When Striking Isn’t Enough: A Q&A With Labor Law Professor Catherine Fisk
“The solution is give workers the right to unionize without first enduring an endless, brutal, one-sided anti-union campaign.”
I n 1981, President Reagen takes to the TV waves to deliver a public threat to the Professional Air Traffic Controllers union — representing 13,000 people — who warned of an impending strike:
“…I must tell those who failed to report for duty this morning, they are in violation of the law. And if they do not report for work within 48 hours, they have forfeited their jobs and will be terminated; end of statement.”
Interestingly enough, Ronald Reagan was formally a very union man–he’d been president of the Screen Actors Guild in fact. During his campaign for office, Reagen identified the very white, male, conservative union with lots of veterans — the Professional Air Traffic Controllers union — as precisely his demographic. Reagan committed his support to PATCO if PATCO, in turn, offered theirs.
All was simpatico until PATCO threatened to strike. A strike from air traffic controllers not only meant certain economic peril — they control air traffic and thus a huge swathe of the American economy — but it was also illegal, as they were federal workers.
The government offers the air traffic controllers a 5% raise, which was unprecedented for the federal government — this was a huge raise — but the union felt their salaries should match that of the pilots. They said, “we asked for at least 10% more, and we’re serious.”
And they were. They went on strike and Reagen fired them. All 11,000 air traffic controllers who remained on strike. And not only that, he also banned them from working as air traffic controllers for life.
What Reagan managed to do was dramatically overhaul the narrative and make strikebreaking patriotic. He cast himself as the man trying to take care of the American everyman, instead of the greedy unions keen to upend the system for their own gain.
And this socio-political alchemy had seriously rippling effects; unions realized that employers wanted them to strike so that they could, in turn, fire them and replace them with nonunion workers.
This created the very atmosphere in which we find ourselves today; union members don’t want to strike as their leveraging power is all but destroyed. A decade after the strike, President Clinton lifted Reagan’s ban on air traffic controllers getting their jobs back, but the damage to the labor movement had been done.
“Striketober” has the American economy rattled. Dozens of companies — from Kaiser and Kelloggs to Steel Workers and San Antonian musicians — have picketed, protested, and walked out on their jobs this year, and continue to do so. A record 4.3 million people quit their jobs in August — primarily retail and food service workers — prompting what is being called The Great Resignation.
This “post pandemic” environment has working people exhausted and angry; they’re raising their voices to say that the labor market doesn’t reflect their work, support their livelihood, or honor the sacrifice they’ve given to keep our economy’s head above water.
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There’s no question there’s momentum, but what do these strikes mean when put in the context of the Labor Movement’s continuum? Are we actually in a pivotal moment or will these strikes collapse beneath capitalism’s relentless churn? What can history tell us about where we’re going, if anything at all?
I got the chance to pose these questions to Catherine Fisk, a Berkeley professor and author specializing in employment and labor law.
People called October “striketober,” and a bonafide “strike wave,” but in history-leaning articles I’m reading, the scale of the action is not very large by the labor movement standards. (In 1979 there were 235 work stoppages involving more than 1,000 workers. So far this year there have been something closer to sixteen.)
So how would you describe what’s happening? It still seems significant regardless of how it compares to the past? How are you conceiving of this moment in the continuum in the fight for workers rights?
Union density is at a historically low level in the private sector — indeed, it’s lower than when it was illegal to join a union. So it’s no surprise that the number of strikes is low compared to the 1930 through 1970 period, the number of workers in unions is at a historic low.
(Public sector workers are more densely unionized, but it is illegal in most states for any public sector worker to strike, and it is illegal everywhere for a federal government worker or a police or fire worker to strike.)
The risks for workers to strike are huge. Beyond giving up a paycheck for the duration of the strike, employers routinely threaten to permanently replace striking workers. (Permanent replacement is, as a practical matter for most workers, the same thing as being fired.) There is a legal difference — a worker doesn’t lose their job until they are in fact replaced and they retain a limited right to reinstatement when/if their job comes vacant again.
Non-union workers — no matter how angry or badly treated, typically don’t go on strike — they’re exponentially more vulnerable. I’m thinking about the 10–13% of the workforce that work a gig job full-time.
How can workers organize and push back without that union infrastructure underpinning their efforts?
There have been a number of strikes by workers without unions. The Fast Food Forward and Fight for 15 and a Union campaigns began with a bunch of short strikes. There have been walkouts by Google workers protesting the company’s failure to address workplace harassment.
It takes a tremendous amount of effort to organize a strike, and few workers have access to that kind of organizational skill, information, and experience without a union. (Fast Food Forward and Fight for 15 were supported and funded by the SEIU.)
Should workers try and unionize first?
Many workers have to strike in order to get a union, or to get from winning a union election to winning a first contract, because employer opposition to unions is so overwhelming. So the solution cannot be to unionize first and then strike.
Rather, the solution is to change the law to give workers — whether they are classified as employees or contractors — a right to unionize without first enduring an endless, brutal, and one-sided anti-union campaign.
Is it about getting these big tech companies to (arguably properly) classify their workers as employees?
That’s part of the solution. Companies want to designate workers as independent contractors, as Prop 22 does, for a variety of reasons. Part of it is to allow the company to pay less than the minimum wage, no overtime, no sick leave, no family leave, no legal right to a safe work place, etc., etc. But another part is to prevent workers from unionizing.
In Seattle several years ago, the city enacted a law authorizing unionization by for-hire drivers. Uber, Lyft, and the Chamber of Commerce sued, arguing that unionization by the drivers violates antitrust law.
A hidden provision in Prop 22 was intended to prevent unionization by independent contractor drivers by preventing the California legislature from enacting a law that would give an independent contractor union a defense to federal antitrust liability.
The federal antitrust enforcement agency, the Federal Trade Commission, is now asserting that antitrust law does not prohibit collective bargaining by workers who are classified as independent contractors, but it’s a slow process to change the law.
What do you think about Biden’s only commentary on the strikes?
“They have a right to strike, and they have a right to demand higher wages, and the companies they’re striking on are doing very well. I’m not going to get into the negotiation, but my message is: If you think that’s what you need, then you should do it.”
Do we need a president willing to openly and directly — not just with rhetoric but with policy — supporting the labor movement in order to exact real change?
Yes. We desperately need labor law reform so that workers actually have a right to unionize and to bargain collectively regardless of whether they are a contractor or employee, or work for a franchise fast food restaurant or for one run by the corporation that owns the brand, and regardless of whether a majority of the workers vote to unionize.
Every worker should have the right to bargain with a group of like-minded others, and the employer should have NO legal right to oppose their choice. That kind of reform has been proposed by many (including by me). But it will require eliminating the filibuster, and Joe Biden and the American public have billions of reasons to do that.
One straightforward solution would be to switch the default — by default, workers should have the right to negotiate collectively, on a sector-wide basis. Any worker who wants to negotiate individually could vote to opt out, instead of opting in.
You told NBC: “On the low-wage side, these workers were essential. They faced high death rates but couldn’t afford housing or health care. Now there’s this activism borne of desperation.”
I have such a bee in my bonnet about calling all these workers “essential” and then hanging them out to dry. Essential feels like a euphemism for “expendable” at this point.
Yes, “essential” was a label that was put on people who the government wanted to risk their lives during the pandemic to provide goods and services to everyone else. If workers were paid commensurate to the risk, as police and fire workers are, it’s one thing. But for minimum wage workers, or below minimum wage workers like Uber/Lyft drivers, it’s appalling.
Can you talk a bit about how we found ourselves here and where you think things might evolve?
For the past 40 years at least, politicians and pundits have focused on corporate leaders and shareholders as bringing wealth to the country. The pandemic illustrates what low-wage workers have known forever — that everyone depends not on CEOs or shareholders but on the people who actually make and do stuff.
We have levels of economic inequality that are unprecedented in American history and that may be inconsistent with a healthy democracy. Perhaps the greatest significance of the current awareness of exploitative labor conditions in the US will be to reorient public policy to focus on empowering and compensating labor rather than just corporate leaders and investors.
