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The Right to Strike

photograph of teacher's strike signs

2023 has already been an eventful year for strikes and labor.

On January 10th the United States Supreme Court heard Glacier Northwest v. International Brotherhood of Teamsters. The court is now deliberating whether to strip certain legal protections from striking workers. On January 19th France erupted in strikes and demonstrations over plans to raise the retirement age. On January 30th the U.K. House of Commons voted in favor of a controversial anti-strike bill. It now moves to the upper chamber of parliament for further deliberation. On February 5th an agreement was reached in Woburn, Massachusetts after teachers went on strike in violation of a state law that prohibits public employees from striking. On February 8th Temple University administration informed striking graduate workers it would be cutting their tuition benefits. The administration had already begun to cut their health insurance.

This raft of labor-related actions foregrounds a fundamental question: Should there be a right to strike?

Broadly speaking, a strike is a deliberate work stoppage in pursuit of some aim or goal. Strikes are often the last tactic employed by unions and workers, and occur after other pathways have failed, after negotiations have broken down, or, in the most serious cases, because of intolerable or inhumane labor conditions. Going on strike is mentally and physically exhausting, and workers face pay loss and potential retaliation. Strikes can involve violation of contracts, public inconvenience, and the occupation of employer property. Despite this, the history of labor organizing testifies to the significance of striking as a tactic for improving working conditions and securing workers’ rights. In short, strikes are worth careful ethical consideration.

Currently, the National Labor Relations Act of 1935 grants U.S. private sector workers the legal right to strike, although there is a thicket of riders, limitations, and provisos surrounding this core legal right. The right to strike in the United States can also be signed away in collective bargaining agreements (contracts between unions and employers) through no-strike clauses. The situation becomes yet more complex at the state level as, in many states, public employees such as teachers cannot legally strike at all.

But my aim here is not to debate whether specific strikes are justifiable (some surely are and some are not). Rather, the query is whether it should be, at a minimum, legal for most workers to go on strike in most situations. (There is considerable room for nuance regarding what a right to strike should look like and what kind of regulation should accompany it.)

Courts in democratic countries have long held that workers should enjoy freedom of association and accordingly a right to form organizations (such as unions) – they should possess the liberty to engage in activities to change and improve their workplace. This alone, however, does not obviously lead to a right to strike. For unions could be permitted and yet some range of potential activities, such as strikes, prohibited. If anything, strikes – causing intentional (if perhaps justified) economic harms to employers and often community inconvenience – appear notably distinct from actions such as petitions and demonstrations.

The ability to strike shares a complex relationship with bargaining and negotiations. At first glance, a right to strike seems out of step with the freedom of employers and employees to make agreements as they see fit. If workers want to be able to strike, then they can (presumably) elect to work for employers that allow strikes under certain conditions. The implicit argument is that the state should not be interfering in an agreement freely made between an employee and their employer, and therefore the state should not grant a right to strike over and above what is explicitly agreed to in a contract.

The counterargument is that a right to strike is an important pre-condition to a fair contract. Employers usually have significantly more material and economic power than their employees, as well as easier access to expert advice and legal counsel. Consequently, negotiations between workers and their employers occur from a position of inequality. This has been explicitly acknowledged in U.S. Supreme Court decisions such as National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937). Countering this structural imbalance is a major reason workers join together into unions and engage in collective bargaining (see my previous article on Unions and Worker Agency)

From this perspective, it is only on the backdrop of robust workers’ rights, including the right to strike, that legitimate negotiations between employees and their employers can occur at all.

The philosopher David Borman has expanded this line of thinking, arguing that the right to strike derives from a more fundamental right for self-determination. He holds that “by striking, workers declare their right to self-determination within economic life, the right to cooperatively determine the rules and conditions of labor which affect them in essential ways, materially in psychologically.”

An alternative approach is to look at the impacts of striking and decide if there is a public interest in enshrining a right to strike. Not every strike is won, but strikes can assuredly help striking workers secure better pay and conditions. But what about the broader public? Anti-strike legislation and policy often argue the public harms of strikes justify restricting or limiting the right to strike. For example, new proposed legislation in the U.K. which would enforce minimum service levels is supposed to “ensure the safety of the public and their access to public services.”

Undoubtedly, strikes can be inconvenient. Strikes are also, perhaps unsurprisingly, associated with short-term harm. Transportation strikes increase car accidents as more people drive and patients admitted during nursing strikes have worse medical outcomes.

What this does not tell us is whether there is a longer-term salutary effect. The very same labor conditions that drive nurses to strike, such as understaffing, can have documented negative effects on patient outcomes. Striking workers — such as the 7000 New York City nurses who went on strike in early January — often stress the ability to do their job effectively as a motivating factor.

Granting that working conditions matter to job performance, and strikes can improve working conditions, a right to strike may be, on balance, worth it for the broader public.

There is also a problematic underlying assumption here, namely, that hospital administrators care about patient outcomes, but nurses don’t; that Tories in the U.K. parliament care about public transit, but transportation workers don’t. This assumption fails to take employees seriously as people who can take pride in their work.

Unfortunately, there is little long-term research on the broader societal impacts of strike policy. Nonetheless, the historical impact of organized labor including diminished economic inequality, the 8-hour workday, and workplace safety legislation, creates at least a suggestive case that a legal framework that supports labor organizing, presumably including the right to strike, facilitates the public good.

The effects of strikes and strike regulation deserve thorough empirical analysis, but the initial case for a right to strike on public policy grounds is compelling.

One last consideration. It is often said that freedom of speech does not mean freedom from consequences (this statement has been critically analyzed by The Prindle Post). By this same token, there could be a legal right to strike, but no protections for striking workers. So striking workers would not be jailed or fined by the state, but they could be fired, replaced, sued, and otherwise interfered with. The problem with this stance is it makes striking enormously burdensome and risky for workers, and many of the arguments for a right to strike depend on it’s occurrence being a live possibility. If there is to be a right to strike, it must be supported by enough legal protections such that the right can be meaningfully exercised.

Unions and Worker Agency

photograph of workers standing together, arms crossed

The past few years have seen a resurgence of organized labor in the United States, with especially intense activity in just the past few months. This includes high profile union drives at Starbucks, Amazon, the media conglomerate Condé Nast, and even MIT.

Parallel to this resurgence is the so-called “Great Resignation.” As the frenetic early days of the pandemic receded into the distance, workers began quitting at elevated rates. According to the Pew Research Center, the three main reasons for quitting were low pay, a lack of opportunity for advancement, and feeling disrespected. Former U.S. Secretary of Labor Robert Reich even analogized it to a general strike, in which workers across multiple industries stop work simultaneously.

Undoubtedly, the core cause of both the Great Resignation and growing organized labor are the same – dissatisfaction with working conditions – but they are also importantly different. The aim of quitting is to leave the workplace, the aim of unions and strikes are to change it. They do this by trying to shift the balance of power in the workplace and give more voice and agency to workers.

Workplaces are often highly hierarchical with orders and direction coming down from the top, controlling everything from mouse clicks to uniforms. This has even led some philosophers, like the noted political philosopher Elizabeth Anderson, to refer to workplaces as dictatorships. She contends that the workplace is a blind spot in the American love for democracy, with the American public confusing free markets with free workers, despite the often autocratic nature of the workplace. Managers may hold almost all the power in the workplace, even in cases where the actual working conditions themselves are good.

Advocates of greater workplace democracy emphasize “non-domination,” or that at the very least workers should be free from arbitrary exercises of managerial power in the workplace. While legal workplace regulations provide some checks on managerial power, the fact remains that not everything can or should be governmentally regulated. Here, worker organizations like unions can step in. This is especially important in cases where, for whatever reasons, workers cannot easily quit.

Conversations about unionization generally focus on wages and benefits. Unions themselves refer to the advantage of unionization as the “union difference,” and emphasize the increases in pay, healthcare, sick leave, and other benefits compared to non-unionized workplaces. But what causes this difference? Through allowing workers to bargain a contract with management, unions enable workers to be part of a typically management-side discussion about workplace priorities. Employer representatives and union representatives must sit at the same table and come to some kind of agreement about wages, benefits, and working conditions. That is, for good or for ill, unions at least partially democratize the workplace – although it is far from full workplace democracy, in which workers would democratically exercise managerial control.

Few would hold that, all things being equal, workers should not have more agency in the workplace. More likely, their concern is either that worker collectives like unions come at the cost of broader economic interests, or that unions specifically do not secure worker agency but in fact saddle workers with even more restrictions.

The overall economic effect of unions is contentious, but there is little evidence that they hobble otherwise productive industries. A 2019 survey of hundreds of studies on unionization found that while unionization did lower company profits, it did not negatively impact company productivity and decreased overall societal inequality.

More generally, two assumptions must be avoided. The first is that the interests of the workers are necessarily separate from the interests of the company. No doubt company interests do sometimes diverge from union interests, but at a minimum unionized workers still need the company to stay in business. This argument does not apply to public sector unions (government workers), but even there, unions can arguably lead to more invested workers and stronger recruitment.

The second assumption to avoid is that management interests are necessarily company interests. Just as workers may sometimes pursue their personal interests over broader company interest, so too can management. This concern is especially acute when investment groups, like hedge funds, buy a company. Their incentive is to turn a profit on their investment, whether that is best achieved by the long-term health of the company or by selling it for parts. Stock options were historically proposed as a strategy to tie the personal compensation of management to the broader performance of a company. This strategy is limited however, as what it does more precisely is tie management compensation to the value of stock, which can be manipulated in various ways, such as stock buybacks.

Beyond these economic considerations, a worker may also question whether their individual agency in the workplace is best represented by a union. Every organization is going to bring some strictures with it, and this can include union regulations and red tape. The core argument on behalf of unions as a tool for workplace agency is that due to asymmetries of power in the workplace, the best way for workers to have agency is collective agency. This is especially effective for goals that are shared widely among workers, such as better pay. Hypothetically, something like a fully democratic workplace (or having each individual worker well positioned to be part of company decision making) would be better for worker agency than unions. The question of whether these alternatives would work is more practical than ethical.

There can be other tensions between individual and collective agency. In America specifically, unions have been viewed as highly optional. The most potent union relationship is a “closed shop,” in which a union and company agree to only hire union workers. Slightly less restrictive is a “union shop,” under which all new workers must join the union. Both are illegal in the United States under the 1947 Taft Hartley Act, which restricted the power of unions in several ways. State-level  “right to work” laws go even further, forbidding unions from negotiating contracts that automatically deduct union representation fees from employees. The argument is one of personal freedom – that if someone is not in the union they should not have to pay for it. The challenge is that the union still has to represent this individual, who benefits from the union they are not paying for. This invites broader questions about the value of individual freedoms, and how they must be calibrated with respect to the collective good.


The author is a member of Indiana Graduate Workers Coalition – United Electrical Workers, which is currently involved in a labor dispute at Indiana University Bloomington.

Freedom of Association and Right-to-Work Laws

This post originally appeared on October 20, 2015.

In March 2015, Wisconsin became the 25th state to adopt “right-to-work” laws. Kentucky, Illinois, Missouri, New Mexico, Montana, and West Virginia are all considering such laws. Right-to-work laws do not prohibit unions. They prohibit agreements between unions and employers that require workers to be members of unions or to pay agency fees for the benefits they receive from union representation.

Continue reading “Freedom of Association and Right-to-Work Laws”