Do “Unfair Labor Practice” Strikes Bypass the Obstacles Workers Face When Fighting Their Boss?

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By Justin Harrison, elected union officer in CWA 13000, currently retired, written in a personal capacity

It’s clear to everyone who’s fought back against their boss that labor law overwhelmingly favors the employers. While workers in the U.S. have the legal ‘right’ to join a union and engage in ‘concerted protected activity’ and strikes to pressure their boss on a wide range of issues, generations of National Labor Board rulings, Supreme Court decisions, and other case law precedents severely restrict these rights in practice.

Because of all the legal, political, and economic barriers to effective workplace direct action, established unions and unorganized workers are more frequently turning to Unfair Labor Practice (or ULP) strikes to disrupt business as usual and force an employer to settle disputes on our terms. A long, drawn out, open-ended ‘one day longer, one day stronger’ strike carries risks and hardships. On this basis, it’s argued that ULP strikes are a smarter way to strike and that a ULP strike is a legal loophole through the limitations and uncertainty of an economic strike since it invokes certain legal protections for striking workers and unions that an economic strike does not.

While there can be real advantages to using a ULP strike, this article will argue that at the end of the day, there are no shortcuts. The key question is what combination of job actions, strikes, and political pressure will force the employer to make the concessions we need to make our lives better – or, as socialists often say, to tip the balance of class forces. This means developing a sober power analysis and building workplace, community, and political organizing to address identified weaknesses and build the union’s power and ability to fight and win a short, sharp strike – whether economic or a ULP. The question is not ‘Should we go out on a short ULP strike instead of an open ended economic strike?’ but, ‘Will a ULP strike build our power and help win our demands?’

Earlier this month, the Minnesota Nurses Association (MNA) went out on a three-day ULP strike. The ULP strategy helped nurses from 14 hospitals (with 14 separate contracts) go out on strike all at the same time, resulting in the largest nursing strike in U.S. history. They hoped to use the size of the strike to overwhelm the hospitals’ ability to hire enough scabs – but the hospital administrators used their massive profits to pay scabs $10,000 a week to keep hospitals running. 

When bargaining resumed, the hospitals had not budged on the key demands. While the fight is far from over and Minnesota nurses are discussing how to escalate the struggle, evaluating the tactic of the ULP strike is essential as other healthcare workers, like nurses and professional staff at Temple University Hospital, are actively debating their strategy to win wages, safe staffing, and other demands in their next contract. 

How is a ULP strike different from a basic economic strike? A ULP strike is a strike provoked by an employer’s legally documented specific violation of the rules of engagement, such as refusing to provide a union with requested information, repeated contract violations, failure to bargain ‘in good faith,’ or disciplining people for union activity. Since the legal penalties are so minimal, employers violate labor law all the time, and there is usually no shortage of issues that a union or even unorganized workers can strike over and claim a ULP.

The Limitations Of The ‘Legal Strike’

Strikers walking a picket line under the watchful eye of the police and their employer’s private security services are forced to let scabs cross their line and steal their work or face being fired for ‘strike misconduct.’ ‘Wildcat’ strikes, partial strikes (including work slowdowns), intermittent strikes and sit-down (occupation) strikes are all ‘unprotected,’ which means workers can be disciplined or fired without legal recourse for engaging in these actions. 

A quick read of the National Labor Relations Act reveals that while workers are ‘guaranteed’ the legal right to join a union and strike, the overwhelming emphasis of the law is on prohibiting any effective tactics and strategies historically used by workers to win strikes. The Labor Board and various court rulings are explicitly clear that the reason these kinds of actions are illegal is because they are so effective at disrupting business as usual. For example, in Automobile Workers v. Wisconsin Board, the court ruled that “to make the [ability to] strike an absolute right… the effect would be to legalize… not only the intermittent stoppages such as we have here, but also the slowdown, and perhaps the sit-down, strike as well.” In the case of occupations and sit-down strikes, the Supreme Court has ruled that they are an unconstitutional expropriation of the employers’ property.

On top of all this, while you theoretically can’t be fired for engaging in a legal strike, the law lets employers ‘permanently replace’ strikers instead, a legal sleight of hand allowed by the Supreme Court that amounts to the same thing – you still lost your job!. Even when you do everything right and follow all the rules, the boss can still fire you and make you fight it out in court. The burden of proof is on the union or individual to prove that the employer fired them for protected union activity and not some other reason such as violating a work rule or calling out sick too often. 

While Biden’s labor board (allegedly the most ‘pro-union’ NLRB in a generation) has moved marginally faster than Trump’s, workers illegally fired for union activity have often waited years to get their jobs back. The ‘Memphis 7’ finally got their jobs back 8 months after being fired for union activity, but over 100 Starbucks workers who have been illegally fired for union organizing have been given no respite by the NLRB. Even when the NLRB rules in favor of a union, employers with deep pockets can sue individual workers, unions, and even the NLRB itself and fight it all the way to the Supreme Court.

Put all this together and U.S. labor law is some of the most restrictive in the world. With extremely narrow legal protections for workers, not just on direct actions like strikes but on free speech as well. The wrong trigger word said in the wrong context can mean the difference in a workplace action being judged as legal or illegal and consequently ‘unprotected.’

In many cases, it’s our own union leadership and lawyers that hold us back for fear of having to fight a long uphill battle through the courts while strikers are starved into submission, or of the union being fined for ‘breaking the rules.’ This often results in a hypervigilant monitoring by a union of its own members’ activities, speech, and social media, and an over reliance on the ‘legality’ of a strike with the lawyers reviewing all press messaging, slogans, picket signs, and other material.  

All this legal calculus minimizes the fact that our real power flows from our control of production and our ability to hurt the boss where it counts – in their wallet – by shutting down operations. There are many examples from recent history of militant strikes that ‘followed all the rules’ but failed to stop production, and ended in bitter defeat after a long fight on the picket line and in the courts. While the legal complications are real and we shouldn’t be dismissive of them, the conservative ‘by the rules’ approach of many union officials and staff locks most strikes into a ‘one day longer’ battle of attrition between the employer and the union, a battle the employer is uniquely suited to win, as opposed to adopting a clear strategy of escalation.

The “Unfair Labor Practice” Strike

There can be real advantages to conducting a ULP strike instead of an economic strike. The biggest advantage is that workers involved in a ULP strike cannot be ‘permanently replaced,’ as the employer is legally obligated to rehire all strikers at the end of the strike. For nonunion workers, a ULP is often the only kind of strike they can organize and be reasonably sure they will get their job back afterwards. In 2012-2014 during the ‘Fight For 15’ campaign, SEIU organized national ‘days of action’ and one day strikes using ULPs to protect individuals and small groups of workers who walked off the job in various non-unionized fast food and retail restaurants (as part of a broader public campaign, the nonunion workers were walked back to work the next day surrounded by activists, lawyers, and local politicians to make sure they didn’t get fired).

But ULP strikes replace the problems of  ‘one day longer, one day stronger’ with a new set of tactical and political problems. A time-limited ULP strike may feel safer and less risky than an open-ended strike, but letting the boss know the duration of the strike up front makes it easy for them to prepare by hiring scabs and stockpiling materials. A ULP strike cannot, legally, be linked to any of the broader issues at stake such as contract demands. This limits what the union can say openly about the strike which makes it harder to mobilize union members and build broader community solidarity. 

If the employer agrees to settle the specific ULP, the union must call off the strike even if none of their other demands have been met. If the union is using the ULP as part of a broader bargaining strategy, this means going back to work after the strike with none of the other core issues settled. Violating these rules, even accidentally, opens the union to counter charges by the employer against the union which can end up with the strike being found illegal by the NLRB.  Repeatedly striking over different ULPs – or going on an economic strike after a short ULP strike –  may be determined to be an illegal intermittent strike. A final determination of whether or not a specific strike is a valid ULP strike is made after the fact by the NLRB, sometimes years later if it gets tied up in the courts. 

In 1995, the Detroit News newspaper unions filed ULPs and went on strike against the aggressive demands of the owners for serious concessions. The strikers used a lot of creative tactics to bring pressure on the employer but fundamentally stayed within the legal rules and did not stop scabs from crossing the picket lines. Two years later, the unions called off the strike, with many of their members having lost their jobs after being permanently replaced even though the NLRB had ruled in favor of the strikers. The boss took the NLRB to court and in 2000, 5 years after the start of the strike and 3 years after it ended, the federal courts overturned the ULPs, leaving hundreds of workers out in the cold without their jobs, healthcare, and pensions.

No Shortcuts – Strikes Have to Disrupt Profits to Win

Particularly in education, healthcare, and other essential public services, strikes rapidly become politically significant as their impact spreads through working class communities. Intentionally fighting for demands that are not just narrowly focused on the workers’ wages and conditions, but improve the affordability, accessibility, and safety of these services for the communities served is critical for building a broad base of public support for the strike and brings political and economic pressure on the employer to settle.

A ULP strike can be effective when used as part of an overall strategy to win clear demands, along with safety strikes, grievance strikes, and economic strikes. Like any good tool, it has its specific use and is not a one-size-fits-all solution to overcome the legal barriers to effective action. We shouldn’t be afraid to use all the tools at our disposal to strike effectively, but we should be clear that just as there is no safety in staying within the tight legal constraints of a ‘one day longer, one day stronger’ economic strike, there is no magical protection in a ULP strike. 

The overall experience of generations of class struggle teaches us that the opposite is true. A far more important factor is a union leadership prepared to lead from the front, mobilizing their resources to stop scabs and shut down production. This means challenging the boss’ courts, police, and politicians. It also means engaging, preparing, and mobilizing rank and file union members for the political, legal, and economic challenges of an effective strike, whether it’s a ULP or an economic strike. The Labor Board and the courts are not here to ‘protect us’ but to regulate strikes and other workplace conflicts in the interests of the individual employer and the overall stability of the capitalist economic system.  

When confident, aggressive leadership has challenged the employer and the courts, supported the militant actions of workers on the picket line to defy court injunctions, and organized mass pickets to block scabs and shut down operations, they have been able to win. In 1994, Ron Carey led the Teamsters in a wildcat safety strike against UPS when the company unilaterally doubled the weight limit of packages to 150 pounds. Carey’s national leadership team had to confront the courts, the bosses and corrupt local union officials who publicly undercut and scabbed on the strike. 

Despite these complications, 90,000 Teamsters took the strike to the streets and effectively shut down UPS’ operations in the North East and key Midwest cities. Carey publicly defied the massive political pressure, court injunctions and million dollar fines and threatened to escalate instead of backing down. Within 24 hours the strike was over. UPS withdrew most of its lawsuits and agreed to the union’s terms. While some legalities of the strike were tied up in the courts and settled years later the union had already won where it counted, in the workplace.

Winning a strike (or winning a strong contract without striking) is not just about good organizing or a clever approach to the law. It’s about recognizing the core class conflict involved – the irreconcilable differences of interest between worker and employer – and seizing every opening to aggressively fight for our demands even if it means breaking the law.