabans the use of strikebreakers, although the practice remains common. [Parry, "Labour Law Draws Roar of Rage From Asian Tiger," "The Independent," January 18, 1997.] Japanese labor law significantly restricts both an employer's and a union's ability to engage in labor disputes. Japanese labor law highly regulates labor relations to ensure labor peace and channel conflict into collective bargaining, mediation and arbitration. Japanese labor law bans the use of strikebreakers. [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.]
Strikebreakers are also known by the derogatory term "scab."
In the early 20th century, strikebreaking was known as "black-legging"—a term borrowed from the
Russian socialist movement. [Smith, "Household Words: Bloomers, Sucker, Bombshell, Scab, Nigger, Cyber," 2006.]
*Committee on Freedom of Association. International Labor Organization. "Digest of Decisions of the Committee on Freedom of Association." 5th (revised) ed. Geneva: International Labor 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. ISBN 9781841134048
*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. ISBN 1564322513
*International Labor 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 Labor 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).
*Norwood, Stephen H. "Strikebreaking and Intimidation." Chapel Hill, N.C.: University of North Carolina Press, 2002. ISBN 0807827053
*Parry, Richard Lloyd. "Labour Law Draws Roar of Rage From Asian Tiger." "The Independent." January 18, 1997.
*Silver, Beverly J. "Forces of Labor: Workers' Movements and Globalization Since 1870." New York: Cambridge University Press, 2003. ISBN 0521520770
*Smith, Robert Michael. "From Blackjacks to Briefcases: A History of Commercialized Strikebreaking and Unionbusting in the United States." Athens, Ohio: Ohio University Press, 2003. ISBN 0821414658
*Smith, Stephanie. "Household Words: Bloomers, Sucker, Bombshell, Scab, Nigger, Cyber." Minneapolis: University of Minnesota Press, 2006. ISBN 0816645531
*Sugeno, Kazuo and Kanowitz, Leo. "Japanese Employment and Labor Law." Durham, N.C.: Carolina Academic Press, 2002. ISBN 0890896119
*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).
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