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Labor’s new strike-first strategy

Updated: September 12, 2013 9:54AM

The string of recent work stoppages by thousands of fast food and retail workers across the country brought to light an aspect of U.S. labor law that probably surprised many: Workers don’t need a union to go out on strike.

In fact, workers have had the right to walk off the job in protest since 1935, thanks to a federal law that protects them from being fired or disciplined for acting as a group for “mutual aid or protection.” That includes, as just seen on the streets of Chicago, New York, Seattle and nearly 60 other U.S. cities, striking for a bigger paycheck and the freedom to form a union without retaliation. As made clear by the Supreme Court, a lawful protest strike can be totally spontaneous, and it doesn’t matter if the action taken, from passing a petition to walking out, is a “reasonable” response to perceived workplace unfairness.

While this is a broad right, it is also little-known, in part because workers are often unaware of basic labor law protections, and in part because strikes have tended to be used by already unionized workers negotiating a contract, not as a tactic for organizing new members.

But perhaps no longer. The emergence of one-day strikes in the fast food and retail sectors signals that nonunion, low-wage workers have taken note of their preemptive strike rights and that unions and community groups see value in assisting their efforts.

This is a meaningful shift in U.S. employer-employee relations, for two reasons.

First, the strikes flip the traditional organizing script by situating the most public and militant forms of collective action at the forefront of the campaign. The usual approach of operating in secret to prevent employer push-back and avoiding major confrontation until (or unless) substantial support emerges has been replaced with a strike-first strategy by a coalition of the willing — even if it means only a sliver of the work force actually walks out.

This offers the beleaguered labor movement a tantalizing chance to stay on offense with management and the media while telling a powerful story to the public. It can also, as is already apparent in a number of cities, set the stage for early employer concessions that further legitimize and galvanize the overall effort.

Second, while campaigns for representation are typically scripted affairs, with basic moves well known to unions, employers, and corporate consultants alike, these recent strikes embrace improvisation. The extent of worker participation, the nature of the employer’s response, and even the motivating issues are unpredictable.

Last November, a New York Wendy’s refusal to let a striker come back to work sparked an impromptu community rally that led to the worker’s rehiring within hours. In July, workers struck fast food restaurants in New York and Chicago, where air conditioning had unexpectedly broken down. For a labor movement sometimes hobbled by stale imagery and always limited by the narrow conventional tactics that the law allows, the creativity and flexibility inherent in these and other actions can surprise even sophisticated employers. The sheer simplicity of walking off the job may prompt workers with courageous spirits to go ahead and try it.

There are major questions, of course, about the ultimate effectiveness of a strike-first strategy. Its extemporaneous character seems to throw activism at the wall and see what sticks, contributing to a sense that a path to victory is not necessarily clear. If wins do happen, whether the strikes can continue to expand at a rate sufficient to reverse organized labor’s dwindling numbers is a crucial unknown. And all strikes come with legal and practical risks, including the possibility that workers will be replaced by strikebreakers and effectively lose their jobs. Nonetheless, the reawakening of a core labor law principle may be shifting the possibilities and practices of solidarity, and for millions of the nation’s low-wage service workers, that is surely a good thing.

Michael M. Oswalt is an assistant professor at Northern Illinois University College of Law. He previously worked for the Service Employees International Union, a supporter of the fast food and retail strikes.

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