Strikes: Civil Contributions or Criminal Disturbances?

Feb. 14, 2005
During the week leading up to Bush’s lavish inauguration party last month, members of the union called UNITE HERE threatened to strike during the inauguration at 14 expensive hotels in Washington, D.C. They were working without a contract, and the hotels were stonewalling. The hotels were also about to be packed with fur coats, jewelry, and cowboy boots – all of it covering wealthy well-manicured white people. The workers won a contract with an increase in pay, maintained health care coverage, and increased pension money. But was what they had threatened to do fair and admirable?

What do you think of when you think of a strike, a work-stoppage, a picket line? If your thinking follows that of the “mainstream” media, you think of strikes as annoyances that interfere with the rights of consumers, delay travel plans, cancel sporting events, and otherwise cause trouble, possibly including violence — and do so for no clear reason. The corporate media rarely explains why anyone is on strike.

If your thinking follows that of the jurists and legislators who have so greatly restricted the right to strike in the United States, you think of strikes as a violation of the property rights of owners. Like abortions, strikes are something you’re not quite prepared to ban, but anything that will reduce their frequency is acceptable because the rights they protect are of no concern in comparison to the rights of someone else.

If your thinking follows that of some Marxists, you think of strikes as an institutionalized form of revolution, “violent” in its rupture of the rule of law.

If your thinking follows that of various right-wing pundits and scholars (and this is also a way of thinking that finds its way into the corporate media) you condemn strikes as quite simply “violent”, as an extraordinary and unacceptable exception being made for particular people, as a dangerous interference in the “free market” by labor unions, and as an illegal breaking of a contract.

If your thinking follows that of many workers unhappy with their jobs, workers who wish they could join a union and workers who are union members, you see strikes only marginally differently from the viewpoints listed above. You’re not against them, you see them as a tool for improving workers’ situations, but you’re not entirely sure it’s appropriate to talk about them while the “homeland” is “at war”.

But for other workers, and particularly if you’re a member of an active and democratic union, if a union is an important part of your life, if you help shape its direction, if you have a vision of social justice and workplace justice as a movement worth sacrificing for, or if you’ve studied the history of struggles for progressive politics, chances are you see strikes as something to be proud, not ashamed, of participating in. You see strikes as an important civic duty, one we will always need.

Who’s right? Are strikes a relic of the past or a key to a better future? And why don’t we see as many of them anymore?

To begin with let’s try to address the question of whether strikes are acceptable in a civilized society. Are strikes violent? Well, violence can develop on some picket lines, initiated by one side or the other. But there is no more sense in calling the very act of striking violent than there is in calling the cuts in Bush’s proposed budget violent. The war on Iraq is violent. Child abuse is violent. Rape and murder and assault are violent. A strike may or may not be revolutionary, may or may not be threatening to owners’ bank accounts, but it is misleading to call it violent.

Do strikes violate contracts? Well, for the most part strikes are demands for contracts that do not exist. Workers strike after waiting months or years for owners to agree to negotiate a contract, or after reaching an impasse in negotiations. As one of the two parties to contract negotiations, workers and the unions they form are not a “special interest” interfering in matters. A strike is a rather aggressive negotiating technique. But it can be defined as a negotiating technique, because strikes and the threat of strikes have been shown to be necessary for raising wages, among other accomplishments.

Other aggressive negotiating techniques include firing and discriminating against union leaders, holding mandatory anti-union meetings for all employees, holding one-on-one anti-union meetings between supervisors and employees, banning union staff from the workplace, planting spies in union meetings, transferring union-friendly workers to isolated locations, establishing company unions, announcing a blanket refusal to negotiate with an independent union, threatening to close a facility or move it to China, taking legal steps to endlessly delay a union election or revelation of the results or negotiation of a contract, and threatening to permanently replace any worker who strikes. All of these practices are routine, most of them are legal, none of them are punished with the goal of deterrence, and an entire industry exists for the purpose of developing these and other tools for busting unions.

More fundamentally, if an extraordinary exception is being made for particular people in our legal system, it is the exception made for the minority of Americans who own companies and employ workers. Their property rights have been given precedence over the majority’s rights to tools necessary if we are ever to acquire significant property. Employers are given tremendous powers over the lives of others, and these include the power to restrict workers’ freedom of association. Violations of the right to organize occur every 23 minutes in the United States, according to American Rights at Work.

Bush has, of course, taken many steps to damage unions, and these have included the prevention of strikes at airlines and at docks. But restrictions on the right to strike didn’t begin with him. Some categories of workers have no legal right to strike under U.S. law. And the President is authorized to step in and lock out workers for reasons of national security (which need never be defined or explained). Strikes are permitted only outside the workplace – no sit-down strikes. But, of course, you can also get into trouble for blocking sidewalks or streets.

In 1937, the Supreme Court ruled that sit-down strikers could all be fired. The workers in the case involved saw their sit-down as self defense. The owners had transferred the union president to an isolated workplace. They had established a company union. They had said they would never bargain with the workers’ union under any circumstances. They had planted an instigator in union meetings who was encouraging an outside strike so that the company could bring in scabs. And the workers had been waiting five months without receiving any response to charges they’d filed with the NLRB. (Of course, these days the notion of expecting any sort of action out of the NLRB in a mere 5 months seems nutty, but it was — and still is — arguably a reasonable amount of time to wait before taking action of self-defense in the situation described.)

In 1938 the court gave owners the right to hire permanent replacements for any strikers. This right was limited in its effectiveness by the ability of picket lines to block scabs from getting in. Labor leaders’ move away from striking in the 1960s and 70s, and Ronald Reagan’s replacement of striking air traffic controllers in 1982, helped make this course of action more common.

In rulings from 1938 and 1940 the court ruled that the NLRB cannot act to deter any unfair labor practices. At most it can remedy harms after the fact. Thus an owner who fires a worker for supporting a union can at most be fined, after years of delay, for any back pay owed the worker, minus any pay he or she has earned at another job. They cannot be fined an amount of money that might conceivably deter them from firing the next worker. One of every 18 private sector workers who supports organizing is fired or retaliated against, according to James Gray Pope of Rutgers Law School, who discusses these cases in a paper called “How American Workers Lost the Right to Strike.”

Further rulings permitted mandatory anti-union group and one-on-one meetings, bans on pro-union talk during work time, and bans on union staff from the workplace. Also illegal in the land of the free are strikes to support fellow workers, strikes that are not engaged in for one’s own immediate economic gain. Oddly, as Pope points out, owners are permitted to close facilities as punishment for union organizing as long as the owner is NOT motivated by economic gain. Owners can act out of solidarity for each other, but workers cannot.

How can this be changed? Well, one thing unions can do is take aggressive action when it appears likely to work. Unfair laws are a problem only if an owner dares to use them. If the labor movement is going to survive, it cannot wait for fairer laws before organizing.

Labor can also create a massive strike fund, a proposal that has been made by a number of unions during the current debate over the future of labor.

And, of course, labor needs to keep fighting for better labor laws, including the Employee Free Choice Act, a bill with great support in both houses of the U.S. Congress but little hope of being brought to a vote by Republican leadership. It would require acceptance of card-check organizing, impose significant penalties on owners who violate the right to organize, and limit the delays possible between forming a union and negotiating a first contract. Card check organizing, in which 50 percent plus one of the workers in a workplace sign cards to create a union, is under threat of elimination by both the National Labor Relations Board and a Republican bill in Congress. This would leave NLRB elections as the only official way to form a union, a process that has become unworkable, with endless delays and abuses permitted or corrected by a slap on the wrist. Increasingly it may become necessary for workers to engage in “recognition actions” – protests and picket lines – in order to create a union, which may then have to strike to win a contract.

Further legislation, probably including repeal of the Taft Hartley Act of 1947, is needed to eliminate unfair limitations on the right to strike.

For either the organizing or the legislative lobbying to succeed, the labor movement will have to be less about services to its current members, and more about building a social movement that fights on behalf of health care, education, and retirement security for all workers. Victories on these issues will ultimately benefit our whole economy, whether today’s robber barons understand that or not.

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