Since the Industrial Revolution first concentrated large numbers of workers in factories and other urban workplaces, employees have been fighting for fair wages, safe working conditions, a shorter workday, and benefits. One of the most effective weapons in this struggle has been the strike, where workers refuse to work until they get what they want.
In 1937, during the depths of the Great Depression, there were over 4,740 strikes in a single year, the greatest strike wave in American labor history. Since then, the number of major work stoppages (defined as those involving over 1,000 workers) has steadily fallen: from 381 in 1970, to 187 in 1980, to 44 in 1990, and to just 11 last year, the second-lowest level since the Department of Labor began collecting data. To put things in perspective, the China Labor Bulletin reported there were nearly 1,400 strikes in 2014, a number that has risen even higher in 2015.
So what is happening? Have U.S. employers suddenly collectively agreed to pay all workers a living wage? Are we taking Sweden’s cue and shortening our workday to six hours? Are federal and state governments passing reams of legislation to ensure safe working and health conditions for all employees? Not so much.
When is it legal for workers to strike?
While the right to strike is generally protected under the National Labor Relations Act (NLRA), not all strikes are legal. There are a number of potential restrictions and limitations:
1) For a strike to be legal the workers must be striking for economic reasons (including higher wages, improved benefits, better working conditions) or to protest an unfair labor practice by the employer (such as refusing to bargain with the union or discriminating against union members).
2) Even if the purpose is legal, the strike may not be legally protected if the collective bargaining agreement includes a no-strike clause. These clauses became prevalent in the United States following World War II, and currently almost all collective bargaining agreements contain some prohibitions against striking.
3) Employees of some industries, such as airline and railroad employees, are prevented from striking, except in narrowly defined circumstances, because their absence would create a national emergency. Also, some jurisdictions, such as New York, ban all public employees from striking, while others prohibit work stoppages for particular categories of workers regarded as “critical to society”; for example, police, firefighters, and teachers.
4) A strike that began lawfully can quickly become illegal if strikers engage in serious misconduct, such as violence or threats, or using picket lines to physically prevent other workers from entering or leaving the workplace.
The difference between “replacing” and “firing”
But legality is not the only barrier to a successful strike.
Companies can counter a strike in many ways. They can threaten to close or move a workplace. They can use their large financial reserves to withstand a long, drawn-out strike until workers give in. Or they can hire new or replacement workers.
The last tactic allows an employer to keep operating during a strike. What’s more, according to the 1937 Supreme Court decision in NLRB v. Mackay Radio, employers have legal cover to permanently replace strikers. While the Court distinguished between “replacing” and “firing” strikers, a permanently replaced employee has the right to return to the job only if the replacement worker leaves, creating a vacancy.
In practice, this technical distinction doesn’t mean much to strikers who need to support themselves and their families.
Decline in union power = decline in strikes
Currently, only 11.1% of American workers are union members, a 70-year low after the post-World War II peak of about 35%. One of the most effective weapons a union has against an employer is the threat of a strike. So it should be no surprise that as union membership has declined nationally, so has the use of the strike tactic.
In addition, deceptively named right-to-work (RTW) laws are further eroding the bargaining power of unionized workers. These laws prohibit employment contracts from requiring that all workers join a union or pay their share of union dues. The result is that unionized employees are being forced to compete with non-union workers, who are often willing to work for lower wages and reduced benefits.
These laws are having definite effects: Average wages are about 3.2% lower, or $1,500 a year less, in right-to-work states than in other states. And yet, despite this, a 2014 Gallup Poll found that only 53% of respondents approved of unions, while a whopping 71% favored right-to-work laws.
Unions are by no means a perfect solution to America’s labor woes. They have been rightly criticized for everything from maintaining bloated bureaucracies to coddling high-paid leaders who are in league with company bosses. But, then again, unions also gave us weekends off, ended child labor, and won widespread employer-sponsored health coverage—and they did so largely by using (or threatening to use) the power of the strike. Which begs the question: With strikes on the wane, how will American workers fight for their rights?
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