No-Strike Clauses: Tips for First-Contract Bargainers
In this year's negotiations at the Wabtec locomotive plant in Erie, Pennsylvania, the United Electrical Workers is seeking to win back the right to strike over grievances mid-contract. UE had long maintained that right in its contract with the plant's former owner, General Electric, but the union was forced to agree to major limitations in 2019 after Wabtec took over. Unresolved grievances have piled up ever since. Photo: UE.
One thing you can be sure of when bargaining your first contract: management will demand a contract clause barring strikes while the agreement is in effect.
No-strike clauses took hold in the 1940s. During World War II, the American Federation of Labor, the Congress of Industrial Organizations, and defense industry executives issued no-strike/no-lockout pledges to guarantee production. When the war ended, many union leaders, apparently seduced by the experience of “labor peace,” agreed to similar pledges in their collective bargaining agreements.
Today, an overwhelming percentage of U.S. labor contracts, 94 percent according to a survey by the Bureau of National Affairs, contain no-strike clauses.
NO-STRIKE LANGUAGE
A typical no-strike clause reads: The union hereby agrees that no employee shall engage in, induce, or encourage any strike or work stoppage. The union also agrees that neither it nor any of its officers or agents will call, initiate, authorize, or participate in any such strike, work stoppage, slowdown, sickout, or other withholding of services.
Once a no-strike clause is ensconced in the contract, it is almost impossible to remove it. For years to come, employers will be free to fire workers who have the temerity to stop work to protest abusive employer conduct or blatant violations of the labor agreement. Moreover, courts may order the union to pay the employer for lost income or property. To top it off, the employer may be permitted to rescind the entire labor agreement.
Note: It is not widely known, but provisions in U.S. labor law allow workers to violate no-strike provisions in order to protest “abnormally dangerous” working conditions or serious unfair labor practices that “substantially undermine” the integrity of the contract (see Section 502 of the National Labor Relations Act and the U.S. Supreme Court’s Arlan’s Department Store decision). Nonetheless, few arbitrators or courts have had the courage to enforce such laws to overturn discharges or dismiss employer lawsuits.
INITIAL RESPONSES
Initially, a union may want to assert that a no-strike provision is so anti-union, so deep a concession, or so dangerous to members and officers that it will not even consider allowing such language in the contract.
Other Countries
French law says the right to strike is a constitutional privilege that cannot be waived in a collective bargaining agreement.
Canada, on the other hand, says strikes are only lawful before a labor contract takes effect or after it expires—in essence creating mandatory no-strike clauses.
Many U.S. states prohibit government employees from striking at any time. Nonetheless, public authorities invariably demand that public sector contracts include no-strike clauses.
Under the NLRA, however, a no-strike clause is a “mandatory” subject of bargaining. This means the union must discuss the matter in good faith with the employer and explain its objections.
Nothing in the NLRA, however, requires a union to agree to a no-strike clause. Moreover, because a no-strike clause is a mandatory subject of bargaining, the union may strike to keep it out of the contract.
If the union cannot keep a no-strike clause out of the contract, there are several ways to make it less damaging. As a first matter, the union should demand that the language be clearly restricted to the contract term. The union must be able to strike when the contract expires.
Second, the union should argue that the ban on strikes be limited “to matters that are subject to the union grievance procedure.” If a dispute does not fall within the definition of a grievance or, for other reasons, cannot be taken to binding arbitration, why should the union disarm itself by agreeing not to strike?
Third, the union should demand that strikes be permitted in certain circumstances. One is when all of the pre-arbitration steps in the union grievance procedure have been exhausted (like in the GE contracts mentioned below.) Another should permit strikes against serious unfair labor practices or unusually dangerous working conditions.
No-Strike Bottom Line
One astute labor observer, journalist Hamilton Nolan, noted in In These Times the profound differences between working under a no-strike clause and preserving the right to strike:
“The practical effect of no-strike clauses is to produce obedient unions whose real power is confined to brief periods during contract bargaining, and no other time. I have had personal experience on both sides of this.
“I once worked at a company under a union contract that did not have a no-strike clause. When problems arose—and they did—we forced the company to sit down and meaningfully bargain with us to work things out. They knew that if they didn’t, we would walk out. The union was strong, and won meaningful gains we wouldn’t have otherwise had.
“Then we signed a second contract that included a no-strike clause. After that, the new owners proceeded to treat the union with disdain and commit various outrages with impunity, secure in the knowledge that we would keep working no matter what.
“By giving up our right to strike, we had sentenced ourselves to forced humiliation that could not be balanced out by any number of social media campaigns or outraged statements by the union.”
Another should permit the union to respect bona fide picket lines set up by other unions (i.e., sympathy strikes). For example, the Teamsters national UPS agreement protects drivers’ right to refuse to cross primary picket lines.
Fourth, the union should demand the removal of any language barring it from taking part in other pressure tactics during the contract term: for example, peaceful demonstrations, rallies, bannering, and boycotts.
Fifth, the union should demand language that protects itself if workers engage in spontaneous work stoppages without direction or leadership by the union. Example: “The Union shall not be liable for damages resulting from unauthorized actions of its members.”
GOLD STAR UNIONS
Some unions have bargained deep concessions from employers on strike rights. The IUE-CWA contract with General Electric has long allowed the union to strike mid-contract if a matter cannot be resolved in the grievance procedure.
The Teamsters Central Region UPS Supplemental Agreement allows the union to strike over grievances that are not resolved at the last step of the grievance process, which involves the company president of labor relations and the union national package director.
The Teamsters National Master Freight Agreement allows the union to strike if the employer fails to carry out a final decision of a grievance committee or reneges on a settlement.
The Longshore (ILWU) contract with the Pacific Maritime Association allows the union to refuse work: (1) in case of a good faith fear of a health or safety risk; (2) in the event of an “onerous” workload; or (3) to avoid crossing a bona fide picket line.
Labor attorney Robert M. Schwartz is the author of No Contract, No Peace: A Legal Guide to Contract Campaigns, Strikes, and Lockouts. This article was written with assistance from retired UE organizer David Cohen and Richard de Vries of Teamsters Local 705.
