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Here is a dilemma facing anyone thinking about the right to strike. There are highly skilled workers who are hard to replace. For them to carry off a strike with a reasonable chance of success, those workers simply need to stop working. It takes some discipline and organization, but they can carry off a strike without interfering with anybody else. For instance, last year, nearly 40,000 Verizon technicians went on strike. They stayed out for seven weeks and, despite Verizon’s best efforts, they were so hard to replace that eventually they won a favorable contract.
This is an economy where the many are made to work for the few. Workers have a right to resist that even with coercive tactics.
Now consider workers in high labor supply sectors who are easier to replace: Amazon warehouse and Walmart retail workers, McDonald’s food preparers and health care aids, truckers and food processors. These jobs account for a massive share of employment and they are predicted to add the largest number of jobs over the next ten years. They tend to be the lowest paid, have the longest hours, and involve the worst working conditions. For these workers to go on strike, they need to prevent others from taking their jobs, prevent managers from hiring replacements, or otherwise stop work from taking place. That usually means exercising some kind of force or coercion: like sit-downs or mass pickets. They also involve more acts of solidarity, such as sympathy strikes, secondary boycotts, and general public support.
The dilemma is the following: the worst-off workers typically cannot exercise their right to strike with any reasonable chance of success without violating some deeply held, legally enshrined principles of a liberal society. Sit-downs, mass pickets, sympathy strikes, secondary boycotts, and similar acts violate some basic economic and civil liberties, including property rights, freedom of contract, and managerial authority. Occupying a factory or blocking access to a workplace are not just incidental ways of interfering with employers, managers, and replacement workers. These acts strike at the core of what is normally meant by “private property” and “freedom of contract.” These strike tactics also tend to violate other liberal freedoms, such as freedom of association and personal security, not to mention the prevailing sense of law and order.
So the workers who have the strongest claim to a right to strike also must use it in a way that puts them in deep conflict with the society in which they live. Thus we arrive at an impasse: either the best-off workers are the only ones who can exercise their right to strike with any reasonable chance of success, or we need some arguments about why the worst-off workers are justified in using disruptive and coercive strike tactics as part of the legitimate exercise of their right to strike.
Open confrontation with the law is a more permanent state of affairs for workers who want to claim their rights.
Pope, Bruno, and Kellman acknowledge this problem when they say that it should be a “top priority to support and publicize civil disobedient exercises of workers’ rights wherever and whenever they happen, especially where workers are violating restrictions on the rights to organize, strike, or act in solidarity.” I agree with this but I fear it leaves important parts of the argument unstated and therefore vulnerable. American labor law does not just place enormous and unfair constraints on the exercise of labor rights because of Supreme Court mischief, employer assaults on the Wagner Act, or historic distortions of the Constitution. Those constraints also reflect some basic truths about liberal morality and the nature of power in a capitalist society. Liberal societies do not permit private actors to interfere with others’ exercise of their basic civil and economic liberties. In a capitalist society, those basic liberties necessarily include freedom of contract, private property, and managerial authority.
There is no room, then, in a liberal capitalist society for adequate legal protection of the right to strike for the mass of exploited workers. Civil disobedience is not just a temporary feature of labor struggles that are demanding stronger labor rights. Open confrontation with the law is a more permanent state of affairs for workers who want to claim their rights in our class-divided society. Pope, Bruno, and Kellman, though undoubtedly sympathetic to this point, do not come out and say it, which leaves ambiguous just what the politics of reclaiming the true right to strike involves. It will not fit neatly—and not without major conflict—within the liberal, constitutional framework of our society.
There is no reclaiming of the right to strike without a clear critique of just what is exploitative and oppressive about this economy and the so-called economic liberties that the law protects. We need to show that the economy is not based on freedom but oppression: poultry factory workers wearing diapers to work because they don’t get adequate breaks; Amazon warehouse workers forced to wait half an hour in security lines before leaving work without being paid for that time; Walmart workers not knowing what hours they will work week-to-week and being locked inside the building overnight while they restock shelves; understaffed and over-scheduled nurses forced to care for more patients than is possible or else be fired; union-busting employers who use every legal and illegal trick in the book; low-wage workers suffering as much at $15 billion dollars in wage theft annually. This is an economy where the many are made to work for the few, in workplaces typically characterized by unchecked managerial power and by stultifying conditions. Workers have a right to resist that oppression by going on strike, even if it means using coercive tactics such as sit-downs, mass pickets, or even sabotage.
Without a political party that will link local strikes to a critique of the economy, it is unclear how to sustain a politics of continuous, radical labor disobedience.
That critique needs to go hand in hand with the articulation of a new political economy, one that explains what real economic freedom would look like. There is, in turn, no way to do that without a political organization that can bear that ideology—something along the lines of a political party. Such a party would not look like the ones we have now. It would be explicitly a workers’ party and organized democratically so that the workers it represented could hold it to account. But without a political organization that can link local strikes to the right to strike for all workers—and then link that right to a critique of the economy as a whole—it is unclear how to sustain a politics of continuous, radical labor disobedience with some chance of winning public sympathy. And without some sense that reclaiming the right to strike will necessarily involve us in a deep and extensive clash of principles, then we cannot develop the arguments and political structures needed to successfully reclaim that right.
I do not think Pope, Bruno, and Kellman would disagree with much of what I say. But they do not say it. They leave up for grabs whether the right to strike of which they speak can be a part of our current constitutional and economic order, or whether it involves a fundamental challenge. And since reclaiming the right will have to involve that fundamental challenge—at least if it is to reach the majority of easily replaced, exploited workers—there is nothing to be gained by being coy about that fact. It must be openly embraced, argued for, and made the basis of political organizing. That organizing will be extremely difficult, involve numerous setbacks, and take a long time. But Pope, Bruno, and Kellman are right to say that it is also indispensable. In this economy, there is no way to survive unless organized, assertive workers use their collective power to claim a little more freedom and a fairer share of the benefits they produce.
Alex Gourevitch is Assistant Professor of Political Science at Brown University. He is the author of From Slavery to the Cooperative Commonwealth: Labor and Republican Liberty in the Nineteenth Century.
Unions are being strangled by laws that block workers from organizing, striking, and acting in solidarity. Becoming a rights-based movement is the only way to save labor.
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