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

Shaun Richman January 13, 2016

Workers battle police in the streets of Minneapolis during the 1934 general strike. (National Archives and Records Administration / Wikimedia Commons)

On Decem­ber 14, Chica­go Teach­ers Union Vice Pres­i­dent Jesse Sharkey announced the results of the union’s strike autho­riza­tion vote. For the sec­ond time in three years, the union’s mem­ber­ship vot­ed over­whelm­ing­ly to strike if nec­es­sary. Our abil­i­ty to with­hold our labor is our pow­er,” declared CTU Pres­i­dent Karen Lewis on the eve of voting.

That axiom, that strikes are where unions derive their pow­er, is pret­ty out of favor these days. A wave of dis­as­trous strikes and lock­outs begin­ning in the Rea­gan era that helped deu­nion­ize much of Amer­i­can indus­try has left the sur­viv­ing labor move­ment skit­tish about the prospect of full-scale walk-outs. But bright spots like Fight for 15, Bar­gain­ing for the Com­mon Good and the Chica­go teach­ers strike have shown that work­ers can win strikes (if one defines vic­to­ry as work­ers walk­ing away from the ordeal feel­ing more pow­er­ful). Labor activists and lead­ers, par­tic­u­lar­ly as they antic­i­pate a vicious­ly anti-union Supreme Court deci­sion in Friedrichs v. CTA, have to fig­ure out more strate­gies to revive the strike weapon in our cur­rent era.

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 régime.

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.

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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