Getting Comfortable With Illegal Strikes

Laws are made up. "Nobody doing work" is real.

This is the way. (Photo: Getty)

One knotty dynamic of labor power is its tendency to limit itself the more it becomes institutionalized. Consider: In the first part of the 20th Century, before the passage of the laws that established and regulated and protected unions in America, working people faced far harsher conditions than they do today. Lower pay, worse health care, fewer legal protections, more unchecked control by employers, more outright violence. So how were the early industrial unions established in these conditions? Workers went on strike. In the barren coal fields, and inside the horrific mills and factories, the workers struck to demand a union. They struck, and struck, and struck. The government threatened them, and the police arrested them, and their bosses employed private armies of thugs who came and beat them and often killed them. That’s how it was. And still, they struck, and struck, and struck. What else could they do? That was their sole weapon. And after the employers had evicted them from their homes and beaten them with clubs and thrown them in jail and bombarded them with condemnation from friendly politicians and newspapers, the strikes continued. Eventually, the employers gave in. They had to give them their unions, because otherwise there would be no business. This process is the origin story of many unions that are still around today.

Were these strikes legal? [Now imagine me speaking in the tone of voice Jim Mora used in that famous “Playoffs? Playoffs???” clip] Legal? “Legal???” What the fuck was legal? They hadn’t even written the laws yet that might render them legal in a meaningful way. They were out fighting in the street and being shot at with tommy guns and sleeping in tents and watching their children starve. They won those unions with blood. What they knew—and what their victories demonstrated—was that strikes are exercises of power that exist outside of the boundaries of law. By that I mean that whether you call a strike legal or not, the fact is that when workers don’t work, businesses don’t run. It is an unassailable reality that employers must reckon with if they want to make money. Declaring a strike illegal, just like bashing strikers in the head with sticks or cutting off their healthcare benefits or having redneck local newspaper editors call them communists, is just one more tool that companies use to inflict pain on strikers in hopes that their will breaks before the company’s does. What matters when you get right down to it, though, is not how strikes are formally classified, but which side of the strike can hold out longer. As the famous piece of labor wisdom goes, “There is no such thing as an illegal strike, just an unsuccessful one.”

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That is the incredibly difficult but otherwise very straightforward process by which workers who had nothing except their own solidarity broke the will of America’s most powerful companies. Now, consider what happens after the unions are won: They become legal entities. They collect dues. They have a budget and a treasury full of money. They have a full time staff. They play in the sandbox of electoral politics. They are, in short, institutions. Their focus shifts to bending the law in a favorable direction. A consequence of this is that they become much more averse to defying the law. Naturally! A group of ten thousand impoverished and hungry workers has very little to lose; a union with ten thousand dues-paying members and a bank account and an office and a staff does. The law weighs heavily on established unions. If they strike illegally, their officers can be jailed, their treasury confiscated, their hard-won contracts revoked. Things that they spent years painstakingly building up can be torn down by a single judge’s order. The more power that a union gains within the bounds of the law, the lower its incentive to flout those laws.

On one hand, legally established power as a respectable institution is what we want unions to have. It is a marker of the labor movement’s forward progress throughout history. Being a homeowner imposes a lot of legal obligations, but it is preferable to being homeless. I am not writing this to sound like some idiot kid yelling for unions to burn it all down, with no conception of what would be lost if that happened. I just want to point out that the integration of organized labor into the establishment comes with a very real downside of its own.

Namely: The more you feel bound to follow the law, the more potent a weapon against you the law becomes. When they told the mine workers who had been evicted from company housing for union organizing and forced to live with their families by the railroad tracks in tents that were periodically shot at by company goons “btw, strikes are not allowed,” I like to imagine that they had a hearty chuckle. Fast forward three generations, though, and think about all of the things the union has to lose, and the legal prohibition carries much more weight. If we lived in a nation with a healthy and fair democratic system of government in which the working class could exercise political power proportionate to its percentage of the population, this would not be such a big deal—the laws would be friendlier to the working class. We don’t live in a nation like that. We live in a nation where money buys political power and consequently the laws have been written to restrict labor power in favor of corporate power. The Taft-Hartley Act, which really fucked unions, was passed in 1947. We’ve been complaining about it ever since. But guess what we have not been able to do? Roll it back. Seventy seven fucking years. Any power analysis that has “first, make the laws better” as a central part of the plan is just not realistic. We have to figure out how to be strong in the real world that we live in.

A civilized legal discussion with striking textile workers, 1934.

Here is what that means on a practical level: Either get comfortable with an endless dissipation of organized labor power, or get comfortable with illegal strikes. Take your pick. I am speaking here to regular working people, and to union members. This is not something that elected leaders of unions, or union staffers, are going to take the lead on. There are some notable exceptions, yes, but in general, people who work at unions are not typically going to tell their members to go break the law. That is why, for example, the wave of teachers strikes that swept the nation in 2018 were grassroots efforts led by teachers themselves, who dragged their unions along with them. They were all illegal! And they fucking won anyhow! Because the hard fact of teachers not working was more powerful than a legal decree. A red state governor can whine and fume and make threats, but he cannot wave a magic wand and open schools with no teachers. Those teachers realized the core of their power, and used it, and in the end the law didn’t matter. The teachers who are right now on strike in Newton, Massachusetts are doing the exact same thing. Taking the step of striking illegally requires a good measure of bravery. All of us should support these strikes, whenever we see them.

The alternative to undertaking illegal strikes is to allow some of the most contemptible, inhuman, corporate-owned Republican state politicians in America to simply erase the ability of working people to stand up for themselves, with the stroke of a pen. Many, many states make it illegal for public employees to strike. Many of them also have laws that say things like, “okay you can negotiate a ‘union contract’ but all you’re allowed to negotiate for is your little pay raise and asking for anything else is not allowed.” Just the most brazen rejection of the basic right of workers to negotiate their own working conditions that you will find anywhere. It is a legal boot on the neck. Will those laws be rolled back one day? Maybe. Perhaps, one day. Or not. Will you spend your whole life hoping that maybe, perhaps, your inalienable rights will be recognized by people who understand their own job description to be to oppress you on behalf of corporate donors? You can wait, forever, or you can decide that you will do illegal strikes if you need to. That’s it.

This dynamic is old news to veteran labor strategists, but I find that many people have never had open discussions about this stuff with their coworkers, or with their own unions. I often write things encouraging people to organize unions and join the labor movement. But in many cases, when people do that, they gaze out at the brutal scene in front of them—an intransigent employer (whether public or private) and a bunch of laws that say they can’t do all the stuff they want to do—and sink into despair. Well, of course. Anyone would sink into despair if they were under the mistaken impression that all they could do were the things that the laws written by, you know, Scott Walker and ALEC and the Cletus McEvil Labor Consultants Inc. allowed them to do. The laws take away all the strongest weapons you have to use your collective power. That’s the point of those laws! You can either defy them, or accept that you’re fucked.

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Organizing is a lot of work. No point doing all that work just to win your union and then be fucked. Waste of time. It is important that all of us who holler about how everyone needs to unionize be very up front and honest about this with people who follow our advice: Sometimes you will have to break the law in order to win what you want. Sometimes your choices are to strike illegally, or to lose. You are free to choose whichever of these options you prefer, but don’t deceive yourself into thinking that there is a secret third option. In many cases there is not. Furthermore, you should understand that whenever Republicans come into control of your state or federal government, they will be busy passing laws that further restrict your ability to unionize and collectively bargain and strike. In many substantive ways, the laws that unions face today are more hostile than they were in the late 1930s. If your bedrock assumption is that you can only do what the law says, you are, from the very start, leaving most of your potential power on the table. Which is exactly what the people who wrote the hostile laws intended. The worse the laws are, the more radicalism is required from organized labor in order to build and maintain its own power. A half century plus of declining union power in America goes to show that unions have not internalized this fact very well.

Take comfort in the fact that many, many working people before you have engaged in illegal strikes, and they have won. Laws are important to the extent that they are accompanied by sanctions that must be taken seriously as part of a calculation about what will be required in order to win a strike. But they ain’t the final word. They are not the boss of you. Laws are made up. Not doing the work is real. Never lose sight of the source of your own labor power. The strike is capitalism’s Achilles Heel. Don’t let anyone take that away from you, ever.

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• My book about the American labor movement, “The Hammer,” will be published on February 13. (Preorder here.) As you can see from the attractive graphic above, I am going on book tour soon, and you are all invited. I may announce a few additional events in the near future as well. If you have read this far down in today’s essay, I think that you would enjoy both the book and any of these book events. Come on out and talk about labor power. What could be better?

• Previous pieces on How Things Work related to today’s topic: Corporations Do Not Have Any Rights That We Don’t Give Them; What Republicans Plan to Do to Labor If They Win; The Cost of Strikes.

• I’d like to take a moment here to thank the reader, who asked to remain anonymous, who sent me an unsolicited donation to help support my book tour. (You may be shocked to learn that publishers do not generally pay for book tours.) That type of support is very heartening, and I will try to speak intelligently enough on my book tour to make it worth it. Reader funding is the basis of my ability to be a working writer. If you would like to support me as well, you can become a paid subscriber of this very site you are reading, How Things Work. Thank you to everyone who has done so. Join them! It feels great.