Ending Labor Peace
“Labor Peace”
The “No Strike” clause has become the bête noire of the labor Left — and not without cause.
Under “No Strike” clauses, unions are unable to legally strike during the lifetime of a contract. Usually, clauses similarly prohibit management from engaging in lockouts: both parties cede economic weapons for the duration of the agreement. More aggressive “No Strike” clauses will also impose requirements that union leadership disavow the strike or direct members back to work, allowing management a clear pathway to fire wildcat strikers without repercussions.
Authors like Hamilton Nolan have taken aim at “No Strike” clauses, blaming them for weakened union power. The case is simple and persuasive: the strike is labor’s greatest weapon, and ceding it for any reason, for any period of time, weakens labor. Nolan and others aren’t wrong: the strike is labor’s biggest weapon, and our tools are diminished when it isn’t available as an option.
But the picture is more complicated than that — and raises questions as to whether the “No Strike” clause should be our primary target.
First, it isn’t as simple as removing them from contracts — already a tough (or nearly impossible) task. Case law has held that grievance procedures ending in binding, third party arbitration carry implied “No Strike” clauses for any issue that is arbitrable, even in the absence of an express “No Strike” clause. In other words, to reliably remove any restriction on the right to strike, unions would be required to eliminate or substantially narrow the scope of third party arbitration, effectively making a strike the final step of grievance procedures as a means to resolve contract disputes.
This relates to broader issues in case law with the scope of protections for the right to strike — an area that has been, as union attorneys have noted, steadily whittled down since the passage of the NLRA. These issues will exist to some extent regardless of what unions bargain, unless the NLRB changes doctrine (as Jennifer Abruzzo has signaled) or legislative reforms are enacted.
But a solution is found in addressing some of the history of post-war collective bargaining. According to Nolan, “No Strike” clauses stem from the original sin of the post-war labor leadership: Walter Reuther’s so-called “Treaty of Detroit,” establishing a landmark 1950 agreement between the United Auto Workers’ and General Motors (followed quickly by similar deals with Ford and Chrysler). According to Fortune magazine, “GM may have paid a billion for peace but it got a bargain.”
The problem is that isn’t accurate. There were two major concessions achieved by the “Big Three” in the Treaty of Detroit: management rights, ending the UAW’s quest for more input over production decisions (and creating a millstone hanging around labor’s neck), and a five year contract. Length of agreement, combined with a prohibition against striking, is what secured “labor peace”: instead of inevitable annual strikes, capital had five years of uninterrupted “labor peace” and productivity.
Reviving the Strike
This points to a more achievable immediate solution to the problem of declining labor militancy: length of contract.
Three to five year agreements are typical, and often sought by management. Unions are baited into agreeing because of the promise of stable healthcare and guaranteed wage increases for a longer period: an approach to bargaining that implicitly views our goal as managing the scope of concessions, rather than bargaining for more. It doesn’t even work: in an economic crisis, management can and will use threats of furloughs and shutting down operations to leverage concessions, whether or not a contract is in place.
But prior to the “Treaty of Detroit,” five year deals were unheard of — one year agreements were the norm. Long contracts benefit management, and unions have been suckered into going along with them. Length of contract and opportunity to strike go hand in hand, and we can far more easily manage length of contract in the short term than the presence of “No Strike” clauses.
Shorter term agreements, combined with — as Jane McAlevey has outlined — utilizing aggressive pattern bargaining (lining up multiple contracts in a sector and geographic area at once with a coordinated approach to raising standards) is key. The continual cycle of negotiations and organizing will keep workers strike ready, and ensure that the threat of bruising, protracted strikes will keep management on the defensive. Our goal should be simple: the threat of maximum disruption as our bargaining chip. We can do that with existing tools, with or without “No Strike” clauses.
If unions feel they’re in a position to tackle the presence of strike restrictions, whittling away at “No Strike” clauses — or better yet, adding language protecting and expanding strike rights — is a place to start. Removing requirements for unions to disavow strikes, creating carve-outs where the “No Strike” clause doesn’t apply, or preventing workers from losing their jobs for wildcatting are all ways to chip away at the scope of “No Strike” clauses and to reduce their power — without sacrificing tools like grievance arbitration.
In short, the valuable goals raised by those targeting “No Strike” clauses — more labor militancy — can be accomplished more strategically and more readily by shifting our strategy.
The Bullseye
Focusing on “No Strike” clauses as the bane of labor’s existence isn’t wrong, but it elides our ultimate enemy: management rights.
The historically important surrender in the “Treaty of Detroit” was the UAW’s abandonment of their push for control over production. By ceding the rights of management to control the enterprise and direct the workforce, we’ve conceded a permanent advantage to them: one that will, no matter what militancy we exercise, place us in the position of simply managing the scope of our exploitation.
Few, aside from Sarah Jaffe, focus on the notion of “management rights” as the true enemy for the labor movement — but without frontally assaulting the notion, there will always been a hard wall to what we can accomplish. Better wages and healthcare aren’t the ultimate goal: power is. Workers exercising direct control over decision-making and business operations, and whittling away at what is reserved to management, is crucial to shifting the balance of power in favor of workers.
No attempt to whittle away at management rights can be accomplished without reviving militancy, including expanding the scope of the strike weapon — but militancy alone will not secure what we want without clearly understanding what our ultimate enemy is. The idol we need to smash isn’t that of strike prohibitions. It’s that management has any rights except those stolen from workers.