Know Your Rights: 

The Right To Strike

by Doug Bonney

Since tonight’s show deals with the Teamsters’ strike against Overnite, it seems appropriate to devote this Know Your Rights segment to the law governing strikes. The right to strike is both a fundamental political right and the workers’ most powerful weapon to force concessions from employers. But, as anyone who has ever been on strike knows, going out on strike is a serious matter involving serious risks and dramatic sacrifices.

Employers did not grant the right to strike willingly. In the 1 800s, employers sought criminal penalties against strikers under the doctrine of criminal conspiracy, and the anti-worker courts quite willingly went along. Then, employers sued unions seeking damages and court orders to stop strikes. Businesses argued that strikes were unlawful because they interfered with the right of the business owners to run their businesses as they saw fit. Again, the courts went along.

Later, employers, in league with the federal government, attacked strikers. In the 1894 American Railway Union strike against Pullman, for instance, the government sent in federal troops to break the strike, and the employer sued the Union for violating the Sherman Antitrust Act. The theory was that the strike was a conspiracy in restraint of trade. The Clayton Antitrust Act of 1914 theoretically created a labor exemption protecting unions from the antitrust laws’ restrictions.

But the employers’ friend, the Supreme Court of the United States, gutted the Clayton Act in the Duplex Printing Press case of 1921. The government did not give workers this right freely. In fact, the government had tolerated, if not encouraged, employers who used goons to break strikes through violence, and the police and troops killed more than their share of strikers. It was the extreme hardship and sacrifice of workers who violated the law by striking that forced the government to make the right to strike legal.

Beginning with the Railway Labor Act of 1926, the mass struggles of workers against their employers began to pay off with legislative protections for the right to strike. The Norris-LaGuardia Act of 1932 and the Wagner Act of 1935  provided further legal protections for the right to strike.

Although the basic right to strike is protected by law, however, employers, lawmakers, and courts continue to permit tactics that burden the right to strike. For instance, the Supreme Court has upheld the use of permanent replacement workers in economics strikes and has upheld the denial of unemployment benefits to striking workers. In addition, the sit-down strike, the secondary boycott, and most sympathy strikes have been made illegal. In addition, employers frequently sue unions when workers go out on Wildcat strikes in violation of no strike clauses in their collective bargaining agreements. And, even when a labor agreement contains no express no strike clause, the courts will imply one if the contract contains a grievance procedure that culminates in binding arbitration.

These actions by courts and employers are a very real and effective deterrent to the right to strike. But, notwithstanding all these burdens on the right, strikes continue to be the workers’ most potent weapon in any labor dispute. And workers can even occasionally strike in the face of a no strike clause, such as where there are serious safety problems or where the employer has failed to live up to a fundamental part of its bargain with its workers—like when an employer fails to pay its workers or fails to make health insurance contributions so that employees lose their insurance benefits. It takes guts to go out on strike, and we all should support the brave workers who put it all on the line by exercising their fundamental right to strike.

This is Doug Bonne of the Bonney Law Office helping you to know your rights!