With Responses From
May 22, 2017
7 Min read time
The Constitution contains the raw materials for a right to strike.
Organized labor is on the ropes across much of the world. That is both a cause and a consequence of the deteriorating economic position of workers vis-à-vis organized capital. But the situation is most dire in the United States, and that has something to do with our labor laws. For Pope, Bruno, and Kellman, the fault lies in both halves of American labor law: the basic bargaining framework established in the New Deal and the harsh restrictions on union activity that soon followed. On their account, the labor movement’s path forward may require turning its back on the former and defying the latter.
The Constitution contains the raw materials for a right to strike: freedom of speech, freedom of association, and freedom from forced labor.
Their diagnosis of the pathology of current labor law is convincing though jarring. Although the Wagner Act of 1935 was a ringing endorsement of workers’ rights to organize and bargain collectively, the Wagner model of representation—exclusivity within enterprise-based bargaining units based on majority rule—contained the seeds of its own demise.
First, the Wagner model gave employers means, motive, and opportunity to resist union organizing at the workplace level where employer power over employees was greatest. Second, exclusivity muffled the energizing force of inter-union competition for workers’ loyalty, and it enabled unions (in most states) to bargain for union security provisions that ensured a flow of dues even from disengaged workers. Third, when unions grew rapidly in size and clout in the 1940s, their unusual legal powers tacitly helped justify harsh restrictions on their most potent tactics, including secondary boycotts that sought to extend union power and solidarity beyond particular bargaining units. The Taft-Hartley constraints on collective action were part of the quid for the quo of labor’s legally enhanced powers.
Sharply restricted from leveraging collective power beyond discrete bargaining units, but empowered (and obliged) to represent even non-union members within those units, unions began to morph from activist associations of committed members into service providers for their constituents. The built-in flaws of the Wagner model together with the Taft-Hartley restrictions left unions ill-equipped to face the mounting challenges of deregulation, globalization, financialization, and technological change.
The question, then, is what workers and their organizations can do now to rebuild political and economic power. What they cannot do, say Pope, Bruno, and Kellman, is await federal labor law reform. Reform will come, if at all, only as a result of massive organizing and agitation, which will have to be mounted with the meager resources and under the harsh restrictions of existing law.
To be sure, existing law includes the “higher law” of the Constitution, and Pope, Bruno, and Kellman join generations of labor advocates in seeking to weave a constitutional charter of labor rights from the First Amendment freedoms of speech, assembly, and association, along with the Thirteenth Amendment prohibition on involuntary servitude. Those arguments have been undercut, however, by unions’ anomalous legal status and labor laws’ tacit quid pro quo: unions with the power and duty to represent non-members are both more and less than voluntary associations of citizens seeking to amplify their own individual voices. Exclusivity has thus played some role in shaping unions’ truncated constitutional protest rights.
Unions are ill-equipped to face the mounting challenges of deregulation, globalization, financialization, and technological change.
At nearly every turn, then, the prospects for union renewal seem to turn on abandoning the powers of exclusivity on which unions have become dependent. Worker organizations acting for their own engaged members are better positioned legally, politically, and organizationally—though not financially—to spearhead a resurgent labor movement.
Pope, Bruno, and Kellman also urge workers’ organizations to press for stronger constitutional and statutory rights by acting as if they had those rights. In particular, they encourage claiming and exercising a wider right to strike—massively, disruptively, and in defiance of current law.
The strike is labor’s signature form of protest. Union activists widely affirm that there is nothing like a strike to both demonstrate and forge the bonds of solidarity that build strong unions. And strikes do deserve greater legal protection. The Constitution contains the raw materials for a basic right to strike: as a concerted and expressive withdrawal of labor power, a strike simultaneously claims the freedom of speech, the freedom of association, and the freedom from forced labor. Those three constitutional pillars could support a broader right to strike—not an absolute right, but one that could challenge some of the harsh restrictions in American labor law. Today such a right seems like the stuff of fantasy, but stranger things have happened in the annals of constitutional history.
In the meantime, however, should the labor movement bet its future on a campaign of civilly disobedient strikes? Desperate times may call for desperate measures. But the risks are serious. Apart from the inevitable legal counterattack, which could deplete union coffers, such a campaign might also trigger a counterproductive public backlash. Public sympathy for disruptive labor unrest is highly contingent. Past surges of labor activism have led not only to the breakthrough Wagner Act, but also to the crippling Taft-Hartley restrictions. If labor’s civil disobedience remains civil, the public might rally to its support. But that still depends on who is making trouble about what.
Pope, Bruno, and Kellman open their essay with the December 2005 New York City transit workers’ strike, conducted in defiance of state law. But even apart from the onerous fines that followed, the union incurred the cost of public frustration with hellish daily commutes and the disruption of the busiest week of holiday shopping. Public employee strikes that stop trains from running, or keep children out of school, or leave streets unpatrolled can quickly exhaust whatever reservoir of latent public support workers enjoy. For private sector workers and their unions, too, defying legal restrictions on strikes will trigger injunctions, fines, civil damages, and dismissals. Even lawful strikers can lose their jobs to permanent replacements; that is one of the noxious features of American labor law that needs changing, but in the meantime it is a fact to be reckoned with.
If labor’s civil disobedience remains civil, the public might rally to its support.
Legal questions aside, there are daunting practical impediments to a strike-centered organizing strategy. The near-demise of the strike since 1980 reflects not only flawed laws but also grim economic realities. As Pope, Bruno, and Kellman observe, the unique power of the strike lies in workers’ ability to shut down production. But that is increasingly difficult to do in an era of hyper-mobile capital and globalized and fissured production networks.
Since the 1960s, workers have largely lost confidence in the utility of organizing and collective action to protect their interests. They are not wholly wrong. In our knowledge- and service-based economy, collective action is much less effective than it was in the auto and steel factories at the core of the industrial economy of the 1930s and 1940s. Organized labor faces a dilemma: It cannot become a stronger voice for workers without rebuilding workers’ own confidence in collective action—and that requires successful collective action. Workers losing their jobs in the course of losing strikes seems unlikely to advance the cause.
Winning, by contrast, begets confidence. The winningest strategies might be those that leverage the protections and sidestep the prohibitions of existing law. The Fight for Fifteen, for example, has used lawful tactics, including some small symbolic strikes, to gain wage hikes from employers, political leaders, and voters. It has done little thus far, as Pope, Bruno, and Kellman point out, to build union membership. But it has helped to restore the appeal of collective action and to show new ways of using collective action to achieve gains for workers.
If organized labor is to reverse its long slide toward irrelevance, it will need a portfolio of strategies tailored to specific regional and sectoral conditions, and an array of tactics, some of them noisy and disruptive. That may include some strikes that are currently unlawful but that should be protected on a better reading of the Constitution. But most settings will require strategies that are less risky and more likely to succeed.
Pope, Bruno, and Kellman are undoubtedly right that workers urgently need larger, stronger, and more energetic labor organizations to amplify their voices both at work and in politics. Even more is at stake, however, in a society riven by racial and ethnic divisions and nationalistic appeals. Right-wing populist appeals find fertile ground among workers suffering from economic insecurity and stagnation.
Unions at their best have a unique capacity to draw people together, to cultivate bonds of solidarity within diverse groups of workers, and to steer collective discontent into constructive and progressive channels. A rejuvenated labor movement could play a critical role not only in reclaiming for workers a larger share of the wealth they help to produce, but also in bridging the divisions and counteracting the poisonous resentments that are destroying the fabric of our democracy.