As Attacks on Unions Continue, Bringing Back the Strike May Be Our Only Hope

How strikes became a ​“bad idea”

Ironically, the seeds of labor’s 1980s defeats were planted during its best seasons for growth in the 1930s. During the wave of sit-down strikes that grew union membership by leaps and bounds, Congress passed the National Labor Relations Act in 1935. The purpose of the act was to establish an orderly process for certifying unions and compelling employers to bargain in good faith with them. The plain language of the law also made it illegal to fire an employee for union activity.

But in two of the early Supreme Court cases that established the constitutionality of this law, the court casually cut into workers’ rights to their jobs.

In a 1939 case called NLRB vs. Fansteel Metallurgical, the court ruled that the NLRB cannot compel the reinstatement of a fired worker who broke the law, even if his illegal activity was part of an otherwise protected union activity like striking. Sit-down strikes, the physical occupation of someone else’s property to prevent their business from operating without you, was simply not going to be a protected activity under this new labor law regime.

In an earlier case, 1938’s NLRB v. Mackay Radio, the Supreme Court stripped workers of their unalloyed right to return to their jobs after a strike. The Court held that not only was an employer allowed to replace striking workers to keep a business going during a strike, but that they could keep the scabs on the job after the strike was over. The strikers would not be fired, per se, as an employer would have to make provision to recall former strikers as vacancies occur.

The McKay germ lay dormant for over 40 years. There were thousands of strikes in the United States all the way through the 1970s. And while plenty of bosses hired plenty of scabs, those scabs were almost always let go after a strike. To take a worker’s job away for standing with her union was viewed as almost un-American.

Or at least it was, until no less of an American than the sitting President, Ronald Regan, fired the striking air traffic controllers in 1981, sending a strong signal to industry: have at it..

McKay was weaponized by the Phelps-Dodge Corporation in 1983. The copper mining company bargained its Steelworkers local to impasse over drastic cuts in pay, benefits and working conditions — essentially daring the union to strike. Exploiting the bad economic times, the company had no problem importing a permanent replacement workforce, for whom even the reduced pay was far better than most jobs available. After 12 very ugly months, the scabs voted to legally decertify the union.

This Phelps-Dodge blueprint is how much of the deunionization of American industry occurred in the Reagan-Bush (and Clinton) era. Unions that survived frequently did so by capitulating to management’s giveback demands.

Tellingly, the AFL-CIO’s 1990s version of labor law reform was not for organizing rights, like card check, but a bill to undo the McKay doctrine and ban the permanent replacement of strikers. In 1994, the year that the Workplace Fairness Act effectively died, there were 14 major strikes involving over 108,000 workers. By 2012, there were only four, and they involved less than 15,000 workers.

And perhaps most telling of all: Unions’ most recent attempt at labor law reform, the Employee Free Choice Act, did not include any provision on strikes. We have abandoned the strike weapon.

Well-planned strikes serve as inspiration

Not every union has abandoned strikes. The last Chicago teacher strike served as the strongest example in years for everyday workers of the power of a well-planned work stoppage.

On paper, it made no sense that a teachers union could wage a successful strike in 2012. Teachers unions had suffered from years of well-funded political attacks that cast them in the media as villains who prioritize ​“adults’ interests” over ​“students’.” The city’s power brokers, Mayor Rahm Emanuel in particular, were crying broke and exploiting civil rights rhetoric in their give-back demands. And there were thousands of teachers in charter schools and unemployed and recently retired teachers in the Chicago area who could have been recruited as replacements if they viewed the Chicago Teachers Union as striking against the public interest.

Instead, the Chicago public overwhelmingly viewed the CTU as striking for the common good. Partly, this was thanks to two years of deep and meaningful community organizing and partnerships that the union diligently pursued knowing there would likely be a strike. And partly, this was thanks to the union bargaining for school resources demands that resonated beyond just their membership.

For the last really big strike that got even non-union workers thinking about their power, you have to go all the way back to 1997. The Teamsters — who, like the CTU at the local level, had elected progressive reformers to their national leadership — also spent years preparing for a planned strike against UPS. These sort of well-planned strikes are crucial for getting workers, those in unions and those without, to think about power and the exercise of it.

In his book Only One Thing Can Save Us, labor lawyer Thomas Geoghegan expresses a preference for one-day strikes, which he has seen used effectively by the hotel employees union. In such a strike, a union signals its intent to return to work after 24 hours, allowing strikers to impact the employer’s business but protecting them from permanent replacement.

Joe Burns, also a labor lawyer, has written extensively on labor’s need to bring back the strike weapon. In his Reviving the Strike, he scorns one-day ​“publicity strikes” as no substitute for ​“an effective traditional strike,” which he defines as one that aims to halt production.

Burns’ contribution gets us thinking not just about the need to get more strikes going in this country, but to really think through how to define a ​“successful” strike. But his mantra-like focus on ​“halting production” is strangely limiting. As a result of union busting and globalization in manufacturing, most of the new organizing and strategic contract campaign action is in healthcare, education and the service industry. A Chicago teacher would likely rankle at the thought of their strike ​“halting production.” (What, after all, does their employer aim to produce? One hopes it is citizens and scholars, but fears it is docile workers and future prisoners.)

My own union work so far has been in hotels, home healthcare and education. I have worked on only a small number of work stoppages, most of a limited duration. In my experience, employers are working from such an ossified playbook that unions can get a lot of mileage out doing the last thing that the boss and his lawyers expect.

For example, hotel employees can cost the company more money by not striking on the day the company expects, thus costing them the expense of paying and lodging scabs as well as the continued payroll costs of the union members who stayed on the job an extra day. 

I don’t prescribe a perfect form of strike. American workers will not learn to strike again from articles like this or books like Burns’ and Geoghegan’s, which are really more for labor nerds and bookish organizers — they will only learn to strike by watching contemporary examples of workers striking. Since it’s hard to raise chickens without eggs, even one-day ​“publicity strikes” have an educational value.

But many thousands times more working people will be educated by the next Chicago Teachers strike. The teachers will halt production, but, perversely, that will save their employer money. Chicago will continue to collect taxes and be freed of the burden of compensating its teachers for a few weeks. (In fairness, Joe Burns expounds upon this unique aspect of public sector strikes in his follow-up book, Strike Back.)

To be effective, the CTU must take the students and parents who will be disrupted and bring that disruption to the doorsteps of Rahm Emanuel, Illinois Gov. Bruce Rauner and Chicago’s unelected school board. To win for the working class, they must continue to loudly proclaim, as CTU President Karen Lewis did, ​“Your power is your ability to withhold your labor.”

Possible paths forward

Our challenge is to inspire even non-union workers to think about their power and how to exercise it using the tools we have on hand: a union movement with miniscule density in only a handful of service and public sector industries largely led by staff who have precious little personal experience with leading job actions. We should be clear about how deep this deficit is.

One of the most promising labor projects of the moment is Bargaining for the Common Good. This is an effort by public sector unions in Washington, Oregon, California, Minnesota, Wisconsin, Illinois and Ohio to align their bargaining demands with each other and with community demands around progressive taxation, affordable housing, youth incarceration and government transparency.

These community demands fall well outside a union’s scope of bargaining and are therefore technically illegal. But as long as the unions also have demands that are within their legal scope (not hard to do when employers refuse to pay people what they deserve), then the unions can press the community’s case. This is a brilliant way of getting community to see unions’ fights as their own and of building worker and community power — and the next Chicago teachers strike will likely be the highest profile test of the theory this side of the Mississppi.

What follows could be bigger. A number of public and private sector unions in Minnesota have contract expirations in 2016. Their bargaining demands for the common good are focused not just on their individual employers but also on the largest employers in the state: Target and Wells Fargo. This is the potential for the closest thing we’ve seen in a while to a general strike (something Minnesota has a history of doing).

Another promising project is the Fight for 15. Some have dismissed the series of rolling one-day strikes for increases in the minimum wage and organizing rights as mere P.R. stunts. But there is something deeply radical and significant at play here. Workers who don’t even technically have a union are proving their value — and their power — to their bosses by withholding their labor. And the response from the general public is, at worst, a sort of patronizing ​“Well, good for them” but more often something a bit closer to ​“Go get ​‘em!”

Just two short years ago, it would have been inconceivable to most union strategists that the lowest paid and most vulnerable workers would be willing to risk it all as these fast food workers have done. But, then, one is reminded of the old Dylan lyric: ​“When you got nothing, you got nothing to lose.”

The great potential of Fight for 15 is that unorganized workers see reflections of themselves in the strikers and begin to fantasize about what a job action could look like at their workplace. This is the perfect complement to well-planned and executed strikes by established labor unions.

The labor wars of the 1980s and 1990s were won by bosses who caught their unions by surprise. The unions that are still here are survivors who have an obligation, both to their continued survival and to the hope of inspiring a greater wave of organizing, to meaningfully plan for job actions that can win in every round of bargaining.

Those who toil in alternative forms of worker representation — the workers centers, advocacy groups and non-majority unions — should strategize and experiment in job actions that help their members and anyone watching and drawing inspiration feel a sense of their own power and agency.

And the rest of labor, starting with the AFL-CIO, should send a strong signal that strike plans are back by incorporating a ban on permanent replacements in the successor to the Employee Free Choice Act and as part of a broader ​“right to your job” movement. For those public sector unions who are most threatened by the pending Friedrichs decision, a wave of ​“free speech” strikes to both celebrate and protest the dubious new rights that the Supreme Court threatens to give them.