of them contain incredibly restrictive “no strike” clauses. This routine of collective bargaining has become a part of the system that traps us.
The most effective unions actually build strike preparation into those long contract cycles. The entire last two years before expiration are marked by escalating tensions and actions both inside the workplace and outside that measure and demonstrate members’ readiness to strike if necessary. The long duration of these agreements is often a reflection of management’s exhaustion and desire to delay the next dance for as long as possible. But other unions bargain for long contracts because they fear a strike. Every expiration date represents a potential drive by the employer to bust the union or take away benefits. Long contracts represent the union’s desire for a truce in a one-sided class war.
What has changed is that, since the 1980s, employers have been exercising their legal right to permanently replace strikers. The law smiles on a boss who demands unacceptable cuts to wages, health insurance, and pensions. He can force a union to bargain over these mandatory subjects, hold firm to his demands and impose his “last, best” offer after the union has exhausted its legal strategies. Backed against the wall like this, the union members who choose to strike face the very real threat of losing their jobs to the scabs the boss has been busy recruiting to replace them.
Is it any wonder that strikes in this country have been so rare in recent decades?
And that is a huge problem, because our power as workers is still rooted in the work we do and our occasional refusal to do it. But how do we get workers to contemplate their power if they never see other workers exercising that power? How do you get eggs from chickens that have never seen an egg get laid?
This is where the no-strike clause becomes a straitjacket. Strike preparations by established unions have become a routinized kabuki theater. It’s only once a half-decade that a union puts the question of striking to its membership. The unions that can strike, ironically, don’t have to. The unions that can’t strike either don’t or do and get crushed.
So there’s very little in formal training or leading by example when it comes to teaching workers to go on strike. What that leaves is workers figuring it out for themselves. Workers take it upon themselves to engage in some kind of collective protest over an unpopular decision by their boss. This could be anything from deciding everyone’s going to go to lunch at the same time, or all clock out together at exactly 6 p.m., leaving the boss short-staffed and flat-footed.
This kind of spontaneous job action happens all the time, far more than anyone has measured or quantified. The problem is that if there is a union contract with a no-strike clause, the union is legally compelled to send a representative down to denounce the action, to tell the workers they must stop it or they will be fired. The union representative is pressed into service as the boss’s cop, telling the workers that they must obey the boss’s law!
Among the many anti-union Taft-Hartley amendments to the National Labor Relations Act act is Section 301, which lays out punishments for unions that strike “illegally.” A union that strikes in violation of its contractual commitment can be ordered to pay back three times the amount of money that the employer claims it lost during the protest. If a union alleges that an employer committed an unfair labor practice—by, say, firing a union leader—it must work its way through the NLRB investigatory process for perhaps a year or more before the NLRB issues a ruling and then takes an intransigent employer to court. But if an employer complains that a union is striking during the terms of a contract, they get to go straight to court and ask a judge to make the union pay them millions of dollars.
Remember when the Rockettes were signed up to be one of the few entertainment acts at the pathetic presidential inauguration festivities of the pussy-grabbing reality television personality? Many dancers in the troupe publicly declared they would refuse to dance for the serial sexual predator. Their union leadership had to rush to put out a press release stressing their legal obligations to dance on command.
This was an incredibly dispiriting moment, one that likely caused allies to ask, “Why even bother having a union?” But if the union hadn’t swiftly denounced the protest its members had declared, they likely would have been sued for millions. And a nod and a wink with a “We really think you should reconsider this” would not have been sufficient legal protection for the union. Work like hell to shut down the protest or pay through the nose is essentially the legal standard here.
Now contrast that with the New York Taxi Workers Alliance, whose members were able to swiftly declare and organize a spontaneous work stoppage at JFK airport on the night that the Trump administration rolled out its initial ban on refugees from seven majority-Muslim nations. The NYTWA doesn’t have a no-strike clause. They don’t even have a contract, or any collective bargaining rights at all as the National Labor Relations Board deems them to be self-employed independent contractors.
There are clearly benefits to being free of the restrictions of a no-strike clause. But getting free of the tyranny of no-strike clauses is no easy feat for unions that are regulated by the post–Taft-Hartley labor law regime. Courts have actually ruled that unions that have somehow managed to resist signing away their protest rights by agreeing to a no-strike clause have nevertheless surrendered them by agreeing to grievance procedures that include the recourse to neutral third-party arbitration.32
Management’s Rights
Union contracts cede tremendous decision-making power to bosses. A typical “Management’s Rights” clause goes something like this:
All of the rights, powers, prerogatives, and authority of the management of the Employer’s operations are retained by the Employer and remain exclusively within the rights of management. These include, but are not limited to, the right to direct, transfer, hire, discipline and discharge employees as well as determine the objectives and priorities of the company.
It is understood and agreed that the rights of management shall be deemed only limited by the express provisions of the Agreement and not by implication or construction. The failure of the Employer to exercise its full rights of management or discretion on any manner or occasion shall not be a precedent or binding on the Employer, nor the subject or basis of any grievance nor admissible in any grievance proceeding.
Any of the rights, powers, or authority that the Employer has prior to the signing of this Agreement are retained by the Employer, except those specifically abridged, delegated, granted to others, or modified by this Agreement or by any supplementary agreements that may hereafter be made.
Language like this was a reasonable concession when collective bargaining agreements were one-year truces that settled a few grievances and set the wages for the year. It’s still sometimes reasonable in those rare bargaining relationships where the concept of “labor-management partnership” isn’t a joke, where management accepts the presence of a union as a reality of life and tries to get along for the sake of maintaining a smooth operation. But when most employers are engaging in a one-sided class war, this sort of broad management’s rights clause should not be treated as a routine of bargaining. It certainly should not be allowed to limit a union’s vision of what workers want, or to lower members’ expectations of what’s winnable or to limit our power.
Today, it is common for union negotiators bargaining a first contract to actually propose the management’s rights clause! The routine logic for this is that, of course, there’s going to be a management’s rights clause, so we might as well propose one that doesn’t give away the shop. But I’ve also seen these union negotiators sign off on the management’s rights clause long before the rest of the contract is settled. Historically, signing away the boss’s duty to bargain over changes was the last item on the table until all grievances were settled and the money was good enough.
Moreover,
