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The So-Called Right to Strike

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In several of the highly publicized strikes in recent years, including the strikes against Caterpillar and the Detroit newspapers, company management continued operations during the strike by hiring permanent replacement workers. Permanent replacements are hired not just for the duration of the strike but to continue on after the strike may be settled. Without them, the outcomes of the strikes would probably have been different.

As a result of the successful use of replacement workers, there have been, predictably, calls to make it illegal to hire them. The sponsor of a bill in Congress that would do so is Representative William Clay (D-Mo.). He argues that allowing employers to hire permanent replacements “undermines the right to strike.”

But before deciding whether the “right to strike” is undermined, we ought to stop and ask whether there is really any right to strike at all.

“The right to strike” is one of those phrases, so widely used, that gets in the way of rational thought and props up a highly authoritarian system of government labor-relations regulations. Most people would say, “Of course there is a right to strike,” if asked. But mere widespread belief in an idea does not make it true. Starting from the premise that all people must interact with others peacefully, what can we say about this “right”?

Employers and their employees have a contract, mutually agreed to as contracts must be. The contract specifies the obligations of the parties. It may be a breach of the contract for the employer to fire an employee and it may also be a breach for the employee to quit. If a strike, a mass refusal to work, involves a breach of the contract, it can hardly be called a right. For example, if construction workers under contract go on strike for higher pay during a building project because they know they have a high degree of leverage over the construction company at that time, they are not exercising a right. Employees no more have a right to breach contracts than employers have.

Most strikes, however, occur in the absence of a contract. Let us say that the contract with the construction workers has expired and the workers choose to walk off the project then. (This could occur with or without the presence of a union; whether the workers are represented by a union or not makes no difference as far as their rights go.) They certainly have the right to do that. Any attempt to compel them to work in the absence of mutual agreement would be a violation of their rights.

At this point, the two parties are free to take any peaceful steps to try to accomplish their objectives. The workers may advertise their dispute. They may hold rallies. They may try to persuade the company to give in to their demands. They may attempt to persuade others — workers, consumers, businesses — not to deal with the company.

Consider picketing, a feature of almost every strike. Picketing, say the defenders of the “right to strike” concept, is necessary for the workers if they are to publicize their labor dispute. It is one means of doing so, but the right questions to ask are, Where does the picketing take place and how is it conducted?

If the workers confined their picketing to property they own or on which the owner has given his consent to picket, there is no problem. But picketing invariably takes place either on the property of the employer (without his consent), where it amounts to trespass, or on streets and sidewalks. Public ownership of streets and sidewalks complicates matters, but under the First Amendment, no one could legitimately question the right of workers to picket there. However, picketers may not engage in actions that interfere with the rights of others to use the streets and sidewalks or with the rights of those who wish to freely enter and leave the employer’s place of business.

Would anyone argue that employers are entitled to send people to surround the homes of striking workers to keep them from coming and going as they please? No doubt, this would put pressure on them to return to work on the company’s terms, but it would and should be condemned as a violation of the rights of the worker. Striking workers have no more right to engage in this conduct than employers who are undergoing a strike have.

Consider also the use of intimidation and violence to keep other people from working for the firm during the strike. Suppose that the construction company contracts with other workers to continue the building, but when the replacement carpenters, plumbers, and electricians show up, they are met by a picket line and told that they will be beaten up if they cross it. There is no right to employ violence against the life and property of others in order to keep them from working, but “right to strike” advocates often say that there is.

The replacement workers (“scabs” in union lingo, a hate-filled epithet that passes without reproach in politically correct circles), are said to be doing something heinous — “taking another man’s job” — and therefore deserving of whatever vigilante justice the strikers choose to dish out. According to this line of argument, the intimidation and violence that is part and parcel of many a strike is just a matter of self-defense.

The weakness in this attempt to justify coercion is the contention that the vacated jobs belong to the strikers. While it is common for a person to speak of “my” job, in fact a job is not the property of the worker who performs it. He has only a contract to perform labor for another party. This no more gives the worker a property right in “his” job than it gives the employer a property right in “his” employee.

What the “right to strike” really boils down to is a claimed right to breach a contract by ceasing to work, to trespass, and to interfere with the freedom of other people to peacefully interact. We can emphatically say that there is no such right.

This conclusion will leave many people aghast. How would workers ever get better pay and working conditions if they couldn’t strike? Don’t workers need the government’s blessing for the rights-violating conduct that strikes entail so that they can be “effective?” Several answers can be given.

First, the duty of the government is to maintain the rule of law — to protect equally the rights of all citizens. It is no more a proper concern of government whether workers succeed or fail in their attempts to negotiate what they regard as better contractual terms than whether homebuyers succeed in negotiating better terms in the purchase of a home. Under the rule of law, the government remains as neutral in the relationships between employers and employees as in the relationships between homebuyers and homesellers, intervening only if someone resorts to fraud or coercion. It is an abuse of power for government to help some citizens at the expense of others.

Second, it is a mistake to believe that improvements in pay and working conditions would come to a halt if strikers were treated as quitters, i.e., having no “right” to violate the property and contract rights of others. The compensation that employers must pay to attract and keep the workers they need is determined in the market for labor. The price that must be paid for the many different kinds of labor depends on supply and demand conditions. When market conditions dictate, wages go up, as they did long before there were unions and as they do now in the many places where workers represent themselves. It is a myth that strikes and the threat of strikes are responsible for rising wages and improving working conditions.

Those who plead for special labor laws to make it easier to form unions and for them to “win” strikes are asking for the right to do to others what they would never consent to having others do to them. Rather than piling one coercive measure upon another, such as the proposal to outlaw the hiring of replacement workers, we should instead return to the neutrality and symmetry of the common law in labor relations.

What would this entail?

First and foremost, it would require that the right of individuals to decline to associate with a union be protected. Under the National Labor Relations Act (NLRA), union representation is made a collective decision. If a majority of the workers in a designated “bargaining unit” vote in favor of union representation, the law states that the union becomes the exclusive representative of all the workers. This collectivizes a decision that should be an individual decision — accepting another party as your representative or agent. Enforcing this provision means threatening legal sanctions against workers and employers who would prefer to ignore the union, something they have the right to do.

Making this legal change would put unions in the same position as other service businesses. They would have to attract voluntary membership or convince people to contract with them. If workers want to join or contract with them, fine. If employers want to recognize and contract with a union representing some or all of the workers, fine. The right not to join or contract with unions must be equally protected.

Second, restoring the common law would mean that unions would no longer have the “right” to compel employers to bargain with them. The law obligates employers to “bargain in good faith” with union representatives, but this is coercive. To threaten force against one party for choosing not to bargain with another is to violate his rights. If union leaders approach a business owner and ask to meet to negotiate a new contract on behalf of some or all of his workers, they are completely within their rights, but so is the business owner if he says, “No, I do not care to do business that way.”

Third, the law’s current prohibition against employer-assisted labor organizations would have to be repealed. At one time, employers could set up company unions, as is now common in Japan. The NLRA makes it illegal for an employer to do anything to “dominate or assist” a “labor organization.” Court decisions have even taken this so far as saying that establishing employee-involvement programs to discuss various aspects of work is illegal. Subject to the terms of their contracts with workers, employers have a right to set up any sort of labor relations system they desire. It is another abuse of government power to interfere with that right.

Fourth, the law must permit no attacks upon the property rights of workers or employers. The law explicitly concedes to unions a “right” to picket on the employer’s property and implicitly concedes a “right” to use intimidation (but not “too much”) against replacement workers and others trying to do business with the company. Violence is not legal, but law enforcement officials often turn a blind eye to it. That must all change if “equal protection of the laws” is to be something other than a hollow phrase.

The “right to strike” is one of those regrettable legacies of the nation’s romance with statism during the New Deal. If the government were doing its job, the “right to strike” would be whittled down to nothing more than the right to pursue your own interest while respecting the freedom of others to do the same.

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    George C. Leef is the research director of the John W. Pope Center for Higher Education Policy in Raleigh, North Carolina. He was previously the president of Patrick Henry Associates, East Lansing, Michigan, an adjunct professor of law and economics, Northwood University, and a scholar with the Mackinac Center for Public Policy.