Supreme Court, Labor Law and the Deskilling of Teaching

The strike is labor's most powerful weapon. It is the most direct and forceful way to pressure employers to cede to workers’ demands. Strikes have become increasingly rare over the past few decades, mostly because of unions’ increasingly dependence on political action (e.g., lobbying, voting as a block, financing campaigns). However, there have been several laws and Supreme Court decisions that have limited when and how strikes could be undertaken or that increased the risks to workers.

In 1938, the Supreme Court ruled in NLRB v. Mackay Radio (NLRB is the National Labor Relations Board) that employers had the legal right to permanently “replace” striking workers. According to a recent piece in Truth Out, there was nothing in the National Labor Relations Act (NLRA) of 1934 (nor any other law) that gave employers this right. Rather, the court just figured that it was a right of bosses to can their workers when they were troublesome.

In reality, the NLRA was written to reduce labor unrest and aid employers in their quest for profits by limiting when and how strikes could occur and providing legal recourse for employers when they created too much disruption to profits. The Supreme Court merely interpreted the law in way that was consistent with that of the ruling class and that was favorable to their businesses.

Regardless of the rationale, this right of employers severely restricts workers’ right to strike under NLRA. The threat of being permanently replaced makes striking a very risky endeavor, particularly for the majority of workers who depend on their income to support their families and themselves. This threat is often sufficient to make workers think twice and choose not to strike in the first place.

However, the threat of replacing workers is only credible when two conditions can be met: replacement workers must be available and ready to work and the striking workers are not able or willing to stop them. The latter condition has typically been met through the use of force. The first condition occurs automatically for so-called unskilled work during times of high unemployment. Pretty much anyone can work a cash register, so firing all cashiers at a grocery chain is not a big risk for employers. In contrast, for “skilled” workers, like teachers, the threat is much less credible. So long as teachers are required to have a valid credential, which requires a bachelor’s degree, plus a year or two of professional training, school districts cannot permanently replace striking teachers and still keep the schools operating.

The employing class is working on a solution to this dilemma (despite the fact that teachers, like most workers, have become increasingly reluctant to strike). By deskilling the teaching profession, free market education reformers are reducing the need for highly trained, credentialed teachers. For example, pretty much anyone can proctor a standardized test or monitor a room full of children seated at computers engaged in online curriculum or distance learning. The more schools utilize such methods, the easier it becomes to replace relatively well paid, unionized professionals with low paid, non-unionized workers.