last offer up for a secret ballot vote by its membership. They refused to budge from this position. The union, eager to be done with the negotiations, put the offer up for a vote. It was swiftly rejected and management was compelled to improve on their last wage offer.
The union filed an unfair labor practice charge over management’s intransigence in order to discourage such behavior in the future. Today, one of the five broad categories of ULPs by employers that the law spells out is “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.”
This is the provision that bans company unions, and an employer dictating how the UAW should conduct its internal decision-making would seem to be a clear violation. But the years following the Treaty of Detroit were much more about managing and restraining union demands and protest activity than they were about reining in bad behavior by employers.
Instead, in the 1958 decision NLRB v. Wooster Division of Borg-Warner, the Court decided to tinker with bargaining rights. Once judges get in the business of weighing which demands are fair and which are foul, they almost inevitably privilege business. As legal scholar James B. Atleson has observed, courts make “the assumption that certain rights are necessarily vested exclusively in management or are based upon an economic value judgment about the necessary locus of certain power.”31
So what kind of managerial decisions has the Court decided employers have no obligation to negotiate? Only the small matter of whether a union can protect members’ jobs from subcontracting and outsourcing! An employer can hire another company or staffing agency to employ workers side-by-side with bargaining unit members, doing work that the now laid-off co-workers of union members used to do, but now at lower pay and little or no benefits. The employer has no legal obligation to negotiate with the union over the decision. The only right that the union has is to bargain over the impact of the decision that’s been made.
So the union can propose how and in what order union members are laid off. They can ask that the laid-off workers get retrained and placed on a priority recall list for other jobs in the bargaining unit or for their old jobs with the new subcontractor. They can bargain for severance and COBRA health insurance payments. What they can’t do is force the employer to bargain over the decision itself. They can’t use the bargaining process to slow down the decision. They can’t force the employer to open its books and justify the economic need for the decision.
Many unions, however, do have language in their collective bargaining agreements to prevent subcontracting. But keeping that language in their contracts has all too often turned into another way that union negotiations are done on a concessionary basis, as most employers would dearly love to be free of such “restrictions.”
A union that doesn’t have a contract, one where the workers have just organized, is particularly vulnerable. I’d say that every fourth organizing campaign I ever worked on involved the boss simply subcontracting a chunk of the bargaining unit, just to shake things up a little. It’s a great way to drag out negotiations and make the workers question whether organizing was worth it. Worse, I can’t think of a single campaign I’ve ever worked on where at least one worker didn’t have a story about how she or a family relation lost a previous job and the union couldn’t do anything to stop it.
A Temporary Truce That Became a Permanent Surrender
The five-year duration of the UAW’s 1950 GM contract was unprecedented. It was a product of the union’s annual threat to strike and its proven track record of being able to do so effectively. And, crucially, management paid for it with a very pricey wage and benefit package. Today, unions routinely bargain for long-term contracts. Almost all 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