An Absolute Interference

At the center of Burns’s story is what he calls “the traditional strike,” which was the heart of trade union activity from the beginnings of labor history until its virtual disappearance after the 1970s. The crucial characteristic of the traditional strike — its sole reason for being — is that it forces capital to stop production. Although this fact may seem slightly obvious, its significance for both workers and radicals has been largely forgotten.

In the earliest days, when the labor movement was dominated by skilled craft workers who could not be easily replaced, a strike could simply consist of workers putting down their tools until their employers had met their demands. But with the advent of mass production, the majority of workers were now unskilled or semi-skilled and simply walking out on their jobs would only get them fired and replaced with scabs.

Therefore, the strike became a military confrontation in which workers had to physically prevent the restarting of production using scab labor. Hence the images of confrontation that run through American labor history: the Homestead strike, where thousands of workers lined the riverbeds to defend the town against invading Pinkertons. The urban streetcar strikes of the early twentieth century, featuring “a new form of guerrilla warfare, with hand-to-hand combat, night raids, cavalry charges, fighting from rooftops and behind barricades, and retreats in which the wounded were evacuated under heavy cover.” Or the 1934 Toledo Auto-Light strike, where picketers “broke into the plant and battled hand-to-hand to force the company, which had hired 1500 scabs, to stop production.”

The traditional strike was an open and unabashed physical attack on the private property rights of the capitalist, and this fact was never denied by the mainstream leaders of the trade union movement. Perhaps the most convincing feature of Burns’s account is that despite the author’s personal identification with the radical strand of the union tradition, he goes out of his way to draw on examples from the most conservative figures in labor history: the Samuel Gompers, the Dave Becks, the George Meanys.

These leaders not only accepted but took for granted that the labor movement must use or credibly threaten to use force to shut down capitalist production and that without this tool, nothing could be achieved by the trade union movement.

“A strike can only be effective if and when it brings about a cessation of production. It is an absolute interference on the part of workers with the right of employers to make profit.” So said Homer Martin, the conservative former Baptist minister handpicked by the Gompersite AFL leadership to serve briefly as the first United Auto Workers (UAW) president (before being overthrown by a more militant faction).

Radical tactics could only exist with a radical theory to support them. The act of blockading a private building in defiance of the police, the resort to forceful measures against scabs, are acts so deeply at odds with the law-abiding instincts of most people — working class, middle class, or otherwise — that they will not do them without a clear account in their own minds of why such behavior is justified.

That is why in the era of the traditional strike the labor movement was obliged to hold and propagate a counter-capitalist ideology based around the simple slogan that “labor is not a commodity” — the notion that it is illegitimate to treat human labor as something to be bought and sold for a market-clearing price, and that striking workers are therefore justified in using all necessary means to disrupt its sale.

From the nineteenth century until well into the 1950s, this rallying cry was so ubiquitous in the world of mainstream, non-socialist unions as to be a platitude. A simple Google Books search shows the phrase littering the pages of union journals from the Gilded Age onward. Walter Reuther was hardly a fiery radical, but when confronted with proto-neoliberal arguments about the sanctity of the free labor market, as he was on one occasion in 1953 while testifying before Congress, his ready-made reply was crisp: “Labor is not a commodity which you go and shop for in the free market place.”

Unions not only believed stopping production was their sole effective means of striking; they considered it to be, ultimately, their only source of power. Again, this notion was a truism, enshrined in college labor textbooks.

A 1956 industrial relations text baldly stated of “the strike, the boycott, and the picket line” that “there can be no collective bargaining, if, from the union’s standpoint it cannot utilize these means.” As late as 1980, a labor economics text explained simply: “The union’s ability to strike, and thus halt the employer’s production, is essential to the collective bargaining process. . . . [I]t is the potential of a disruption in production that induces employers to strive to effectuate agreement with the union.”

All this should give some sense of why the near disappearance of the production-halting strike since the 1980s is a phenomenon of such far-reaching importance.

Criminalizing the Strike

A large section of Burns’s book is devoted to meticulously tracing the path that led to today’s situation. Companies entered the post-WWII period sufficiently scarred by the militancy of the 1930s and sufficiently cowed by popular acceptance of working-class direct action that an “unspoken norm” developed, according to which management responded to any breakdown in collective bargaining by shutting down production on its own. This prevented the outbreaks of violence and embitterment associated with strikes and provided a calm atmosphere in which negotiations could take place.

But meanwhile, during this period of relative harmony, the judicial and political systems were quietly and insidiously entrapping the unions in a little-understood web of repressive measures that collectively make up what Burns calls “the system of labor control.” The system, which developed gradually from the late 1930s through the 1960s, functions as an organic whole.

No one piece destroyed the strike on its own; rather, each element carefully reinforces all the others. One of the system’s remarkable aspects is how juridically unorthodox it often is: as law scholars regularly point out, many court decisions clearly contradict the stated text of the National Labor Relations Act. Meanwhile, labor legislation often resorts to startlingly coercive state intervention to achieve its capitalist ends. The system is too elaborate to explain here in full, but a few details will give a flavor of how it operates.

• The most familiar element, the 1947 Taft-Hartley Act, explicitly made solidarity a crime by outlawing the secondary strike — the crucial technique of striking or picketing in support of workers at another firm. In one blow, the production-halting potential of strikes was drastically curtailed. Tellingly, under current law, peacefully standing outside a toy store handing out fliers urging a boycott is considered protected speech if done by a college anti-sweatshop activist; but it is an illegal act subject to fines and arrest if done by a union worker employed in a striking shop.

• The traditional capitalist insistence on freedom of contract was swept aside in the 1959 Landrum-Griffin Act, which declared null and void voluntary agreements between an employer and a union exempting the workers from handling “hot cargo” — that is, products made in struck shops.

• Over the years, a series of court decisions have ruled on the “intermittent strike.” This is a particularly effective technique in which workers strike for only an hour or two without physically leaving their jobs, making orderly management practically impossible while leaving workers largely invulnerable to replacement by scab labor. The intermittent strike has been ruled to be an unprotected strike act and therefore punishable by firing. But the finding so clearly runs counter to the literal text of the National Labor Relations Act that judges have been all but forced to admit that their real objection to the technique is its effectiveness. As one federal appeals court wrote, an intermittent strike “unreasonably interfere[s] with the employer without placing any commensurate economic burden on the employees.”

These measures placed serious obstacles in the way of successful strikes. But the real ticking time bomb of labor law was the Supreme Court’s 1938 decision in NLRB v. Mackay Radio giving employers the right to permanently replace striking workers.

One of the most criticized decisions in legal history, the “Mackay doctrine” discovered a previously unknown distinction between “discharging” striking workers — which the court acknowledged was not permitted by the NLRA — and merely “replacing” them permanently with scabs. As a result of this decision, the United States remains one of the few democratic countries in the world where strikers can be permanently replaced.

Once capitalists regained the initiative in the 1970s and 1980s, permanent replacement was the critical weapon that allowed them to go on the offensive. The postwar gentleman’s agreement that companies would shut down their own production rather than risk a confrontational strike came to an abrupt end. Now management actively sought to provoke strikes, with the intention of keeping production running and permanently replacing the workers, thereby getting rid of a union once and for all. Almost overnight, striking became a suicide mission for workers. The strike rate collapsed.

There are still strikes, of course, now and then. But they tend to be strikes of a new kind. Recent years have witnessed the growth of the “one-day strike,” for example, in which the union announces that it will strike for a day and then come back to work. The aim of the one-day strike is simply to generate publicity; it has no real value in stopping production. It would no doubt mystify Samuel Gompers if he were here to see it, to say nothing of Bill Haywood.

The Status Quo

Since the 1980s, the very idea of the production-halting strike has gradually dropped out of circulation among labor leaders. Today it  is virtually forgotten. In its place has sprouted a panoply of alternative panaceas for restoring labor’s strength — social unionism, community partnerships, the focus on organizing — all of which avoid the central issue.

In discussing this evasion, Burns scores the timidity of the dominant thinking within the labor movement. Yet in doing so he (inadvertently) calls to mind something unexpected: the ironic parallel between the anti-union radicalism within the Occupy movements and the well-ensconced union bureaucrats themselves.

In a crucial passage, the author astutely sketches the contradictory profile of the labor “progressives” who have taken leadership roles throughout the AFL-CIO in the last fifteen years. These figures have brought desperately needed changes to the labor movement’s stance towards immigrants, race, women, and foreign policy. And yet he concludes:

During the late 1970s and 1980s, when many of these activists entered the labor establishment, the leadership of most international unions was intensely conservative and hostile to progressive ideas. Working within a labor movement that lacked an aggressive or cohesive left wing, many formerly progressive policymakers accepted the new, management-centric order that was being created within the movement by the employer onslaught of the 1980s.

Adapting their own ideas to match this new conservative reality, these activists created the one-day strike, the corporate campaign, and social unionism — tactics that functioned comfortably within the existing structures imposed by management and the legal system. As a result, for the past two decades, many of these “progressives” have been essentially pushing a pragmatic, non-confrontational agenda, whose main ideas can be summed up as follows:

1. Unions must only fight within the bounds of the law
2. Workers and the workplace are not at the center of the struggle
3. Middle-class progressive staffers know more than workers and thus should take a lead role in union strategy
4. Progressive union staffers do not have different material interests than rank-and-file workers
5. Building organization, rather than confronting management, should be labor’s main mission
6. One can accept the fundamentals of capitalism and still devise effective trade union tactics
7. Ultimately, workers must rely on the power of the government in order to make gains
8. Militancy is naïve and should be marginalized
9. To argue that unions need to break free from the current labor system is too radical

“Taken together,” he concludes, “these ideas amount to an extremely conservative philosophy of trade unionism, a philosophy that would have been summarily rejected by previous generations of union leaders, on the left and right.”

Meanwhile, today’s generation of young radicals, like the progressive labor bureaucrats have spent all of their formative years living in the era of capitalist realism — the era of There is No Alternative. And it’s perhaps for this reason that each tenet of the union bureaucrat philosophy that Burns recounts finds its distorted mirror image in the views of the young anti-union radicals.

After all, the prevailing attitude in certain precincts of the Occupy movement is that unions by their very nature will never break the law. That workplaces are not at the center of the struggle. That middle-class intellectuals and full-time activists should take the lead role in strategy and that these groups do not have different material interests than rank-and-file workers. That building “communes,” rather than confronting capital, should be the movement’s main mission. And, above all, that one can tacitly resign oneself to the permanence of capitalism and neoliberalism and still devise effective movement tactics.

The irony is poignant. When Burns writes that “conservative trade unionists such as Samuel Gompers were more radical than even today’s labor left,” the same could be said of many of the Occupy movement’s young intellectuals.

What is refreshing about Burns’s approach is that he rejects the fatalism of both the union bureaucrats and anti-union radicals. Instead, he makes a practical yet audacious proposal for breaking free from the system of labor control so that workers can once again directly challenge the dominance of their employers’ property rights.

He argues that a militant current within the existing unions could support the creation of independent worker organizations possessing no assets and no property. These organizations would be able to violate Taft-Hartley and other laws: to strike and organize using tactics that defy the authorities and target the shutdown of production without fear of losing years of accumulated strike funds in lawsuits or court fines.

There are precedents: the Mineworkers’ sponsorship of Communist-led steelworker organizing in the mid 1930s; the establishment of AFL federal unions in the same period, most of whose members ended up joining the CIO. The basic concept was even endorsed by the American Federation of Teachers in a 2005 memo on possible future labor strategies.

The idea is straightforward, but it is sufficiently unconventional and risky that it is hard to imagine it happening in the absence of a once-in-a-generation radical upsurge. Burns published his book last May — four months before the occupation of Zuccotti Park.

Since then, a radical mobilization that many of us doubted we would see in our lifetimes has erupted. If we, as activists, students and intellectuals are serious about challenging capitalism, we will ask how we can help to foster a militant rank-and-file led workers’ movement. Because there are millions of them and far fewer of us. And without mass radicalization within the working class, sooner or later the oppressive curtain of capitalist realism will descend on us once again.