“Never Give Up the Right to Strike”: An Introduction to No-Strike Clauses

Cover: via https://www.sacbee.com/news/politics-government/the-state-worker/article250990239.html

Fire With Fire || Years ago I came across the quote, the source now forgotten, “My philosophy of unions is simple: never give up the right to strike.” At the time I didn’t fully understand what that meant, but it stuck with me. Over the years of reading labor history and reflecting on my own workplace organizing I’ve gradually realized that that quote encapsulates much of what I now believe about unions.

One of the main ways workers give up the right to strike today is through their union contracts, 98% of which contain “no-strike clauses” forbidding workers from withholding their labor for the duration of the contract. No-strike clauses are usually written in expansive terms. For example, the no-strike clause in the union contract at my job elaborates that any slow down or alteration of or deviation from or interference with the work assignment is prohibited. This amounts to a near-blanket ban on worker direct action against their employer.

To be clear, most workers can still strike as part of a contract campaign but only after the contract expires, when the employer is well prepared, and within the mostly hostile legal framework that prescribes much of where, when, why, and how workers can withhold their labor. That such contract campaign strikes today often win so little is disappointing but hardly surprising. When workers in the past were unbound by no-strike clauses and had more agency over their strikes they were more powerful and successful.

No-strike clauses have become so commonplace that they appear synonymous with unionism itself in the popular consciousness. “Isn’t that the point of a union contract? You go back to work and don’t cause any trouble in return for job security, higher wages, and better benefits?” That’s definitely one historical form of unionism and the one that became dominant by the late 20th century, but what unionism meant in different eras has sometimes contrasted sharply with what mainstream unions are today. More radical visions of unions can not only be found in history books but are available to present-day workers and organizers who want to push back against capitalist hegemony instead of merely carving out a few more privileges within it.

One reason no-strike clauses, and their close cousins management rights clauses and grievance arbitration clauses, are so little discussed in the labor movement today is that the biggest voices on the contemporary left have come to accept these clauses. This includes everyone from Jane McAlevey’s books and trainings to Kim Moody’s Rank-and-File Strategy as officially adopted in the Democratic Socialists of America to the Labor Notes annual conferences and year-round media to Jacobin Magazine to most union reform caucuses to the vast majority of self-identifying leftists who are in elected leadership or on staff of unions today.

The main thrust of their views on no-strike clauses is that they are bad and a nuisance, but challenging and removing them from contracts is of secondary importance. Rather, the top priorities are recruiting new union members, electing more progressive leadership slates, fighting for wages and benefits, (slightly) broadening the scope of contracts to wider workplace and social conditions, and conducting big strikes as part of contract campaigns within the legal framework of existing labor relations. I’ll call them “left union reformers,” those who want to take over the unions as they exist and tweak them to be a little more militant and democratic but who largely acquiesce to the enervating institutional foundations of mainstream unionism, chief among them being no-strike clauses.

This is in sharp contrast to the labor left as it has existed historically. While the American Federation of Labor included no-strike clauses in its ascendant form of moderate craft unionism in the US starting in the 1880s, radical unions like the Industrial Workers of the World (IWW) forbade the signing of no-strike clauses in its heyday in the 1910s and 20s. IWW members used democratic control over the strike weapon to exercise immense control over the workplace and fight many of the era’s major labor battles.

Even more prominently, the militant industrial unions of the 1930s and 40s, especially those unions belonging to the Congress of Industrial Organizations (CIO), are seen as the lodestar for today’s left union reformers. While the national leaders of the CIO advocated no-strike clauses from the beginning, the on-the-ground organizers of every radical union of that period militantly resisted these clauses at every turn. Radical workers of nearly every ideological stripe–workers in the Communist Party, Trotskyists, anarchists–all fought tooth and nail against employers to exclude, remove, violate, or at least weaken no-strike clauses in their union contracts. In trying to claim the heritage of the CIO’s early radicalism while neglecting their actual ideas and practices around no-strike clauses, most of today’s left union reformers either are wrong, ignorant, actively suppressing the true history, or identifying with the CIO’s moderate upper leaders against the CIO’s grassroots radicals.

History aside, what do no-strike clauses have to do with workers today? Contract clauses are not the kind of things that most workers get very excited about in the abstract. Just more technical mumbo-jumbo buried in hundreds of pages of contract language that few workers have the time or expertise to understand. This is by design. However, in my experience, when coworkers repeatedly see their union violate worker democracy and channel class conflict into never-ending mazes of bureaucracy, workers get extremely frustrated and then very curious about why the fuck their unions keep screwing things up. That’s the point at which the history and concepts of contract clauses connect with workers’ real experience and become the most pressing things that workers want to know about.

The starting point of any anti-capitalist labor movement needs to be increasing worker democracy over its actions. No-strike and related clauses make this impossible and thus need to be rejected ideologically and opposed practically. This is the first post in a series that will expand on and defend many of the seemingly controversial claims made above. While I frame my negative critiques in stark language in order to clearly delineate the contours and emphasize the stakes of this debate, in later posts I will also elaborate on the many wonderful things the labor movement has to gain from renouncing no-strike clauses. Such a program requires not just pressing the rewind and play buttons on labor history but instead taking from the best of old struggles and experimenting with new forms and tactics.

The Three Clauses

While no-strike clauses are the central pillar of the form of unionism I’m critiquing, those clauses are crucially accompanied by two further contract pillars: management rights clauses and grievance arbitration clauses. I define these all below as the starting point for deeper discussions in follow-up posts.

First, let’s cover some basics. A union contract is an agreement between a union and an employer that regulates the terms and conditions of employees on the job. These contracts are legally binding and typically govern the wages and benefits of employees as well as the duties and responsibilities of the employers and employees in their relations.

No-Strike Clauses

No-strike clauses are commonly included in union contracts in the US today. These clauses are not mandated by law, but are agreed upon by the union and the employer. Like all clauses, once they are in the contract they are legally enforceable. A union that violates a no-strike clause can be sued by the employer for damages (loss of money) and an employer can obtain an injunction from a judge forcing workers back to work.

Through no-strike clauses workers cede the right to strike or withhold their labor from the employer for the duration of the contract. As noted above, no-strike clauses are often written in expansive terms, banning any intentional slowdown of or alteration of or interference with work. Most contracts in the US today last between two and five years.

Like with all of these clauses, there are stronger and weaker, worse and better versions of them. In contemporary labor contracts, the no-strike clauses are typically the strong versions, putting the most restrictions on workers in a way that is worse for them. Weaker versions of no-strike clauses may put restrictions on striking but may permit strikes under certain circumstances. For example, a weaker no-strike clause might state that workers have a right to strike to pressure the employer when a grievance isn’t resolved through the normal grievance procedure (more on this below). Or the contract may stipulate that workers can strike over particular kinds of grievances in particular situations. I’ll cover many such examples of the range of such clauses in subsequent posts.

When weaker no-strike clauses are fought for and won by workers in their contracts in place of stronger no-strike clauses they should be commended. Such weakening gives workers more tools to fight and is a stepping stone towards eliminating no-strike clauses entirely.

Management Rights Clauses

Management rights clauses give specific or general authority to bosses over the workplace. They give managers “the right to manage production.” The strongest versions of these clauses, which are the most common, give management total authority over all company policy decisions. This includes the pace of work, the amount of work, how the work should be done, downsizing or expanding production, and so on. In contrast, the absence of any such clause leaves the union and workers free to contest company policies at least within the parameters of what’s allowed in the no-strike clause (this reveals how closely these clauses are intertwined).

Management rights clauses reify capitalist property rights in the workplace to all areas that are not otherwise explicitly stipulated in the contract and that aren’t otherwise illegal. A boss can’t discriminate based on race or gender, because that’s illegal, and a boss can’t force a worker to do something that’s too dangerous, because that’s illegal too. And the boss can’t explicitly fire unionized workers for no reason because “just cause” in union contracts requires bosses to have a good reason to fire and discipline workers. But as regards the work itself, what workers have to actually do for eight hours a day, management rights clauses empower the boss to unilaterally impose whatever conditions and job tasks they want to increase profits under contemporary union contracts.

In the traditional industrial workplace of the factory, this often meant that factory assembly lines were sped up to intolerable levels. Auto workers had some of the highest levels of unionization and highest blue-collar wages in the US in the mid-20th century, but because of deals union leaders made with employers around management rights clauses in their union contracts, assembly lines were sped up to maximize profit in a way that made daily work miserable. While it looks different in each sector, similar pressures and trends can be found across unionized industries today due in part to unions ceding power over working conditions through their management rights clauses.

Grievance Procedure Clauses

A grievance procedure clause stipulates how the union and the employer resolve disputes that arise over the interpretation and implementation of the contract during the life of the contract itself. In general, a grievance is just a complaint, while in contract terms, a grievance is any violation of the union contract. More common grievances include workers getting paid an incorrect amount or getting miscategorized on the pay-scale, workers being unfairly disciplined, or workplace policies violating some provision in the contract.

If an employer violates the contract and a worker wants to dispute the employer’s actions, the worker can bring the grievance through the formal grievance procedure as outlined in the contract itself, which typically involves 3-4 steps. The grievance advances to subsequent steps only when the process fails to produce a mutually agreed-upon resolution at the earlier step. Here’s a sample stepped grievance procedure:

The worker tries to settle the grievance with the manager directly.
The worker brings the grievance to a union steward or business agent, who gathers information about the grievance, such as circumstances surrounding this particular grievance as well as past precedent for how this kind of grievance was dealt with in the past between the union and the employer. The steward or business agent then tries to settle the issue with the manager.
More senior representatives of the employer, in HR and legal council for example, meet with more senior officers in the union, including possibly union presidents or union lawyers, to resolve the dispute.
If the dispute is still unresolved, and both sides refuse to accept what the other side wants, then the grievance is sent to a neutral arbitrator. This arbitrator is usually a government appointed official who looks at the contract and past precedent and makes a legally binding decision which both sides are bound to accept. This is called “binding arbitration.”

Each of the above steps typically has time limits on how long each side can take at each step before they come to a settlement, one side drops it and thereby concedes, or it automatically goes up to the next step.

There is nothing inherently bad about a worker or union rep talking to a boss to try to work out a dispute at first. However, these procedures become disempowering to workers when they are mandated in place of any collective worker action (which are banned in the no-strike clause), make workers passive and dependent on a layer of expensive and distant professionals to solve their problems, and result in high union dues to be able to pay for this entire apparatus. Additionally, the legal teams and financial resources that employers have to navigate these procedures tend to dwarf those of unions. Finally, government arbitrators are rarely pro-union in any meaningful sense, and even the ones who are are bound to a rigid system of past precedent where laws and courts have consistently tipped the scales against workers.

Typically, worse grievance procedure clauses include more steps and have longer time limits, both of which put more distance between the worker and the actual process of resolving the matter. Better grievance procedures, mostly a relic of the past at this point but were common in radical unions of previous eras, often give workers the option to strike over a grievance or at least enable workers to go on strike over a grievance instead of going to arbitration after all of the other grievance procedure steps have been exhausted.

The Practical Consequences of the Three Clauses

The United Farm Equipment Workers of America (FE) was one of the most radical and successful unions of the CIO in the 1940s and 50s. Their union contract had a grievance procedure they could use to resolve disputes but also gave workers and union officials the right to strike over grievances. They could choose to use one approach or the other whenever a grievance arose. In her book The Long Deep Grudge, historian Toni Gilpin describes some of FE’s views on these clauses:

“But the shop-floor leaders of [FE] Local 236 were loath to place much faith in the drawn-out grievance procedure, which provided for arbitration as its final step. ‘Grievances–you can only win about 10 percent of them,’ Jim Wright said, ‘because it sounds like there’s a lot of legitimacy in what the company puts forth, when they sit down and argue about a grievance, they argue all the merits, all the particulars about a grievance. We didn’t want to hear about any of that.’ Wright, like Mouser, preferred a more efficient avenue of redress. ‘We knew if we walked out, heck, if it happened to a worker today, we walk out, and his case will be settled in the morning,’ Wright insisted. ‘That’s the real results of the walkout. Every walkout, every time we walked out, it got results.’”

This orientation towards grievances was common among the radical unions of the period. The low success rate ascribed to the grievance procedure here matches my own experience. While the FE example refers to the union taking on individual grievances, oftentimes a union will group together many workers, sometimes dozens or hundreds, in a collective grievance or will try to contest a workplace policy that affects everyone.

For example, at my employer workers are expected to do their assigned work when not in various kinds of meetings called by bosses. However, some of the bosses call so many meetings that it makes it impossible for staff to finish all of the work in the allotted time left over after all of the meetings. Part of an agreement between the union and the employer limited the number of meetings bosses could call, but it had gone unheeded for years. Finally, the union filed a grievance to reimpose the limit. After many months winding through the grievance procedure an arbitrator ruled against the union on a technicality that that particular agreement was no longer in force. Losing such arbitration rulings on technicalities has become so common that I’ve lost all faith in the grievance procedure in my union.

Sometimes organizing outside of these clauses can be done with small actions around small grievances. For professional development one year at a place I worked, staff were being formally asked by the higher up bosses, and backed up by union leadership, to come into the office to do trainings even though the trainings were entirely contained in online videos that could be watched from home. A few union stewards talked it over amongst themselves and started encouraging everyone to do the training videos at home if they wanted to. With a critical mass of staff willing to stay home, the direct supervisor decided to look the other way instead of try to impose discipline on a bunch of staff over the violation of an unpopular workplace policy even though the staff actions here violated the both the union contract’s management rights clause (which formally gives the boss full authority over how the work is done) and its no-strike clause (which prohibits any unauthorized alteration made to the work by the workers).

Organizing outside of these clauses can also be carried out at a larger scale using higher intensity actions. At a school district I used to work in caseloads were a frequent problem, especially in special education where many students had a lot of needs and short-staffing was most severe. While class-size caps in union contracts can sometimes help moderate excessive workloads for teachers, special education assistants (SEAs) often work between multiple classrooms and so closely with students with unique needs that it is too complicated for any simple metric to fairly regulate workloads. Any remotely accurate and fair regulation of all of the possible combinations and complications would take 100s of pages of legalese in a union contract.

Given that the issue is too complex to regulate efficiently in a contract, the boss assumes full authority over SEA workloads because of the management rights clause. It’s not uncommon for severe short-staffing in special ed to lead to very dangerous situations for kids and staff, which at their worst become literally life-threatening when students have tantrums and there aren’t enough staff around to safely contain and de-escalate. If instead the contract didn’t have a management rights clause, then workers could openly and directly contest workloads that were burdensome or dangerous.

Individual protestations by SEAs are met with blank faces by administrators who say heavy workloads are just the way the job is. The union puts on a sympathetic posture and occasionally orders some perfunctory and toothless investigations into these workloads, but it has already straight-jacketed itself via these clauses from having any real influence or leverage.

Sickouts at that district had become a not uncommon phenomena as SEAs were stressed out, working conditions often remained dangerous, and no other effective channels of redress were available. SEAs at a school would coordinate to all call in sick on a specific day, which would prompt administrative staff (who still held teacher licenses) from district headquarters to leave their offices and go spend their day at the school holding things together. This pissed off district administrators while aptly demonstrating the power of SEAs to muck things up if they so chose. Of course, such sickouts violated the no-strike clause in the contract, but SEAs consistently found it preferable to take the risk and fight back instead of suffer quietly or quit.

Some sickouts resulted in retaliation against the staff who took action. Some sickouts succeeded in changing the school culture, forcing admin to improve staffing, and providing other resources to SEAs.

Choosing a Field of Struggle

Here I want to be clear: just because workers avoid or violate these contract clauses by taking direct action doesn’t mean they always win. While on the whole I think direct action outside of these clauses provides better chances of winning, in any particular case the workers might win or lose whether they file a formal grievance or strike around it.

The field of struggle (direct action of withholding labor vs. indirect action of contract procedures) is a separate issue from the degree of power workers have. When workers take direct action, their power is determined by the strategic pressure they’re able to leverage through disrupting production and the solidarity and trust of the relationships between workers. When workers advocate through the grievance procedure, their power is determined by how well their problem fits into the technical protections of the contract and how much money the union is willing to spend on officials to push their grievance through the appropriate channels.

When the contract clauses are followed, workers too often end up trapped in bureaucratic purgatory as their stressful working conditions continue unabated. But organizing outside of these clauses, either by fighting to remove them from their contracts or taking action in spite of them, just means workers can decide to take action when, where, how, and why they choose and can do so democratically without union staff trying to unilaterally stop them. Some of these strikes will win, some will lose, but at least workers gain valuable experience taking action, build their capacity for future fights, and become protagonists in their own stories.

Conclusion

These three clauses take the rules and dynamics of capitalism in the workplace and further enshrines them through the unions. The boss’s authority is formalized and legally secured in the management rights clause, the no-strike clause turns potentially militant workers into passive labor to be exploited, and the grievance arbitration clause ensures that production for profit will continue without disruption. It’s no longer only the boss who is tasked with protecting the rights of property, but union staff too are obligated by these clauses to uphold the authority of employers over their hired hands.

When I first heard what no-strike clauses were I didn’t pay them much attention, and the union books and articles I read rarely mentioned them. However, as my experiences around these clauses started to stack up and I went deeper into the particular histories of radical unions, my union worldview began to shift. Far from legal marginalia or esoteric history, these clauses bear on nearly every aspect of the labor movement in profound ways. Not only does a critique of these clauses provide a new way of understanding the conundrum of the contemporary labor movement, it opens endless possibilities for workers to re-imagine their organizational, strategic, and tactical forms. In subsequent posts in this series, I hope to illustrate and develop these ideas.

Democratic worker control of production may be a long-term goal, but democratic worker control of their own capacity for collective action is the first step towards remaking a radical labor movement.