Legislative Memo



S.772 (Marcellino) / A.8231 (John)



Replacement Employees



February 6, 2004


This bill would amend Sections 704 and 706 the Labor law and prohibit employers from hiring permanent replacement workers during a lawful strike or lockout. It would also authorize backpay and other remedies to affected strikers.

The Business Council opposes this bill because it:

Interferes with the collective bargaining balance
For decades, a balance in collective bargaining influence has been maintained between employers and employee unions because employees had the right to withhold their services through a strike and employers had the right to continue the operation of their business through the hiring of temporary or permanent replacement workers. This balance kept bargaining a serious business between the two parties and pressured each side to come to an agreement, knowing the consequences if a strike or lockout was the outcome of failed bargaining. Just as the right to strike is the union's principal tool to pressure an employer to reach an agreement, the right to permanently replace striking workers is the employer's only tool to counter such pressure.

Encourages surface bargaining
This bill, while claiming to correct an imbalance in collective bargaining, will, in fact, penalize employers for simply taking actions that have been legal for decades. Rather that correcting an imbalance in collective bargaining, it would destroy any balance in collective bargaining existing between the parties. With pressure off of the union and its members to seriously negotiate and compromise during a strike, delay and surface bargaining would be the strategy used to get what they want. There would simply be no serious economic consequence to the union and its members for doing otherwise.

Prohibiting an employer from permanently replacing striking workers would destroy the delicate labor relations balance that has existed for decades and seriously impair the ability of an employer to do business in New York State.

For these reasons, The Business Council opposes this legislation and respectfully urges that it not be reported by the Senate Labor Committee.