1. The Right to Engage in Concerted Activity for Mutual Aid or Protection

It is strange, in our individualistic society, to encounter a right to act together with others for the benefit of all. Section 7 of the NLRA, 29 U.S.C. §157, nevertheless proclaims a right "to engage in . . . concerted activities for the purpose of ... mutual aid or protection."

These words reflect decades of legally unprotected collective struggle by working people. In the nineteenth century, a worker had the right to quit work individually but if he or she joined with other workers in a strike or other concerted action, the law viewed the conduct as an illegal "conspiracy." Section 7 turns that assumption upside down. Today, the most important thing a working person can do to try to give shop-floor action some legal protection is to take that action in concert with (together with) other workers.

The heart of the labor movement--the reason that, with all its failings, the labor movement still in some sense represents a new society within the shell of the old--is the experience, forced on working people by necessity, that "an injury to one is an injury to all." Trade union officers sign their letters, "fraternally yours" and "in solidarity." That they do so is a symbol, just as Section 7 is a symbol, of the practice of solidarity that underlies these outward forms.

The right to act in concert is the right on which all other workers' rights depend. It is the enforcer, the working person's First Amendment. The right to act in concert may express itself in union organization, but it may also take the form of shop-floor struggle in the absence of a union, or alongside a union.

As one might expect, the NLRB and the courts have done their best to limit the right to engage in concerted activity. They have done so in three ways. First, the NLRB and the Courts give more protection to unionized workers than to workers without a union, and in workplaces where a union has been recognized the NLRB and the courts protect only concerted activity approved by the union. Second, the NLRB and the courts have promoted the notion that the right to act in concert is a "collective" right, belonging to every one together but not to any one individually. Third, the NLRB and true courts have restricted the objectives on behalf of which workers may legally act in concert to narrowly self-interested, rather than class-wide, ends. Let's take a look at each of these legal doctrines.

The NLRB and the courts give more protection to unionized workers than to workers without a union, and in workplaces where a union has been recognized the NLRB and the courts protect only concerted activity approved by the union. Recall the discussion of the Weingarten right to the presence of a fellow worker in any interview with management that may reasonably be expected to lead to discipline. "The law" says that unionized workers have this right but non-unionized workers do not. Why is this? I think it is because the well-to-do lawyers and judges who make "the law" feel more comfortable with workers when they are members of, and presumably controlled by, unions, than when the workers act spontaneously in a non-unionized shop.

For the same reason, when a union exists the NLRB and the courts try to force workers to act within the confines of the grievance-arbitration process. In Boys Markets v. Retail Clerks Local 770, 398 US 235 (1970), the Supreme Court considered a strike about a problem that could have been submitted to the grievance-arbitration procedure. Even though the Norris-LaGuardia Act flatly prohibits Federal courts from issuing injunctions in labor disputes, the Supreme Court held that an injunction may issue to restrain strike action about a problem subject to a mandatory grievance-arbitration procedure.

A similar bias against spontaneous concerted activity is evident in another Supreme Court decision, Gateway Coal Co. v. UMW, 414 US 368 (1974). Certain supervisors for a mining company were found to have falsified ventilation inspections required by the government. The supervisors were suspended, then rehired. The miners walked out to protest the supervisors' return. The case for the miners was the more compelling because there was no no-strike clause in the contract. However, there was a clause in which the union promised to submit problems to binding arbitration through the grievance procedure. The court found that the arbitration clause created an implied no-strike clause, and that the walkout was legally unprotected.

A final example is a case that involved the Emporium Capwell department store in San Francisco. Black workers employed by Emporium Capwell felt they were being discriminated against. They approached the union, which offered to process their grievances individually. The black workers declined: they considered their problem to be a group grievance, and wanted it handled that way. Finally, two of the black workers handed out leaflets to customers that called for a consumer boycott. The leafleting took place during the leafleters' "own time," and on a public sidewalk. There was no violence or obstruction of entrances. Nevertheless, when the store fired the two workers the Supreme Court refused to order their reinstatement. The Court said in Emporium Capwell Co. v. Western Addition Community Organization, 420 US 50 (1975), that the two leafleters had lost their Section 7 protection because they had tried to displace the union.

The NLRB and the courts have promoted the notion that the right to act in concert is a "collective" right, belonging to every one together but not to any one individually. The right to act in concert made its way into the law in the Norris-LaGuardia Act of 1932. Section 4 of that statute (as we've seen) forbade Federal courts to enjoin striking, picketing, and the like, whether done "singly or in concert." Clearly the Norris-LaGuardia Act sought to protect picketing, for instance, whether one person picketed or many. The NLRA of 1935 was intended to protect the very same acts from interference by the employer. But because Section 7 of the NLRA referred to "concerted activities" rather than to acts done "singly or in concert," the NLRB and the courts maintain that Section 7 does not protect individual workplace resistance.

More precisely, individual workplace resistance is legally protected by Section 7 only when, in the wisdom of some detached decisonmaker after the fact, it appears to be linked with collective action. A single worker's statement, "this is a hell of a place to work," appeared to the NLRB to be an "indispensable preliminary step" to group action, but was found by a reviewing court to be one individual's "mere griping," hence unprotected.

Similarly, in a 1993 case, a sewing-machine operator who referred to an anti-union leaflet found on her machine as "a bunch of god damn lies" and to its distributors as ."fuckin' whores" was held by a reviewing court to have been properly discharged because her activity was not "engaged in with, or on behalf of, or on the authority of other employees."

The NLRB and the courts have restricted the objectives on behalf of which workers may legally act in concert to narrowly self interested, rather than class-wide, ends. When the NLRA was young it was commonly interpreted to protect sympathy strikes and boycotts. Judge Learned Hand remarked in one such case:

When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a "concerted activity" for "mutual aid or protection," although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is "mutual aid" in the most literal sense, as nobody doubts. So too of those engaging in a "sympathetic strike," or secondary boycott; the immediate quarrel does not itself concern them, but by expanding the number of those who will make the enemy of one the enemy of all, the power of each is vastly increased.

Then the political climate changed. The Taft-Hartley Act outlawed secondary boycotts. Court decisions like Boys Markets, Gateway Coal, and Emporium Capwell, often written by supposedly liberal judges like Brennan (Boys Markets) and Marshall (Emporium Capwell), further poisoned the atmosphere. Old prejudices of the courts were resurrected, according to which the law should protect workers' action only when the action is in pursuit of immediate monetary gain. A good discussion of these underlying assumptions is Values and Assumptions in American Labor Law, by Professor James Atleson of the law school of the State University of New York at Buffalo. (Get the paperback edition.)

In general, the following guidelines will give you the best chance to have your protest considered "concerted activity" protected by Section 7 of the NLRA:

• 1. Act together;
• 2. If you have to act alone, tell management that you are speaking for other employees in your plant or department, as well as for yourself,
• 3. Even if your action concerns workers elsewhere, or a political objective, explain in your literature how the action will affect the terms and conditions of employment of yourself and your fellowworkers.

2. The Right to Strike

The people I work with in Youngstown--the Workers' Solidarity Club, the retiree organization Solidarity USA, and the Ed Mann Labor School--agree with the following words of the late Ed Mann in his We Are The Union (distributed free at all sessions of the school):

I think we've got too much contract. You hate to be the guy who talks about the good old days, but I think the IWW had a darn good idea when they said, "Well, we'll settle these things as they arise."

I believe in direct action. Once a problem is put on paper and gets into the grievance procedure, you might as well kiss that paper goodbye. When the corporations started recognizing unions, they saw this. They coopted the unions with the grievance procedure and the dues check-off. They quit dealing with the rank and file and started dealing with the people who wanted to be bosses like them, the union bosses.

On the other hand, there are people who say: "The day of the strike is over." Sometimes these people talk about alternative kinds of direct action, such as inside strategies and boycotts. Sometimes they argue for labor-management "jointness."

The perception that the strike is out of date is based partly on the fact (discussed earlier) that almost all collective bargaining agreements in the United States give up, or "waive," the right to strike during the duration of the contract. The very first CIO collective bargaining agreements in March 1937, between the UAW and General Motors, and between the Steel Workers Organizing Committee and U.S. Steel, were documents of only a few pages but each contained a no-strike clause. In my opinion, John L. Lewis and other CIO leaders were anxious to show management that they were "responsible" trade unionists, who could police their rank and file. Sign a contract with us, the CIO leaders sought to signal, and you won't have to worry about wildcat strikes. Nothing in the NLRA or anywhere else in the law required them to give up the right to strike. Even today, despite certain procedural requirements for cooling-off periods and (in the health industry) notice before striking, it is still the case that workers in the private sector have the right to strike unless they or their unions voluntarily give it up.

A second reason that even legal strikes at the expiration of the contract are thought by some to be obsolete is management's effective use of strikebreakers (scabs) in the 1980s and 1990s. People forget that management has had the right since 1938 to hire scabs to break a strike. In that year the Supreme Court decided NLRB v. Mackay Radio & Telegraph Co., 304 US 333 (1938). There the court said about the right to hire scabs:

[It was not] an unfair labor practice to replace the striking employees with others in an effort to carry on business. Although Section 13 provides, "Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike," it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them.

What changed after the PATCO strike in 1981 was only that management decided to use this right. While I agree with Ed Mann that strike action is a better approach than filing grievances (or law suits), it is not always appropriate. For one thing, if you are a retiree or unemployed or disabled, there is no way you can yourself stop the production process. For another thing, the law heavily penalizes strike action, and especially those kinds of strike that promote solidarity. Finally, in some situations you may get more accomplished by combining strike action with other sorts of activity, or at least, by choosing a form of strike unlikely immediately to get you fired or land you in the slammer.

Here are some things to consider in making your own decisions about the use of the strike weapon: the difference between a strike and inside strategies, such as working to rule, sitting down, and sitting in; the difference between a strike and a lockout; the difference between an economic strike and an unfair labor practice strike; and the difference between a strike at a single workplace and a sympathy, or general, strike.

The difference between a strike and inside strategies, such as working to rule, sitting down, and sitting in. The most obvious difference between a strike and an inside strategy (to be discussed below) is that during an inside strategy workers continue to be paid. For this reason alone, inside strategies will be attractive to non-unionized workers and to members of small, independent unions that do not have large strike funds.

The difference between a strike and a lockout. Once the employer and union have reached a bargaining impasse, the difference between a strike and a lockout depends basically on who makes the next move. If the union unmistakably communicates a willingness to go on working under the old contract, at least for the time being, and the employer prevents union members from reporting to work, you have a lockout. The most important reason to act in such a way that you are locked out rather than on strike is that you will then have a much better chance to get unemployment compensation.

The difference between an economic strike and an unfair labor practice strike. The ordinary strike that begins after reaching a bargaining impasse is viewed by the NLRB as an economic strike. If your strike is an economic strike, your employer can use the right provided by Mackay to hire permanent strike replacements. In contrast, an unfair labor practice strike is a strike caused by an employer's unfair labor practice, such as discharging a worker for trying to organize a union. According to labor law textbooks, if the NLRB finds that your strike is an unfair labor practice strike you will have a right to be reinstated when the strike ends.

Let me offer a word of caution based on painful experience. I represented a group of non-unionized workers who walked out when the employer fired two men for trying to organize a union.

The NLRB found that it was an unfair labor practice strike. But several strikers were found by the NLRB to be ineligible for reinstatement because of a five-minute incident on the third day of a three-month strike when some workers joined arms to prevent scabs from going through the gate. And workers were recalled one at a time and required to submit to interrogation as to what fellow workers had done on the picket line. If they refused to be interrogated, or asked for the presence of a lawyer or fellow worker, they were fired; and the NLRB pronounced this to be lawful.

The difference between a strike at a single workplace and a sympathy, or general, strike.

A sympathy strike is a strike in which the striking worker acts in support of (in solidarity with) a worker in another workplace, rather than on behalf of his or her own, short-run interests. The broadest form of sympathy strike is the "general strike," in which the workers of all plants in a city, or in a country, or in a particular industry all over the world, strike at the same time on behalf of general objectives.

The CIO was built by general strikes in which all the workers of a community went out in support of other workers in the same town. This happened in Toledo, Minneapolis, and San Francisco in 1934; it happened in places like Akron and Barberton, Ohio throughout the 1930s.

Workers continue to recognize the idea of the sympathy strike or general strike. In 1947, many local unions tried to promote a general strike in opposition to passage of the Taft-Hartley Act. In the early 1970s, delegates at a Labor for Peace conference in St. Louis passed a resolution calling for a general strike against the Vietnam War. (The idea was that in each locality or workplace, workers should do as much as it made sense to do in that place, even if it meant only an extended lunch period.) And any worker you ask will tell you that the AFL-CIO blew it when it failed to call a nationwide general strike to stop President Reagan from using scabs to break the PATCO strike. Many workers confront the question of the sympathy strike practically when they are told to deliver or pick up product, and upon arriving at the location, find a picket line. Do you have a right not to cross a picket line at somebody else's workplace`? The labor law answer is that you have the same rights that the picketers have. This is singularly unhelpful information, because the picketers themselves probably don't know whether what they are doing will ultimately be viewed by the NLRB and the courts as an economic strike, an unfair labor strike, or whatever. The practical way to protect yourself if you want to be able to honor picket lines is: write the right to honor picket lines into your collective bargaining agreement.

One last thing. What do you do if you want to get the no-strike clause out of your collective bargaining agreement? The no-strike clause is a "mandatory subject" of bargaining. This means that if a bargaining impasse were reached over taking a no-strike clause out of the contract, the union could strike for the right to strike without breaking the law. But, absent bargaining in bad faith or other unfair labor practices by the employer, it would still be an economic strike and the strikers could be lawfully replaced by scabs.

3. Inside Strategies

A little history. Inside strategies have been around for a long time. For instance, electrical workers at a GE plant in Schenectady employing 17,000 workers during the period 1905-1910 used to

sit down until grievances in a department got adjusted. This tactic was devised to end the runaround that management and business agents had been giving the men on their grievances.. . . On hourly rates they drew their pay while staging sitdowns lasting from a few minutes in some cases to most of a shift in others. Fred Thompson, The I.W.W.: Its First Fifty Years (1905-1955), pages 23-24.

The IWW (Industrial Workers of the World) also pioneered such inside tactics as "working to rule": following to the letter every instruction contained in the boss' handbook or the foreman's order, with the inevitable result of slowing down production.

Workers involved in the industrial union drives of the 1930s reinvented inside strategies. In Akron, Ohio, rubber workers began to use sitdowns in November 1935. At first the sitdowns were defensive: to protest wage cuts, to challenge the firing of militant union committeemen, or to overturn layoffs. But in February 1936 a sitdown of Goodyear tire builders to protest 70 new layoffs erupted into an outside strike that brought unionism to the rubber industry.

The most celebrated sitdown in American labor history took place at the General Motors plants in Flint, Michigan in January-February 1937. As in Akron, smaller encounters set the stage. In November 1936 supervision took one worker off the job of welding angle irons or "bows" across the roof of the car. The welders stopped working. They finally agreed to go back to work for the rest of the shift, but when they reported the next day they found that three of their number had been fired. The whole "body-in-white" (welding and soldering) department of 700 men then stopped working. They refused to resume production until the three dischargees were brought back into the plant and until management agreed to pay them for the time they sat down. After this, according to someone in Flint at the time, GM "began to bargain regularly with the union committee. Numerous grievances were corrected, wage raises and speed reductions won. At the same time the stewards system was being perfected inside the plant and union buttons began to sprout like dandelions everywhere." Henry Kraus, The Many and the Few: A Chronicle of the Dynamic Auto Workers, page 55.

At places like Inland Steel in East Chicago, Indiana, workers did their thing through an extensive steward system backed up by the threat of direct action (rather than through conventional collective bargaining) into the 1940s. My wife and I interviewed veterans of the struggle. Nick Migas recalled that in those days there were regular departmental meetings and departmental newsletters reporting on grievances. Nick recalled:

There was one time when they wouldn't settle a grievance for the charging car operators. They had increased the tonnage on the furnaces without increasing the rate. We discussed this question with the superintendent: nothing doing. So that night it started to slow down, and by the next morning there were two furnaces where they had to shut the heat off. They settled the grievance in a hurry.

John Sargent, president of the Inland Steel local, generalizes:

Without a contract we secured for ourselves agreements on working conditions and wages that we do not have today, and that were better by far than what we do have today in the mill. For example as a result of the enthusiasm of the people in the mill you had a series of strikes, wildcats, shut-downs, slow-downs, anything working people could think of to secure for themselves what they decided they had to have. If their wages were low there was no contract to prohibit them from striking, and they struck for better wages. If their conditions were bad, if they didn't like what was going on, if they were being abused, the people in the mills themselves--without a contract or any agreement with the company involved--would shut down a department or even a group of departments to secure for themselves the things they found necessary. Alice and Staughton Lynd, ed., Rank and File: Personal Histories of Working-Class Organizers, pages 99-100, 160.

But is it legal? As in the case of strikes, when inside strategies from the past are described we are often told: "Yes, but those were the old days. The law won't let you do that now."

Baloney. The law didn't help people sit down, or slow down,in the early 1900s or the 1930s. The law makes it as hard as possible for working people to do these things because the bosses know that inside strategies have power. You have to work around the law now, just as you had to work around the law then. I am reminded of a big strike at a hospital near Youngstown in 1982. The judge issued an injunction forbidding rallies near the hospital gate. But so many people showed up at the gate every Wednesday afternoon that, after a few weeks, the police were stopping traffic to help us hold orderly rallies!

Here are some things about the law to keep in mind as you develop inside strategies:

1. Contract clauses that prohibit strikes for the duration of the contract (no-strike clauses) typically prohibit any interruption of work, as well. If you can't entirely get rid of the no-strike clause in your contract, at least try to prune its language so as not to prohibit slowdowns and other in-plant tactics.

2. After an existing contract has expired and a bargaining impasse has been reached, you may have more freedom to take direct action. This is the strategy so effectively used by Jerry Tucker when he was a UAW staff person in the southwest. After a bargaining impasse had been reached at several plants, Jerry encouraged the workers to stay in the plant rather than striking, but to do things that might have been prohibited when the contract was in effect. The dues checkoff clause was no longer in effect so dues were collected by hand. The language prohibiting work disruption was no longer in effect so rank and filers could work to rule, or sing "Solidarity Forever" in the plant cafeteria, with much less reason to fear discharge. For similar reasons, the law may give somewhat more protection to nonunionized workers who engage in slowdowns or similar activity (such as every one taking an extended lunch hour to talk with the boss) than it gives to unionized workers who have negotiated a no-strike clause.

3. Don't expect help from the NLRB. In his previously-mentioned book on values and assumptions in United States labor law, Jim Atleson decribes the consistent hostility of the NLRB to plant occupations (Fansteel), slowdowns (Elk Lumber), and other forms of inside strategy. He asks why this should be so. "Why not, for instance, permit a less economically harmful action like a slowdown in situations where a strike would be permissible?" One answer is that the law disfavors inside strategies precisely because they are so effective. Thus the leading labor law professor in the period after World War II, Archibald Cox, has written that slowdowns

cost employees nothing and, if they were protected activities, management would be helpless to resist. Hence such weapons are too effective to permit them to be part of the employee's arsenal.

Also, slowdowns are perceived as a direct challenge to managerial control over the pace of work, a tactic that (in the words of the Supreme Court) leaves management no choice "except to submit to its undeclared demands."

4. Highlight the health and safety aspect of your inside activity. Often such a connection doesn't have to be invented: health and safety is the reason for the activity. Sometimes you may need to think a minute to see the health and safety connection. For example, workers who are required to work overtime are exposed to an increased safety hazard, because there are more accidents when people are tired from working a lot of overtime. In the same way, work intensification in any form (such as doing the same task with fewer employees) creates a safety hazard. One reason miners have so strong a tradition of direct action is that mining is such dangerous work, and miners recognize that they have to protect themselves. Justice Douglas recognized the connection between danger and direct action in his dissent in Gateway Coal. The words of Section 502 of the NLRA ("nor shall ... quitting of labor ... in good faith because of abnormally dangerous conditions . . . be deemed a strike"), he said,

recognize in the law what is in any case an unavoidable principle of human behavior--self-preservation. . . . "Men are not wont to submit matters of life or death to arbitration."

5. Trust your own common sense, and do not let lawyers or judges talk you out of what you know you need to do. The Supreme Court has invented a so-called "quid pro quo" (Latin for "this for that") doctrine, according to which workers voluntarily gave up the right to direct action in order to have a grievance procedure ending in binding arbitration. As I said earlier about this "waiver" theory, NO ONE EVER ASKED WORKERS IF THEY WANTED TO TRADE DIRECT ACTION FOR BINDING ARBITRATION. I suspect they didn't, and don't. I suspect that if offered a choice between (1) a package including both the conventional no-strike, no-slowdown clause and the conventional grievance-arbitration procedure, and (2) a package containing neither the no-strike clause nor the grievance-arbitration procedure, most workers would choose the latter. The bosses are afraid to find out.

Here is a final word about the experience of working people in Youngstown. Around Thanksgiving 1979 (they always do it just before Christmas) U.S. Steel announced that it was closing its Youngstown mills. On January 28, 1980, hundreds of angry steelworkers and supporters occupied the company administration building, breaking down the front door and setting up occupation headquarters in an executive game room. The local union president, Bob Vasquez, decided to leave after six hours when the company promised to talk with him. I asked him afterwards about what he felt he had learned.

It is the considered opinion of the steelworkers most active in the Youngstown struggle that what little they accomplished was by direct action: by demonstrations, confrontations, and sit-ins. In particular, they feel that their single biggest mistake was calling off the occupation of the U.S. Steel administration building on January 28,1980.

Bob Vasquez, the man who called off the occupation, agrees. If he had it to do over again, feeling as he now does that fairness doesn't matter to a company like U.S. Steel, he would keep the occupation going forever.. . .

I asked Bob Vasquez about the responsibility I knew Vasquez felt about the likelihood that if any one were arrested he would also be fired, and thereby lose unemployment compensation, Supplemental Unemployment Benefits (SUB), and the possibility of transfer to another U.S. Steel plant. If Bob were to plan another sit-in would he try to have only young single men with relatively little to lose exposed to arrest and discharge?

No, Bob Vasquez said at once. He had thought too much in that way the first time. Another time he would ask all 3,500 workers and their families to join in, and see if the company was prepared to fire them all. Once people began comparing who had most to lose, Bob said, with conviction, you were beaten. Instead, there has to be a spirit of one for all, and all for one. Staughton Lynd, The Fight Against Shutdowns: Youngstown's Steel Mill Closings, 1977-1980, pages 225-226.

4. The Right to Boycott

In the early years of this century Samuel Gompers (the president of the AFL) and other individual trade unionists were saddled with large fines, upheld by the Supreme Court of the United States, for promoting boycotts. Individual unionists have not been targeted recently. But the NLRA as amended by Section 8(b)(4) of the Taft-Hartley Act makes a secondary boycott--a boycott of a company other than the company with whom there is a labor dispute, such as a supplier or retailer for the struck company--an unfair labor practice by the union. Therefore unions will refuse to engage in secondary boycotts, for fear of being heavily fined.

It was pointed out earlier that a boycott of the products of your own employer is a primary boycott, perfectly legal and protected by Section 7 of the NLRA, provided (1) that you and your fellow workers are engaged in a labor dispute with your employer and make this known to the public, and (2) that in asking the public not to purchase your employer's product you do not disparage (criticize, run down) the product itself.

Primary boycott activity may be carried on at the business location of another employer if it is unmistakably directed at the products of the primary employer, rather than at curtailing the business of the secondary employer. In NLRB v. Fruit & Vegetable Packers Local 760 (a case you will always see referred to as Tree Fruits), 377 US 58 (1964), the union had a primary dispute with fruit packers who sold apples to Safeway Stores. The union picketed some of these stores asking customers not to buy the apples. The court distinguished "peaceful consumer picketing to shut off all trade with a secondary employer" (a secondary boycott) from picketing that "only persuades his customers not to buy the struck product" (a primary boycott), and held that the latter was protected by Section 7. Be careful. If most of the secondary employer's business consists in retailing the products of the struck employer, it may be held that picketing the secondary employer will have a "substantial impact" no matter how the signs are worded, and cannot be allowed.

Sometimes a primary boycott is not enough. In 1992-1993 a small Machinists local in Youngstown went on strike. The strikers called for a boycott of their employer, a Buick dealership. There was a Toyota dealership next door, managed by another member of the same family, which shared with the Buick dealership a driveway between the two properties frequently used by both companies. Could the Buick strikers legally call for a boycott of the Toyota dealership as well? Or would a Toyota boycott be a secondary boycott?

With an eye to the particular judge we were dealing with, we decided not to take a chance. Automobile workers who made GM products at a nearby factory and several other unionists, acting as individual members of a community coalition, called a press conference on the court house steps and asked the public not to buy Toyotas.

We were prepared to defend this community-initiated boycott because of a Supreme Court decision called NAACP v. Claiborne Hardware Co., 458 US 886 (1982). The case decided that the First Amendment protects consumer boycotts. As with primary boycotts there are certain provisions, or conditions, that must be satisfied in order to be reasonably sure of legal protection. The first is to avoid violence. The second is to make sure that the objectives of the boycott are broadly social and political, not narrowly economic. To satisfy the second provision in our Youngstown struggle, we stressed the fact that the employer hired scabs on the first day of the strike.

Handbilling and Honk-Ins

. Be aware in conducting boycott activities that the NLRB and the courts give a lot more protection to handbilling than to picketing. Why this is so is somewhat mysterious. It seems that a picket sign may be regarded as a potential weapon, whereas passing out a leaflet is viewed as "pure" First Amendment activity. Another view sometimes voiced by the courts is that carrying a picket sign is a "signal" that calls on other workers to strike, no matter what the sign says. (Let's hope this is still true.)

Generally, truthful handbills and similar forms of publicity may be employed to inform consumers that products produced by a primary employer with whom there is a labor dispute are being distributed by a secondary employer. In Edward J. DeBartolo Corp, v. Building & Constr. Trades Council, 485 US 568 (1988), building trades unions distributed handbills at the entrances to a shopping mall owned and operated by DeBartolo (who, by the way, comes from Youngstown and [used to own] the San Francisco Forty Niners). The unions objected to the construction of a new store at the mall by High, a contractor that allegedly provided substandard wages and benefits. The union wanted to compel the owner of the new store, Wilson, to use contractors who would provide standard wages and benefits, and sought by the consumer boycott to influence DeBartolo, and DeBartolo's many mall tenants other than Wilson, to influence Wilson. The handbills urged members of the public not to shop or trade with any of the businesses occupying space within the mall.

Under Tree Fruits, if the handbillers had been carrying picket signs they would have been engaged in an illegal secondary boycott. Since they were only handbilling, however, the Supreme Court found that what they were doing was not prohibited and was protected by Section 7.

The loss of customers because they read a handbill urging them not to patronize a business, and not because they are intimidated by a line of picketers, is the result of mere persuasion, and the neutral who reacts is doing no more than what its customers honestly want it to do.

When we encounter a distinction like that which the courts make between picketing and handbilling, there is an instinctive reaction to draw a line in the sand and defend what seems a perfectly reasonable right: in this case, the right to picket. On the other hand, much of what the law can offer rank and filers is the opportunity to take advantage of distinctions like that between picketing and handbilling, and use them for our own purposes.

A similar question arose in the Buick strike mentioned previously. The judge issued an over-broad injunction that forbade any congregating or loitering within 100 yards of the employer's property. The first reaction of the strikers and their supporters was to organize a march that would defy this prohibition. On reflection, however, we settled for a weekly "honk-a-thon" in which we slowly drove around the Buick property, horns blasting, with signs that told the world what we thought about the hiring of scabs. Because we were obviously not congregating or loitering, but just driving up and down the street like other citizens, the judge had to grit his teeth and recognize the honk-a-thon as protected speech.

In our hands is placed a power . . . The last verse of "Solidarity Forever" begins: "In our hands is placed a power greater than their hoarded gold, Greater than the might of armies magnified a thousand fold."

Boycotts can be extraordinarily effective. An example is the campaign of GM workers and community groups at the Van Nuys plant near Los Angeles. By threatening to boycott GM cars in the company's largest new car market if the plant were closed, Van Nuys activists delayed the plant's closure for a number of years.

As in the Van Nuys case, workers considering the boycott weapon should take a good look at the product made by their employer. End products ready to sell to the consumer are easier to boycott than raw materials or semi-finished goods. An automobile manufacturer is more vulnerable to a boycott than a producer of steel coils. The most dramatic reaction to a boycott threat in my experience happened in a campaign to induce Burger Kings in our area to hire more African-Americans, Hispanics, Arab-Americans, and Asian-Americans. Negotiations dragged along inconclusively until one of our letters indicated that our next step would be a "selective patronage campaign." That brought the employer to the table in a hurry, and a good affirmative action agreement came about a few days later.

5. The Right to Receive Promised Fringe Benefits

When working people retire, they tend to lose touch with one another. It becomes easy to forget that what the retiree receives by way of pension or medical benefits is the result of a common effort, of collective bargaining. Retirees begin to think about "my pension" and "my health insurance." They forget that the right to receive promised fringe benefits is a communal right.

Employers are educating retirees on this subject. As this is being written, company after company is reneging in one way or another on its benefit promises. And the courts are letting them do it, because company lawyers have included in the benefit plans language that permits the employer unilaterally to amend, modify, or terminate a plan at any time.

The most notorious case concerned a man named McGann who worked in a music store. The company's health insurance plan covered AIDS, and paid medical expenses up to a cap of $1 million. When McGann learned that he had the disease, he informed the employer. The employer thereupon amended its insurance plan so that after the effective date of the amendment no more than $5000 could be paid to a victim of AIDS (including McGann). Two Federal courts found that the company's health insurance plan contained language permitting the plan to be amended, and that the reduction in benefits for McGann and other AIDS victims was accordingly lawful. The Supreme Court let these decisions stand.

Retirees have no other choice but to unite and fight. In Youngstown, retirees got together when LTV Steel, the second largest steel company in the United States, filed for bankruptcy protection in July 1986. At the same time that it filed its bankruptcy papers the company cut off payments of retiree medical claims. There was an uproar. Roy St. Clair, a Youngstown-area retiree, decided not to go to the hospital when he experienced a recurrence of heart pains because he did not know how he could pay the hospital bills. He died a few hours later. The wife of another retiree called the radio talk shows and announced a rally in downtown Youngstown. A thousand people attended. Soon after, the organization Solidarity USA (modelled on Polish Solidarity) was born.

Solidarity USA tries to use the power of numbers to make up for what retirees lack in other ways. Retirees cannot strike. At least in the case of steelworkers, retirees are no longer members of the union, do not vote for union officers, and do not have the right to ratify or reject changes in retiree benefits negotiated by the union. Yet Solidarity USA has been able to catch the attention of LTV Steel (headquartered nearby in Cleveland), the union (with its headquarters about the same distance away, in Pittsburgh), and the insurance carriers. What we do is to write to one of these entities and say that we are coming to see them on a certain day. They usually say No, or do not answer. Then we indicate that we are coming anyway, to picket outside their building after fully informing the media. Up to now this has almost always produced a meeting.

For example, in November 1992 LTV Steel retirees got a letter from the company announcing big increases in their major medical premiums. The rate increase was much greater for retirees over age 65. This didn't make sense, because when you are over 65 Medicare covers most expenses other than prescription drugs. Solidarity USA wrote to Steelworkers President Lynn Williams. We said Solidarity USA was bringing buses to Pittsburgh at 10 AM on January 13, 1993, and hoped to be able to speak to somebody. There was no answer until 5 PM on January 12 when a phone call came from Pittsburgh asking how many would be coming, and when would we arrive. We got the meeting. Retirees who could not get into the meeting waited in the lobby. They got to speak to Mr. Williams, who came in the front door and couldn't get to the elevator without first talking to retirees.

Bankruptcy. The most important thing to know about bankruptcy was said by the English writer Charles Dickens in his novel Bleak House, written a century and a half ago. Bankruptcy is good for bankruptcy lawyers and bad for almost everybody else.

Many companies file for bankruptcy protection in order to get out from under promised fringe benefits. LTV Steel did not hide the fact that it went into bankruptcy so as to get the Pension Benefit Guaranty Corporation to take over LTV's pension plans. Other companies will declare bankruptcy and then sell their assets to a company with a new name, leaving the old company with all the fringe benefit liabilities and no money to pay them.

In 1988 Senator Metzenbaum sponsored a statute intended to protect retiree benefits in bankruptcy. The statute added a new section to the bankruptcy code, 11 U.S.C. §1114 (sometimes referred to as "Section 1114" or "the Metzenbaum bill"). We in Youngstown made many trips to Washington in support of this legislation. Section 1114 directs that retiree medical benefits shall be timely paid and not modified unless a Federal bankruptcy court, after a hearing, permits a modification.

Unfortunately many companies have brazenly ignored the requirements of Section 1114. Such companies simply stop paying retiree medical claims on the ground that they have no money. And Reagan-Bush appointees to the courts have let them get away with it.

The basic problem for retirees whose companies have filed for bankruptcy protection is how to be effectively represented. Senator Metzenbaum, under pressure from the UAW and Steelworkers, wrote Section 1114 so as to let the union (not the retirees) decide whether the union will represent retirees in bankruptcy court. If the union decides to be the "authorized representative" of retirees, retirees find themselves at the mercy of lawyers who take their orders from the union, not from the retirees, and often do not even keep retirees informed. Individual retirees have not been permitted to make their views known to the bankruptcy judge through lawyers of their own choosing. At this writing, the only way retirees can try to do something about their representation is to ask the court to appoint a new "authorized representative," such as an elected retiree committee. Bankruptcy courts are likely to say No.

The fringe benefits crisis: cause and solution. The reason for the fringe benefits crisis is that United States corporations made promises about pensions and health insurance at a time when the United States dominated the world market. Workers gave up wage increases in the 1950s and 1960s in exchange for the promise of a secure retirement. But then companies in the United States began to be undersold by European and Japanese firms, even in the United States market. When the time came for the employer to make good on fringe benefit promises there was often not enough cash flow to do so.

In response, companies got "meaner and leaner": they shut down plants, and automated and sped up production, thus reducing the number of people who worked for them. This only made the benefits crisis worse. A smaller and smaller number of active workers had to produce the cash flow (as Marxists say, the surplus value) to pay for the benefits of a larger and larger number of retirees. When LTV Steel filed for bankruptcy in 1986, it had about 1 active worker for every 4 retirees. The same ratio prevailed by 1993 throughout the integrated steel industry. In the automobile industry at that time, the ratio of active workers to retirees was about l: l, but growing steadily smaller.

There is a legal answer to this crisis, but it is not a law suit or a new collective bargaining agreement. The system of being health insurance and pensions to a single company, or even to a single industry, doesn't work. We need new national legislation. I believe that the United States will continue to have a benefits crisis until it has Canadian-style national health insurance and Social Security payments in old age sufficient to replace private pensions.

6. The Right and Duty not to Work Overtime when Brothers and Sisters are Laid Off

The heart of the labor movement has always been the struggle to control the length of the working day. In the eight-hour campaign of the 1880s, which ended with the Haymarket Massacre, workers sang:

We want to feel the sunshine;
we want to smell the flowers;
We're sure that God has willed it.
And we mean to have eight hours.
We're summoning our forces from
shipyard, shop and mill;
Eight hours for work, eight hours
for rest, eight hours for what we will.

David Roediger, Our Own Time: A History of American Labor and the Working Day, page 139.

According to Professor Roediger, the average hours worked in a week by fulltime workers in manufacturing industries have actually gown longer since the enactment of the Fair Labor Standards Act (the "Wages and Hours Act") in 1940.

Average Weekly Hours
1940 1948 1956 1964 1972	38.1 40.0 40.4 40.7 40.6

In February 1993, Labor Department statistics showed that the average factory worker worked 4.2 hours of overtime a week.

Why is this? Every worker knows part of the answer in his or her gut. The average working week has become longer because too many workers are willing to accept overtime when union brothers or sisters are laid off. And most dissident union groups have been afraid to tackle this issue head-on. Conference after conference passes resolutions supporting 40 hours' pay for 30 hours' work. But nobody organizes a movement to refuse overtime, if necessary by direct action.

The fight for the right to refuse overtime begins at the bargaining table. This is one subject where the wording of the contract can make a great deal of difference. Language that lets the employer require "reasonable" overtime is not much help, unless there is strong precedent in your particular workplace to support the reasonableness of saying No. It is not necessary or desirable to seek language forbidding overtime. If every worker has an individual right to accept or refuse overtime, peer pressure and education ought to be able to do the rest.

Once on a Solidarity USA bus trip I found myself sitting next to Ed Murphy. Before retirement, Ed was an active rank and filer in a company that made heavy machinery for the mills. The workers initially formed an independent union and then ("biggest mistake in my life," Ed will tell you) decided to join the Steelworkers. I asked Ed what the independent union did about overtime.

"Simple," he answered. "We used to have compulsory overtime until all six shop stewards refused to work more than 40 hours. We dared the company to do something about it. They let it pass, because they knew the whole shop would walk out if they fired the stewards. After that, little by little, more and more people stopped working more than 40 hours."

Overtime when union brothers and sisters are on the street is a daily, fundamental attack on solidarity. The same principle presents itself when there are layoffs. Will we opt for laying off the brothers and sisters with least seniority, or will we share whatever work is available, so that every one makes something? Often it is easier to share the work with regard to layoffs than to share the work by refusing overtime. Bosses want overtime because it lets them get the work done with fewer workers on the payroll, and therefore, pay benefits to fewer workers. But they may not care who is laid off or in what order.

7. The Right to do Something About It when the Company Tries to Leave Town

John Ingersoll, when he was a member of the rank and file caucus at the Homestead Works near Pittsburgh before the null closed, analyzed as follows the way the Basic Steel Contract divided decisionmaking between the company and the union. (M=Management, U=Union, J=Joint or shared)

The Right To:
Establish wages Establish hours Hire Fire Promote Discipline Maintain order and efficiency Determine products to be made Select officers and committeepersons Transfer workers Decide where plants will be located Determine production schedules Determine rate of production Determine standards of production	J M M J J J J M U J M M J J

Of the 14 listed rights, 8 are joint, 5 are management's, and only 1 is for the union. The contract is stacked against the union.

Actually, the contract is even more one-sided than John suggests, because the decisions left to management alone are the really big decisions: determining the products to be made and where plants will be located.

Workers need to control the big decisions in their enterprises as well as the small ones. To have control over their jobs, those who work for a living must control decisions about investment. How much is it worth to control the speed of the line, or to have the right to stop unsafe work, if the plant "runs away" to the South or to Mexico?

A number of Western European countries--Great Britain, West Germany, France, and the Netherlands--have passed laws that require a company to get government approval before it relocates or closes a plant. In February 1981, a national miners' strike forced the Tory government to cancel plans for shutting down as many as 50 mines. In Sweden, a law requires companies to negotiate with trade unions before ordering production changes, investing in new facilities, or buying another company.

Another approach is through collective bargaining. The possibility of relocating the whole plant is surely a "local issue." An aggressive local union might demand that, in return for a promise not to strike during the life of the contract, the company must promise not to leave. Or a union could demand that the company, if it were to leave, would have to pay workers their wages until they found new jobs.

Of course, the most effective way for a union to bargain over plant relocation would be for a national union to tell a company that if the company closed down in (let's say) Schenectady, the union would strike every plant in the country and follow the company with organizers wherever it tried to move.

Underlying all these ideas is the concept that when a company moves into a community, uses the energy of its young people, dirties its air and spoils its rivers or lakefront, the company loses the right to decide unilaterally that it will pull up stakes and move.

In the United States at the present time the law provides only the smallest handholds for those who want to work toward a rank-and-file voice in investment decisions. For instance, in any collective bargaining, if the company says it cannot afford to do something the union has a right to ask the company to back up that claim with accurate financial information. This is obviously only a first step. If where we want to go is the right to take part in decisions about whether we will have our jobs at all, we shall have to create new means to get there.

I have learned that working people aren't afraid of new ideas when their jobs are at stake. It was a steelworker in Youngstown who first suggested employee ownership of the closed mills ("Why don't we buy the damn place?"). Another steelworker in Pittsburgh proposed a "Monongahela Valley Authority" (like the Tennessee Valley Authority) to acquire through eminent domain and operate facilities that private industry no longer wants to run.

We will take a look at: what the Supreme Court has to say on this subject; the Weirton experiment; and court battles with U.S. Steel in Youngstown and General Motors in Ypsilanti, Michigan.

What the Supreme Court has to say. In June 1981, the Supreme Court held that an employer is not required by the NLRA to bargain with its employees over a decision to close part of its business. First National Maintenance Corp. v. NLRB, 452 US 666 (1981).

At the time the Supreme Court ruled in First National Maintenance, the courts of appeal in the Second (New York and Connecticut), Third (Pennsylvania, New Jersey, and Delaware), Sixth (Michigan, Ohio, Kentucky and Tennessee) and Seventh (Wisconsin, Illinois, and Indiana) circuits, had held in various cases that an employer has a duty to bargain over a partial shutdown. They reasoned that Sections 8(d) and 8(a)(5) of the NLRA require an employer to bargain in good faith with the union representing its employees "with respect to wages, hours, and other terms and conditions of employment," and that whether a plant stays open or closes is a "condition of employment." All these courts were in the Northeast and Midwest where plant closings have devastated communities like Youngstown.

The Eighth, Ninth, and Tenth circuit courts of appeal, all located west of the Mississippi, disagreed. They said that management didn't have to bargain over decisions involving "a major commitment of capital investment" or a "basic operational change." It was this conflict among the courts of appeal that brought the case to the Supreme Court.

The Supreme Court went with the Sunbelt. The most revealing sentence of its decision, written by Justice Blackmun (another liberal hero because he wrote Roe v. Wade), is: "Congress had no expectation [when it passed the National Labor Relations Act] that the elected union representative would become an equal partner in the running of the business enterprise in which the union's members are employed." The court said that unless it can be shown that a plant closing was motivated by hostility to a union rather than by economic reasons, management is free to make the shutdown decision without consulting the union.

The court said in passing that even though the law does not require a company to bargain over closing a plant, workers can obtain that right in contract negotiations. This is an illusion. Because an employer doesn't have to bargain over a partial closing, a union cannot insist on bargaining to impasse for contract language giving it this right, and if it strikes over this issue can be found to have committed an unfair labor practice. Moreover, unions in Barberton, Ohio that had contract language giving them the "right to bargain" over plant shutdowns found that such language didn't really give them power. The companies served them coffee, talked a little, and then did exactly what they had planned to do from the beginning.

First National Maintenance forced conscientious workers and union representatives to begin thinking about European-style solutions, such as employee and community ownership. If the Establishment complains that this is socialism, it has only itself to blame.

Weirton. The best-known example of an Employee Stock Ownership Plan (ESOP) is at Weirton Steel in Weirton, West Virginia. Weirton's conglomerate owner, National. Steel, announced that it was unwilling to make the investment requied to modernize the plant and bring it into compliance with environmental statutes. National suggested that Weirton's workers buy the mill. After a well-publicized campaign featuring the slogan, "We Can Do It!," Weirton's workers bought their mill for $200 million.

The following points should be considered in assessing whether the Weirton model might be right for you.

1. At this writing (1993) employee ownership at Weirton has succeeded in preserving 7000 jobs for 10 years.

2. Weirton steelworkers never joined the CIO. The Independent Steelworkers Union that promoted the employee buyout and presently represents hourly workers at Weirton, is and has always been a company union.

3. National Steel suggested the employee buyout because of the large sums it would have been contractually obligated to pay out (severance pay, early retirement pensions, etc.) had the mill shut down.

4. Although steelworkers at Weirton owned all the common stock of the new company for the first five years, and still own a majority of the common stock, they have never controlled the company. From the beginning a majority of directors has been appointed by or acceptable to the Wall Street investment firm Lazard Freres that arranges loans to the new company.

5. The Youngstown mills and the U.S. Steel Duquesne Works attempted employee buyouts but failed to obtain financing needed for modernization. The Youngstown mills made steel in open hearths, and lacked facilities for both modem steelmaking (basic oxygen or electric furnaces) and semi-finishing (continuous casters). The Duquesne Works had a basic oxygen furnace but no caster. In either Youngstown or Duquesne, there would have been no point in reopening without the capital (about $200 million at any of the Youngstown mills) to modernize at once. In contrast, Weirton had both basic oxygen furnace and continuous casting equipment at the time of the buyout. For this reason no huge immediate new investment was required when Weirton workers took over, and Weirton Steel operated quite profitably for the first five years.

6. In fall 1992, Weirton steelworkers filed a "stockholders' derivative suit" against the directors of their own company for negligently entering into a contract for the construction of certain furnaces without requiring a performance bond. Weirton Steel is now heavily leveraged and financially shaky.

Court battles with U.S. Steel in Youngstown and General Motors in Ypsilanti, Michigan. A final strategy has been to assert the rights of the community in which a mill or plant is located.

When U.S. Steel announced the closing of its Youngstown mills in 1979, 1 filed a law suit in Federal court on behalf of our Congressman, four local unions at the U.S. Steel facilities, two other unions in the community, an ecumenical religious group, and sixty-five individual steelworkers. We claimed that U.S. Steel's Youngstown superintendent told workers that if they could make the mills profitable, the company would keep them open; that in reliance on this promise, the union had made concessions and individual union members had spent money to buy )tomes and send their children to college; and that in announcing that the mills would close, U.S. Steel broke its promise.

To every one's astonishment, Judge Thomas Lambros ordered U.S. Steel to keep its Youngstown mills open until there could be a trial. After all, the judge said, Youngstown "was built around this industry. Everything that has happened in the Mahoning Valley has been happening for many years because of steel." It seems to me, the judge went on,

that a property right has arisen from this lengthy, long-established relationship between United States Steel, the steel industry as an institution, the community in Youngstown, the people in Mahoning County and the Mahoning Valley in having given and devoted their lives to this industry. . . . I think the law can recognize the property right to the extent that U.S. Steel cannot leave that Mahoning Valley and the Youngstown area in a state of waste, that it cannot completely abandon its obligation to that community.

Judge Lambros issued an injunction restraining U.S. Steel "from terminating the operations of the steel plants which have been scheduled for shutdown ... until further order of this Court."

But after a week-long trial in Youngstown the judge decided that the property right he described in issuing his injunction was not there, after all. He said that "United States Steel should not be permitted to leave the Youngstown area devastated after drawing the lifeblood of the community for so many years." But he concluded: "Unfortunately, the mechanism to reach this ideal settlement, to recognize this new property right, is not now in existence in the code of laws of our nation."

In 1993 a county court in Ypsilanti, Michigan made the decision that Judge Lambros could not bring himself to make in 1980. Circuit Judge Donald Shelton enjoined General Motors "from transferring the production of its Caprice sedan, and Buick and Cadillac station wagons, from the Willow Rum plant to any other facility."

The plaintiff, Ypsilanti Township, started the case when GM announced that it would transfer automobile assembly operations from its Willow Run plant in the township to Arlington, Texas, and then close Willow Run completely. The township alleged that GM had entered into an agreement with the township in 1988 to obtain a twelve year tax abatement. At the hearing on whether the tax abatement should be granted a GM representative had read a prepared statement that declared in part:

Upon completion of this project and favorable market demand, it will allow Willow Run to continue production and maintain continuous employment for our employees.

Judge Shelton concluded that these words constituted a promise, on which the township relied in granting the tax abatement, and that GM was therefore bound to "maintain continuous employment for our employees" until the abatement expired in the year 2000.

Along the way Judge Shelton said some remarkable things. For example he stated:

[Clontrary to the approach of the defendant in this case that "what is good for General Motors is good for the country," the truth is, as this case demonstrates, that what is good for General Motors may only coincidentally help, and often hurts, many of our people.

And at the end of his Opinion and Order he said the following:

[T]his Court . . . simply finds that the failure to act in this case would result in a terrible injustice and that the doctrine of promissory estoppel should be applied. Each judge who dons this robe assumes the awesome, and lonely, responsibility to make decisions about justice, and injustice, which will dramatically affect the way people are forced to live their lives. Every such decision must be the judge's own and it must be made honestly and in good conscience. There would be a gross inequity and patent unfairness if General Motors, having lulled the people of the Ypsilanti area into giving up millions of tax dollars which they so desperately need to educate their children and provide basic governmental services, is allowed to simply decide that it will desert 4500 workers and their families because it thinks it can make these same cars a little cheaper somewhere else. Perhaps another judge in another court would not feel moved by that injustice and would labor to find a legal rationalization to allow such conduct. But in this Court it is my responsibility to make that decision. My conscience will not allow this injustice to happen.