The Right to Strike Labor Rights and Worker Unions

1. The National Labor Relations Act ensures workers’ right to strike, especially in sections 7 and 13. Section 13 is most explicit about the right to strike, asserting, “Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right,” (National Labor Relations Board, n.d.). However, there are limitations on the right to strike. Not all collective bargaining agreements between labor unions and management will include provisions protecting the right to strike, and this is especially true for industries with services deemed essential. Strikes are legal when the workers affirm a clear purpose for striking; in other words, strikes cannot be arbitrary. The timing of the strike must also be relevant and as non-disruptive as possible. Workers should absolutely continue to have the right to strike, and that right should not be wantonly inhibited. However, labor unions are strongly advised to negotiate contracts that clearly delineate the conditions of strikes and ensure that all strikes are judicious and in accordance with NLRB principles.
The NLRB outlines two main striking conditions: economic strikes and unfair labor practices strikes. In both these cases, the labor union should be able to specifically detail the unfair practices or wage disputes. According to the NLRB, economic strikers have far fewer rights and less leeway than unfair labor practices strikers. Unfair labor practice strikers cannot be replaced by permanent workers, and workers are entitled to get their jobs back after the strike ends. With economic strikers, the employer can hire new replacement workers on a permanent basis. The striking workers are not automatically entitled to reinstatement (National Labor Relations Board, n.d.). It is understandable that these limitations be placed on labor unions, to prevent unnecessary stoppages of work, and to balance the needs of workers with corporate interests.
2. Mandatory arbitration for resolving contract disputes or in the final step of negotiating collective bargaining agreements has become commonplace in public sector jobs in most states (“Using Arbitration to Resolve Legal Disputes,” n.d.). Arbitration has been hailed for its efficiency and cost-effectiveness, which is why mandatory (binding) arbitration is used most often in public sector or essential services. Using arbitration prevents the unnecessary buildup of legal fees, avoids using the courts to settle contract disputes, and encourages swift and potentially non-biased resolutions. Yet because it severely restricts the options of labor unions after arbitration, binding arbitration is noticeably skewed to the interests of management (Reed, n.d.). Therefore, binding arbitration should be carefully constructed when it is included in labor contracts.
There are also potential problems with the processes used to locate viable third party arbitrators. Bias or conflict of interest is possible, which could inhibit worker rights overall. However, both sides of the labor dispute typically nominate arbitrators, and a consensus must be reached to avoid bias (Reed, n.d.). The arbitration process typically lasts only a few hours, which is beneficial in the sense that it promotes rapid conflict resolution. However, the arbitration process might be hastily conducted and could therefore hurt some parties’ ability to make a case (Reed, n.d.).
Arbitration is also by definition confidential, the process not part of the public record. This is generally favorable to management, but could equally benefit a labor union suffering from a PR scandal. Although the labor union can use its own public relations and media relations campaigns to publicize its grievances, the privacy afforded to arbitration processes could favor management. Ideally, arbitration would be preceded by a period of mediation to enable ongoing negotiations but in the interests of speed, meditation is usually skipped entirely.
3. Changing the current state of labor and management relations could result in confusion and inefficiency. However, the system has become overly adversarial and less productive than it could be (Eastlund, n.d.). Moreover, the system evolved in the pre-information economy where career paths were more clearly defined and the global labor market was less fluid than it is today. Therefore, the current state of labor and management relations should be changed to reflect the realities of the current labor market and emerging job sectors.
The “demise of the traditional American labor model were sown from within,” due to an inability to recognize or respond to change, and also to a failure to acknowledge “mutual responsibility for creating and distributing wealth,” (Schneider & Stepp, 1998 p. 1). The workplace of the 21st century is vastly different from what it was even a few decades ago. Even in the manufacturing sector, the public sector, and other job arenas in which a bureaucratic corporate culture prevails, workers expect a greater degree of self-determination, empowerment, quality of life, and opportunities for growth and development.
In the private sector, company cultures have changed to respond to the changing needs of workers. Human resources and organizational psychology research has generally pointed to the quantitative benefits to companies that build worker satisfaction into their company policies (Fossum, 2012). Worker retention, employee development, and work-life balance are some of the factors being woven into organizational policies and have in many cases reduced or eliminated the need for labor unions.
The public sector has been slower to respond to change. Labor unions remain not only viable but essential for protecting the rights of workers in many other sectors. Changing the system should entail more robust legal and political supports for worker rights, and a shift in labor rights discourse.
4. Public service and essential services professionals still need to exercise the right to strike, if for no other reason than to protect First Amendment freedom of speech and assembly rights. If the right to strike is suspended on the grounds that it would be disruptive, workers would lack any forum with which to initiate change. The United States has increasingly shifted to labor laws hostile towards worker rights and overly protective of employers. As Pope, Bruno & Kellman (2017) claim, “labor must also reclaim the right to strike and confront the deep structural disabilities that impede unions from challenging corporate power,” (p. 1). Striking is a form of civil disobedience, a fundamental right preserved in the Constitution. Because striking is a form of free speech and lawful assembly, no union should be expressly prohibited from exercising the right to use civil disobedience. The excuses used to prohibit strikes are generally untenable; usually workers strike as a last resort given the risks that action entails.
Interestingly, strikes have proven effective in promoting positive change. “Workers have never won a significant piece of workers’ rights legislation without first engaging in exactly the kind of strikes and other forms of noncooperation that current labor laws forbid,” (Pope, Bruno, & Kellman, 2017, p. 1). If management were listening more closely to the needs of workers, through an improved organizational culture responsive to and responsible for its workers, then striking might not be necessary in as many cases. Striking is a demand for attention, a means to draw the public eye to a perceived in justice and to create positive change for the current and future generations of workers. Just because the workers are in an essential services sector does not inhibit their basic human rights.
5. Voters lack the knowledge needed to make important decisions about labor law. Too many American voters reflexively respond to the vitriolic viewpoints spewed in the media, and lack sufficient credible information to make an informed decision. Therefore, no labor laws should be placed before a public that has generally been trained to mistrust labor unions and their intentions. Elected representatives are for the most part similarly situated, voting in ways they believe their constituents want them to vote rather than based on facts. Administrative agencies populated by professionals competent in the field of labor law and labor relations would be far more capable of drafting fair public policy.
The public opinion on labor rights has shifted somewhat, evidenced partly by the popularity of Bernie Sanders (Pope, Bruno & Kellman, 2017). If the general public is responding to a paradigm shift in thinking about labor, then it might facilitate more intelligent discourse that could lead to more robust protection for worker rights. As wealth disparity continues to grow, many Americans might start to recognize the role that labor law plays in exacerbating—or potentially reducing—disparity.
Workers themselves also need to take responsibility and play a key role influencing public policy and discourse. As Eastlund (n.d.) points out, increased collaboration between workers and employers will help reduce antagonism and lead to more fruitful discussions. Leaders in the labor rights movement can place increasing pressure not just on lawmakers but also on the NLRB. Perhaps most importantly, public relations and media relations strategies can be used to shift voter opinion in case the NLRB and other government agencies stagnate in their willingness to change American labor laws and policies.
6. A vigorous global economy makes the right to strike more important than ever. The cost of labor is being driven down by the common market. As American workers do need to compete with workers from countries with lower costs of living, it is important to protect Americans from abusive or exploitative labor practices. Unregulated and responsible only to market forces and shareholder value, companies (and the public sector as well) will override worker rights. The worker rights movement, which includes striking as a primary tactic, is essential for promoting human rights.
If the labor movement assumes the mantle of a human rights movement, adopting rights-driven strategies, then it may be more successful in creating a global movement towards improving workplace standards and wages (Pope, Bruno & Kellman, 2017). The goal should be to create a thriving global market economy while improving social justice and human rights. Suppressing the right to strike and inhibiting the rights of workers are socially unjust policies that are unsustainable in the long run. Workers strike for different reasons and not just for improved wages. Continuing to suppress the right to strike will lead to further civil unrest, and could be damaging to the stability of the nation. Misperceptions about the role of labor unions could in fact be why many white Americans voted for Trump.
When American workers strike, they take back their power and affirm their role in creating a government “by the people.” Strike lines are boundaries workers are collectively unwilling to cross. Whether securing their financial futures, ensuring employers fulfill their contractual obligations, or maintaining high quality of life or secure their dignity, worker rights are human rights. American workers need to prevent their wages from being traded on the global market, while also advocating for more worker-friendly organizational cultures.




References

Eastlund, H. (n.d.). Labor-management relations. PA Times. Retrieved online: http://patimes.org/labor-management-relations-return-collaboration/
Fossum, J. (2012). Labor Relations. 12th Edition. Kindle Version.
National Labor Relations Board (n.d.). The right to strike. Retrieved online: https://www.nlrb.gov/strikes
Pope, J.G., Bruno, E. & Kellman, P. (2017). The right to strike. Boston Review. Retrieved online: http://bostonreview.net/forum/james-gray-pope-ed-bruno-peter-kellman-right-strike
Reed, J. (n.d.). Arbitration in labor disputes. Retrieved online: https://www.calpelra.org/pdf/Reed,%20Jeff.pdf
Schneider, T.J. & Stepp, J.P. (1998). The evolution of U.S. labor-management relations. Retrieved online: http://www.restructassoc.com/case/06.pdf
“Using Arbitration to Resolve Legal Disputes,” (n.d.). Find Law. Retrieved online: http://adr.findlaw.com/arbitration/using-arbitration-to-resolve-legal-disputes.html