Its Own Dubious Battle: The Impossible Defense of an Effective Right to Strike
53 Pages Posted: 2 Mar 2018 Last revised: 16 Jun 2018
Date Written: February 21, 2018
The National Labor Relations Act is among the most important statues even enacted. At its core is the right to strike, which its drafters positioned at the center of a system of labor rights aimed at diminishing the pervasive exploitation and steep inequality that are endemic to modern capitalism. Although these goals have never been more relevant, they have proved difficult to realize via the labor law, largely because the right to strike has been consistently undermined by courts, Congress, the NLRB, and powerful elements of the business community. Recognizing this, labor scholars have made the restoration of the right to strike a cornerstone of labor law scholarship. Authorities in the field have developed an impressive literature that stresses the importance of strikes and strongly criticizes the arguments that judges, legislators, and others have used to justify their incursions on the right to strike. But this literature has developed without its authors ever confronting a fundamental question, which is whether an effective right to strike is a viable aspiration in the first place. This Article takes up this question. It affirms the crucial role that strikes have played in building the labor movement, legitimating the labor law itself, and indeed validating the New Deal and, with this, the modern administrative state; and it verifies the integral role that strikes play in contesting the enormous power capitalism accords employers over the workplace and the spoils of production. But this Article also shows how the strikes that were effective in these crucial ways were not conventional strikes, limited to the simple withholding labor and the advertisement of workers’ grievances. Instead, they inevitably embraced disorderly, coercive tactics like mass picketing and sit-down strikes to a degree that suggest that tactics such as these are essential if strikes are to be effective. Yet strikes of this kind have never enjoyed any legitimacy beyond the close ranks of militant unionists, radical activists, and some academic sympathizers. Their inherent affronts to property and public order place them well beyond the purview of what could ever constitute a viable legal right in liberal society; and they have been treated accordingly by courts, Congress, and other elite authorities. From this vantage, it becomes clear that an effective right to strike is not only an impossible distraction but a dangerous fantasy that prevents labor’s champions from confronting the broader, sobering truths that this country’s legal and political system are, at root, anathema to a truly viable system of labor rights and that the advancement of workers’ interests, though a crucial concern, must be pursued in a different way.
Keywords: Labor Law; Labor History; Right to Strike
JEL Classification: J5, J50, J51, J52, J53, J58, J59
Suggested Citation: Suggested Citation