It seems almost matter of course nowadays: when a union goes on strike, the employer exercises the right under labor law to bring in replacement workers and keep the business going.
The strategy has been used -- often with remarkable success -- against work forces ranging from air traffic controllers to bus drivers. The New York Daily News is now putting out a newspaper largely with replacement writers and craftsmen, more than five weeks after nine unions went on strike.
When longshoremen strike the Port of Baltimore, business suffers. The governor may suggest in anger that the workers be replaced, but it never has happened. In an age when organized labor seems to be losing its grip, the International Longshoremen's Association appears to be as strong as ever.
For example, ILA Local 953 struck the Port of Baltimore Monday and yesterday. Some members of other ILA locals, which have their own contract with employers, continued to work but the disruption cost the port money and business.
Why didn't the employers try to replace the striking workers?
The answer is found in a complex web of laws, court rulings and contract agreements that reflect the unique aspects of port work and the history of the 60,000-member ILA.
"I deal with all of them, with Autoworkers, Teamsters, Steelworkers, but I would say I feel more frustrated with less leverage when facing the ILA than with any other union," said A. Samuel Cook, a labor law specialist and senior partner with Venable, Baetjer & Howard in Baltimore.
"The things in their labor contracts are unlike anything else in industry," said Cook, who has opposed the union on behalf of clients in the past but was not involved in this week's strike.
In essence, striking workers at Baltimore are protected against replacement by a national ILA contract signed by most of the world's major ship lines. That agreement provides for fines if the ship lines allow non-ILA workers to handle their cargo containers at an ILA port, even during a strike.
"It's unique in that the ILA is one of very few unions that have contracts with companies that go up and down the coast," said Bernard J. Sevel, a local attorney who has represented ILA locals in the past but is not part of this week's dispute.
The rule against non-ILA members handling cargo is contained in a package of agreements signed in the late 1960s in exchange for the union agreeing to allow automation on the marine terminals. Known as the "container rules," they apply only to cargo carried in standardized cargo containers, not grain, coal or other commodities. Many of the rules have been upheld in Supreme Court cases.
Also, Sevel said, replacing ILA members is sometimes difficult because much of the work is dangerous and requires skill.
L "One slip can create a heck of a lot of damage," Sevel said.
A shipper trying to avoid a strike and move his cargo through another port faces a different problem: ILA rules prohibit members from handling cargo diverted from a port where members are striking. But the documents sometimes can be altered to disguise the port the cargo was supposed to go through, said one port business executive.
Gov. William Donald Schaefer has threatened to replace striking ILA members with state workers. However, this would be nearly impossible under liability laws. At one time, longshoremen injured on board a ship had wide latitude to win money in lawsuits against the ship owners.
A 1972 law greatly limited the ship owner's liability in cases involving longshoremen. But federal and state employees are exempted from the law's limits. Ship lines probably would avoid Baltimore if it was the only port without the liability protection, Sevel said.
Cook said management also is reluctant to oppose the ILA because of the history of violence in ILA strikes. He said waterfront strikes tend to be costly and require difficult security precautions.
Though he was critical of management giving up so much in past contract negotiations with the ILA, he said he understood the unique pressures of the shipping industry. The cargo is often valuable and perishable, and strikes quickly become economic disasters, he said.
"They have management at their mercy," Cook said.