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By J.B. Wogan June 12, 2012

Still no sign of action

Ever since a 1938 U.S. Supreme Court decision, employers have held the right to replace workers on a permanent basis if the workers strike for economic reasons, such as better wages. As part of a package of labor proposals, candidate Barack Obama said he would work to ban the permanent replacement of employees who strike.

The proposed ban would extend the same protections to workers that they already receive for striking against unfair labor practices, included in the National Labor Relations Act of 1935. The permanent-replacement power became a hot button issue for unions in the 1980s and 1990s, when they claimed that employers used replacements -- and the threat of replacements -- to discourage strikes more often than any time since the 1930s.  

As we noted before, President Bill Clinton signed an executive order in 1995 prohibiting most companies from winning contracts if they permanently replaced workers in labor disputes. A federal appeals court struck down the order in 1996. Democrats in the House and Senate also introduced bills repeatedly throughout the 1990s that would have banned the permanent replacement of workers who strike, but none became law.

Last time we visited this promise, we found no evidence that the Obama administration had worked to implement such a ban. This remains true. Nothing in our online searches and interviews suggests the administration ever pursued the ban.

If we find action, we'll revisit this. But for now, we rate it a Promise Broken.

Our Sources

Searches on,,,

Interview with Nancy Cleeland, director of the Office of Public Affairs at the National Labor Relations Board, June 12, 2012, The Obama-Biden Plan: The Economy

National Labor Relations Board v. Mackay Radio & Telegraph Co. (1938)

U.S. General Accounting Office, Labor-Management Relations: Strikes and the Use of Permanent Strikes in the 1970s and 1980s, January 1991

The Yale Law Journal, Permanent Replacements, Presidential Power, and Politics: Judicial Overreaching in Chamber of Commerce v. Reich, Charles Thomas Kimmett, Vol. 106, No. 3, Dec. 1996

U.S. House Legislative Analysis Section, U.S. House Subcommittee on Labor and Occupational Safety, House Bill 4501 with committee amendments: No Permanent Replacement of Striking Workers, April 17, 1997

By Alex Holt January 4, 2010

No sign of action

To appeal to labor unions during the campaign, Barack Obama promised to "work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods."

It was a bold promise, but we've seen no action so far. A search of the Web sites for the White House and the Department of Labor reveal no progress -- nor any sign that Obama has even mentioned the issue.

The practice of employers hiring permanent replacement workers during a strike has always been a sore spot for labor unions. The National Labor Relations Act of 1935 prohibits employers from firing workers who strike. However, in 1938 the Supreme Court ruled that employers could hire permanent replacements if it was for "economic reasons."

In 1995, President Bill Clinton signed an executive order that stopped companies that hired permanent replacements from winning federal contracts. But that order was struck down by a federal appeals court.

To fulfill Obama's promise, Congress probably would have to pass a law, according to James Sherk, the Bradley Fellow in Labor Policy at the Heritage Foundation, a conservative think tank. "I have seen no interest from Washington in engaging in that fight," Sherk said. We checked Thomas, the Web site that tracks congressional legislation, and couldn't find any bills that would change the law.

Without a whisper on the issue from Obama since Election Day, we're rating this promise Stalled.

Our Sources

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