The right to strike is the foundation of all other workplace rights. Pope, Bruno, and Kellman, however, do not accurately describe the most important structural constraints on that right. Those did not emerge with the 1947 Taft-Hartley Act, as they suggest, but were already brewing present when the National Labor Relations Act was signed in 1935.
The civil rights law that we need is already in existence.
The original, unamended language of Section 13 of the 1935 Wagner Act stated: “Nothing in this Act shall be construed so as either to interfere with or impede or diminish in any way the right to strike.” Why did the new law anticipate such a concern?
Decades ago labor historian Kenneth Casebeer interviewed the principal draftsperson of the Act, Leon Keyserling. When Casebeer asked whether there was a specific reason for including the residual guarantee of the right to strike. Keyserling answered:
There was a definite reason. First, because [Senator] Wagner was always strong for the right to strike on the ground that without the right to strike, which was labor’s ultimate weapon, they really had no other weapon. That guarantee was a part of his thinking. It was particularly necessary because a lot of people made the argument that because the government was giving labor the right to bargain collectively, that was a substitute for the right to strike, which was utterly wrong.
Wagner’s concerns were not unfounded. Less than three years after Congress enacted the Wagner Act, including Section 13, a legal precedent was fashioned to constrain it. The Supreme Court held in NLRB v. Mackay Radio and Telegraph Co. (1938) that it was not an unfair labor practice for the employer “to replace the striking employees with others in an effort to carry on the business.”
A second source of constraints on the right to strike was also at work in the mid-1930s: the practice and policy of John L. Lewis, president of the United Mine Workers. Lewis financed the formation of the new industrial unions of the Congress of Industrial Organizations (CIO) and staffed many of those unions with UMW personnel. While Lewis is credited with organizing workers on an industry-wide basis, he also advertised the CIO to business leaders as a remedy for wildcat strikes and other industrial direct action. As Jeremy Brecher writes, the 1937 contract between General Motors and the UAW that ended the pivotal sit-down strike in Flint, Michigan, pledged that there would be “no suspension or stoppages of work . . . without the approval of the international officers of the union.” Union organizers or representatives were warned that they would be dismissed if they organized any stoppages without the consent of the international officers. Lewis stated bluntly: “A C.I.O. contract is adequate protection against sit-downs, lie-downs, or any other kind of strike.” Pope, Bruno, and Kellman blame the “sale of solidarity” on temptations that labor leaders have faced since Taft-Hartley under the system of exclusive representation. In fact, it always existed.
The best way for unions to overcome the constraints they face is to refuse to enter into contracts that contain a no-strike clause.
The legal precedent, and no strike contracts that labor’s leadership devised, remain the major constraints on the right to strike. The best way to overcome them is for labor organizations to refuse to enter into contracts that contain a no-strike clause. Pope, Bruno, and Kellman argue that the Taft-Hartley system of exclusive representation thwarts any such efforts. They call for an alternative. I think we have all the laws we need.
The authors make passing reference to Charles J. Morris’s 2005 book, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace. The book rightly argues that under Section 7 of the National Labor Relations Act, employers have a duty to bargain with labor organizations representing less than a majority of workers in a given workplace if no majority union exists. Section 7 states: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Morris, however, understands members-only unionism as a transitional stage toward exclusive representation by a single union. This view is evident throughout his book in repeated references to members-only collective bargaining when the “majority of the employees have not yet [emphasis added] designated an exclusive union representative.”
The Industrial Workers of the World (IWW) in the first quarter of the twentieth century—not to mention individual radicals such as John Sargent, first president of the large CIO local union at Inland Steel in East Chicago, Indiana, in the 1930s—viewed minority unionism quite differently. They believed that they were creating a new world within the shell of the old. They advocated a unionism that would exist permanently, with or without a contract with the employer, in which problems are settled as they arise, and the right to strike is never given up.
If we are clear about what we want, a variety of tools are spread out on the statutory workbench to help us get there.
We need not expend our energies on trying to pass a completely new law by a predictably hostile Congress. The remarkable language of Section 7, it seems to me, should remain our foundation and we should strive to use and strengthen it.
As I write in spring 2017 there are some indications that the National Labor Relations Board may recognize members-only unionism. In a case called Children’s Hospital and Research Center of Oakland and SEIU, United Healthcare Workers-West (2016), the NLRB ruled that, at least under certain circumstances, a union does not need to be the exclusive representative of a workplace for the employer to have a duty to bargain with it.
If we are clear about what we want, a variety of tools are spread out on the statutory workbench to help us get there. In addition to NLRB charges based on Section 7, my wife and I have utilized administrative complaints to OSHA and NIOSH; the legal concept of promissory estoppel to establish the existence of a contract between employer and members of a local union separate from the contract negotiated by a national union; retirees choosing a day and time for picketing a benefits administrator (such as Blue Cross) unless that administrator negotiates with the retirees’ bargaining committee; and so on. Wobbly history contains a variety of additional practices, such as walking off the job after working the number of hours of a desired workday (a practice also noted by Rosa Luxemburg in her account of the 1905 revolution in Russia).
Isn’t the civil rights law that we need already in existence?