Resolved: A just government ought to recognize an unconditional
right of workers to strike.
November/December 2021 LD Brief*
*Published by Victory Briefs, PO Box 803338 #40503, Chicago, IL 60680‑3338. Edited by
Lawrence Zhou. Written by Marshall Bierson, Amadea Datel, SunHee Simon, and Lawrence
Zhou. Evidence cut by Jacob Nails. For customer support, please email help@victorybriefs.
com.
Contents
1
Topic Analysis by Marshall Bierson
5
1.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
1.1.1
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
1.1.2
Manner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
1.1.3
Who . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
1.1.4
Approaching the Topic . . . . . . . . . . . . . . . . . . . . . . . .
8
Affirmative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
1.2
1.3
1.4
2
3
1.2.1
A Liberal Case for the Right to Strike . . . . . . . . . . . . . . . .
10
1.2.2
Bargaining Balance . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
Negative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
1.3.1
Third Party Hostage Holding . . . . . . . . . . . . . . . . . . . . .
16
1.3.2
Public Sector Strikes . . . . . . . . . . . . . . . . . . . . . . . . . .
16
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
Topic Analysis by SunHee Simon
19
2.1
Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
2.2
Affirmative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
2.3
Negative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
2.4
Potential Frameworks . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25
Topic Analysis by Amadea Datel
26
3.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26
3.1.1
History/Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26
Interpreting the Topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
3.2.1
“Just government” . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
3.2.2
“Recognize” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
3.2.3
“Unconditional” . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29
3.2.4
“Right” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29
3.2.5
“Strike” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
3.2
2
Contents
3.3
3.4
3.5
4
5
Affirmative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
3.3.1
Inequality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
3.3.2
Political Capture . . . . . . . . . . . . . . . . . . . . . . . . . . . .
32
3.3.3
International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . .
32
Negative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
33
3.4.1
Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
33
3.4.2
Economic Growth . . . . . . . . . . . . . . . . . . . . . . . . . . .
33
3.4.3
Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
34
3.4.4
Advantage Counterplans . . . . . . . . . . . . . . . . . . . . . . .
34
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
35
Topic Analysis by Lawrence Zhou
36
4.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
36
4.1.1
A Right to Strike . . . . . . . . . . . . . . . . . . . . . . . . . . . .
37
4.1.2
Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
38
4.1.3
A Just Government . . . . . . . . . . . . . . . . . . . . . . . . . . .
41
4.2
Affirmative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42
4.3
Negative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45
4.4
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46
Evidence
47
5.1
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
47
5.1.1
Definition of Strike . . . . . . . . . . . . . . . . . . . . . . . . . . .
47
5.1.2
Strikes Include Partial Strikes . . . . . . . . . . . . . . . . . . . . .
48
5.1.3
Strikes = Goal‑Directed . . . . . . . . . . . . . . . . . . . . . . . . .
49
5.1.4
R2S = Legal Protection . . . . . . . . . . . . . . . . . . . . . . . . .
50
5.1.5
R2S is not Proportional . . . . . . . . . . . . . . . . . . . . . . . . .
51
5.1.6
R2S is not Right to Quit . . . . . . . . . . . . . . . . . . . . . . . .
52
5.1.7
R2S Improving . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
53
Affirmative Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
55
5.2.1
Harm Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
55
5.2.2
Liberty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
58
5.2.3
Freedom of Association . . . . . . . . . . . . . . . . . . . . . . . .
59
5.2.4
Oppression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
60
5.2.5
Non‑Domination . . . . . . . . . . . . . . . . . . . . . . . . . . . .
62
5.2.6
R2S Resists Domination . . . . . . . . . . . . . . . . . . . . . . . .
67
5.2.7
Unconditionality Key . . . . . . . . . . . . . . . . . . . . . . . . .
75
5.2
3
Contents
5.2.8
Signaling Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
80
5.2.9
AT: Freedom of Contract . . . . . . . . . . . . . . . . . . . . . . . .
82
5.2.10 AT: Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
87
5.2.11 AT: Essential Workers . . . . . . . . . . . . . . . . . . . . . . . . .
88
5.2.12 Strikes are Political . . . . . . . . . . . . . . . . . . . . . . . . . . .
89
5.2.13 Legal Change Key . . . . . . . . . . . . . . . . . . . . . . . . . . .
94
5.2.14 Rights Key . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
5.3
Negative Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
5.3.1
Essential Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
5.3.2
Economy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
5.3.3
Consumer Confidence . . . . . . . . . . . . . . . . . . . . . . . . . 109
5.3.4
Unemployment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
5.3.5
Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
5.3.6
Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
5.3.7
AT: Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
5.3.8
ILO Agrees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
5.3.9
Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
5.3.10 Counter‑Productive . . . . . . . . . . . . . . . . . . . . . . . . . . 123
5.3.11 No‑Strikes Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
5.3.12 AT: Bargaining Power . . . . . . . . . . . . . . . . . . . . . . . . . 125
5.3.13 AT: R2S is Political . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
5.3.14 Legal Change Not Key . . . . . . . . . . . . . . . . . . . . . . . . . 130
4
1 Topic Analysis by Marshall Bierson
Marshall Bierson is pursuing a PhD in philosophy at Florida State University and is
the Director of Curriculum for the Victory Briefs Institute. As a debater, he won sev‑
eral major tournaments, including the Greenhill Invitational and the Montgomery
Bell Academy Round Robin. As a coach, he has coached students to win or reach late
elimination rounds at many major national tournaments, including twice coaching
a student to finals of the TOC.
1.1 Introduction
What is an unconditional right to strike? Well, when one has a right to strike, it means
that one can strike without fearing external coercive reprisal. So, for example, if I choose
to strike, I will lose out on my wages. But if I have a right to strike, then I won’t also
get fined by the government for striking, nor will I be tossed in jail if I refuse to go back
to work. Your right to strike is protected, then, just if people cannot use external threats
to force you back to work. Of course, if the government recognizes your right to strike,
they must protect you not only against external government coercion, but also other
forms of external coercion. For example, your company does not have to pay you while
you are striking, but they cannot threaten to poison you unless you return to work.
One way to think about this is in terms of the enforceability of a contract. If I sign a
contract agreeing to perform a certain job, then if I don’t do that job, you can generally
use civil penalties to force me to do as I said I would. You can sue me, and if I refuse to
do the work I’ve agreed to do, you can exact a financial penalty from me.
But if I have a right to strike, then under certain conditions—those conditions which
would classify my refusal to work as a strike—then you will not be able to hold me to
my contract. If there is a right to strike then, legally, every employment contract has an
explicit exception saying people can refuse to work under certain conditions without
5
1 Topic Analysis by Marshall Bierson
risking external civil coercion. You cannot sue striking works, if they have a right to
strike, to force them to do the work they contracted to do.
Technically, the situation is a bit more complicated than that. You might have a right
to quit, but not a right to strike. For example, Section 17 of Kansas’s old “Court of
Industrial Relations Act” gave mining employees the right to quit work at any time, but
made it illegal “to induce others to quit their employment for the purpose and with
the intent to hinder, delay, limit or suspend” mining operations. So here you would be
allowed to quit work, and you could not be compelled to resume working. But you don’t
have the right to quit work as part of a coordinate strike designed to place economic
pressure on employers.
So, then, a right to strike is the ability to engage in the actions of a strike, including
the refusal to work, without fear of external coercive interference. But what then is an
‘unconditional’ right to strike? It’s a little challenging because an ‘unconditional right to
strike’ does not seem to be a term of art. The closest I’ve been able to find is the phrase
an ‘absolute right to strike’ which was made famous by the liberal supreme court justice
Louis Brandeis. In his decision for Dorchy v. State of Kansas, Justice Brandeis argues
that “neither the common law, nor the Fourteenth Amendment, confers the absolute
right to strike.”
In most legal jurisdictions, there are important limits on a right to strike. An absolute
right to strike, and presumably an unconditional right to strike, would eliminate those
restrictions. So, what are the ordinary restrictions on the right to strike. There seem to
be three such restrictions. First, there are restrictions on the purpose for which one can
strike. Second, there are restrictions on the manner or means of the strike. Third, there
are restrictions on who is allowed to strike.
Let’s consider examples of each.
1.1.1 Purpose
Justice Brandeis argues that why you are striking makes a difference to whether or not
a strike is legitimate. Thus, he says:
“The right to carry on business‑be it called liberty or property‑has value. To
interfere with this right without just cause is unlawful. The fact that the
injury was inflicted by a strike is sometimes a justification. But a strike may
be illegal because of its purpose, however orderly the manner in which it is
6
1 Topic Analysis by Marshall Bierson
conducted. To collect a stale claim due to a fellow member of the union who
was formerly employed in the business is not a permissible purpose. … To
enforce payment by a strike is clearly coercion. The Legislature may make
such action punishable criminally, as extortion or otherwise.”¹
Justice Brandeis argues that if strikers could strike for whatever they wanted, then it
would create a serious problem. And indeed, it seems obvious that we can imagine
situations where we think it would be illegitimate to use a strike to force certain kinds of
concessions. We can imagine extreme examples, a group of workers all strike unless the
owners of a company release nude photographs of themselves. But also, more realistic
examples that still might seem morally troubling, such as workers all refusing to work
unless the owner of a company refuses to support a certain political party or cause.
1.1.2 Manner
Manner restrictions are a little different. Strikes aim to create financial pressure on em‑
ployers. Historically, however strikes would sometimes use other modes of pressure as
well. Hampton Carson, writing in 1887, says:
”The result of all the cases, ignoring matters of detail or special circum‑
stances, appears to be as follows: Workmen may combine lawfully for their
own protection and common benefits; for the advancement of their own in‑
terests, for the development of skill in their trade or to prevent overcrowding
therein, or to encourage those belonging to their trade to enter their guild;
for the purpose of raising their wages or to secure a benefit which they can
claim by law. The moment, however, that they proceed by threats, intimida‑
tion, violence, obstruction, or molestation, in order to secure their ends; or
when their object be to impoverish third persons, or to extort money from
their employers, or to ruin their business, or to encourage strikes or breaches
of contract among others, or to restrict the freedom of others for the purpose
of compelling employers to conform to their views, or to attempt to enforce
rules upon those not members of their association, they render themselves
liable to indictment. ’The rights of workmen are conceded, but the exercise
of free‑will and freedom of action within the limits of the law is also secured
equally to the masters.’”²
¹Dorchy v. Kansas, 272 U.S. 306 (1926)
²Quoted in Mason, Alpheus T. “The Right to Strike.” University of Pennsylvania Law Review and
7
1 Topic Analysis by Marshall Bierson
While much of the above passage discusses the purpose in striking. It also, at times,
mentions the means used in striking. For example, it explicitly prohibits the use of
“threats, intimidation, violence, obstruction, or molestation.”
Now, I don’t think the affirmative needs to defend that an absolute right to strike in‑
cludes an absolute right to do anything that one labels a part of a strike. But there are
other manner restrictions that one might think are important limitations on an absolute
right to strike.
For example, in many states, hospital staff are legally required to give forewarning be‑
fore going on strike. Doctors cannot go on strike without alerting employers days, and
sometimes weeks, ahead of time. Why? Because it could great a pressing public health
emergency if hospitals were unable to make arrangements to care for patients currently
admitted to the hospitals! If a hospital won’t have doctors, you have to have time to
discharge and transfer patients to a place where they can still receive treatment.
1.1.3 Who
The last set of restrictions one might consider are on who is allowed to strike. For ex‑
ample, there are lots of restrictions on when, or even whether, public school teachers
are allowed to strike. We, as a society, frown on holding children hostage. As such, we
tend to place restrictions on whether public school teachers are allowed to strike. It is
plausible that doctors, fire fighters, and others who play certain essential functions in
society should not be allowed to strike.
Others argue that public sector employees in general should not be allowed to strike. If
you work for the government, the thought goes, you should lack a right to strike (indeed
many, including FDR, argued that public sector employees should not even have a right
to unionize).
1.1.4 Approaching the Topic
This is a tricky topic for the affirmative, largely because defending an unconditional
right to strike is a tall order. All the negative needs to do is show that there should
be any conditions on a right to strike. They need to show that doctors should not be
American Law Register, vol. 77, no. 1, The University of Pennsylvania Law Review, 1928, pp. 52–71,
https://doi.org/10.2307/3307561.
8
1 Topic Analysis by Marshall Bierson
allowed to strike last minute, or that public school teachers should not be allowed to
strike, or that you should only be allowed to strike for economic purposes. The affirma‑
tive, meanwhile, needs to show that there should be no conditions on a right to strike.
Now, no affirmative will be able to defend any and every strike. It is too easy for the
negative to come up with plausible strikes that seem clearly unjust. So, how can you
affirm?
You should think about the affirmative as, in some ways, similar to defenses of free
speech. When you defend free speech, you don’t bother to argue that any and all speech
plays a positive role in society. Those, like myself, who think hate speech should be
legally protected do NOT think that it is good that hate speech exists. Rather, we think
that it is too dangerous to criminalize speech, even speech that we regard as indefensi‑
ble.
Defenses of free speech take a procedural posture. They say that you should have the
right to say things, even if it would be evil to say such things, because the cost of having
any restrictions on speech are too high. Similarly, the affirmative on this topic will need
to take a procedural posture. They need to say that you should have the right to strike,
even where striking would be an evil thing to do, because it is too costly to have any
restrictions on the right to strike.
In what follows, then, I’m going to start by discussing the affirmative and suggest two
ways to justify such a procedural posture. Then, I’ll turn to the negative and suggest
various philosophically focused reasons why one might limit the right to strike.
1.2 Affirmative Arguments
There are two basic arguments that one can make for why workers should have a free‑
dom to strike, even if any given strike is unjust.
First, you might think that the right to strike helps protect an important freedom that
people have as free individuals. Second, you might think that an absolute right to strike
is necessary to counterbalance the stronger negotiating position of employers. Let’s
consider both arguments in turn.
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1 Topic Analysis by Marshall Bierson
1.2.1 A Liberal Case for the Right to Strike
The core idea behind the liberal insistence on freedom is that the right to strike is really
the freedom to strike. What a right to strike does is ensure that people cannot have their
labor conscripted against their will.
Terry Sheppard makes this point:
What are the union members being given when they exercise their right to
strike? Some would answer that they are being given higher wages, better
benefits or whatever else is sought by striking. If this is the case, then it is
untrue that workers have a right to any of these things. The liberal does not
allow that anyone has a right to a particular wage for a specific job. Those
philosophers who have protested the supply and demand determination of
prices and wages have created various schemes for an objective calculation
of wages and prices. Marx, for example, believed that each person should
be given a wage according to their need.
Liberals deny these claims and argue that the only price or wage is what
the market will bear. But this is not what unions are asserting when they
postulate a right to strike. There is no set wage or benefits package that is
morally justifiable outside the turbulent give and take of the free market. In
contrast to socialists, liberals do not believe that one end result is any more
just than another. As long as the rules of the game are just, the results will
be just. This is how liberals justify the often severe inequality present in a
liberal society and attack socialists for wanting to change the outcome. The
analogy that is often used focuses upon the rules of a game. It would make
little sense to criticize the score of a hockey game even if the home team is
defeated soundly. As long as all the rules apply equally to both teams, the
final score is just. Only if one team were allowed to be offside and the other
not would there be cause to question the outcome of the game. It does not
matter that one team is better and stronger than the other team.
Such is the case with labour negotiations. Liberals cannot complain that a
union receives too much in labour negotiations simply because it has the
bargaining power to exact a generous contract. Likewise, socialists cannot
complain if the union failed to have its demands met. What the unions are
really seeking is the right to enter into the labour negotiation process with‑
out the fear of the state’s coercive powers being used against them. It is a
10
1 Topic Analysis by Marshall Bierson
freedom they seek, the same freedom liberals seek for all individuals‑the
freedom from government interference. The right to strike is only a right
in the sense that unions have the right to enter into labour negotiations free
from government intervention. In the same sense, freedom of religion is a
right to worship free of state involvement.
So, the right to strike is really the freedom to strike. The argument has been
made that if the government is kept out of the labour field by providing
unions with a constitutionally protected freedom to strike, the balance of
power would be unfairly changed in favour of the unions. McIntyre J. makes
the point when he writes:
To intervene in that dynamic [i.e. that of labour negotiations]... by imply‑
ing constitutional protection for a right to strike would, in my view, give to
one of the contending forces an economic weapon removed from and made
immune, subject to s. 1, to legislative control which could go far towards
freezing the development of labour relations and curtailing the process of
evolution necessary to meet the changing circumstances of a modern soci‑
ety in a modern world.
McIntyre J. believes that in dismissing the case he is leaving the situation as
it was before with the power structure more or less equal. After all, he is
not taking the freedom to strike away from unions but merely allowing the
legislatures to regulate this freedom as they see fit. Unions can still legally
strike in the same manner as they always could.
The fact that some unions did strike, and strike successfully, does not mean
that unions had the legal freedom to strike. Even after this decision, some
unions will still strike. The conclusion that the freedom to strike is not com‑
promised because the government allows some strikes to go on is a non se‑
quitur. A totalitarian regime may allow certain religions to practice but ban
all others. Could this regime be said to have freedom of religion? What the
Supreme Court did in failing to recognize a constitutional freedom to strike
was to allow the government to step into any labour dispute and order the
union back to work, which, in effect, enervates the freedom to strike.³
The right to strike is, essentially, the right to refuse to work. And the right to refuse to
³Terry Sheppard, Liberalism and the Charter: Freedom of Association and the Right to Strike, 5 Dalhousie
J. LEGAL Stud. 117 (1996)
11
1 Topic Analysis by Marshall Bierson
work is simply a right people have as free persons.
To give the government the power to compel work is to violate the freedom of people.
And importantly, it violates that freedom even if the government never actually limits
one’s ability to strike.
According to Sheppard, violation of freedom comes, not from the actual coercion used
against strikers, but from the mere failure to guarantee people a right to strike. That is
because Sheppard understands freedom as a matter of non‑domination. It is not enough
that no one interferes with you, it must be the case that no one has the right and power
to interfere with you. Otherwise, your actions are objectionably dependent on the ap‑
proval of others. (For an introduction to the idea of freedom as non‑domination, check
out the Stanford Encyclopedia of Philosophy article on “Civic Republicanism” along
with the works of Phillip Pettit, perhaps starting with “Freedom as Anti Power.”)
Sheppard takes this idea further. He argues that essential to the liberal order is the idea
that rights are designed to insulate people against the coercive power of the majority as
exercised through democratic institutions. And it is this insulation that is threatened by
a lack of a right to strike.
Governments are also under pressure from their constituents to act on be‑
half of their greater good. To take a hypothetical example, Company A has
been deadlocked in a labour dispute for months. The company takes the po‑
sition that it simply cannot afford to meet the demands of the workers and
it cannot get the recalcitrant union to understand this. If the strike contin‑
ues, the company will be forced to take drastic actions. Plants will be closed,
jobs will be lost, or at the very least, prices will have to be raised. An ap‑
peal is then made to the government, either by the company or the public
(or the company on behalf of the public) to help settle the dispute. When
they are not constitutionally restrained from doing so, it is very difficult for
the state not to step in and force the union back to work. The case becomes
even more compelling when the work disruption affects the direct supply of
a product to the public, such as milk in the case of the dairy workers or mail
in a Canadian Union of Postal Workers’ (cupw) strike.
It is this democratic pressure that is responsible for more state interference
in labour disputes than, as the socialists would have it, a manipulative cap‑
italist class controlling government. The function of a liberal constitution
is to restrain the majority, through their elected officials, from compromis‑
12
1 Topic Analysis by Marshall Bierson
ing individual freedom. This role of liberalism as a restraint on democracy
is played out on many levels. Morally, the democratic majority may be ap‑
palled by the position someone takes in a speech but the liberal freedom of
speech is in place to prevent the majority from legislating against this person.
Economically, the majority may wish the minority of wealthy individuals to
shoulder an unfair percentage of the tax burden. Liberalism would preclude
the majority from exacting this.
From the liberal perspective, workers have no moral responsibility to pro‑
vide a product or service to the public. In a proper liberal constitution, the
public would be restrained from forcing them to do so. The moral impera‑
tive of liberalism compels each individual to provide the necessities of life
for herself. The public is no more allowed to force the worker back into the
factory than they are morally permitted to demand a share of her wages.
When a union goes on strike, especially if it is a large or public union, it
often tries to get the public on its side through advertising campaigns or
manipulation of the media. This approach has always seemed misguided.
There is no reason whatsoever for the union to need the public’s support.
The union is simply exercising their liberal freedom to strike and there is
no reason to think that the public would support it in this effort. More often
than not, the successes of a striking union are detrimental to the self‑interests
of those individuals outside of the union. Higher wages for union members
may mean that the products of that company go up in price. Unless the
individuals outside of the striking union are members of a similar union
which may be able to use the striking union’s wage increase as leverage in
their own negotiations, the public is either opposed to any wage increases
or indifferent. The only reason to launch a public relations campaign during
a strike is to prevent the public from pressuring the state to step into the
labour dispute.⁴
One line of argument for the affirmative, then, is to argue that an absolute right to strike
is essential to insulate individuals from the coercive power of a democratic population
to force us to work against our wills. The reason the right must be absolute, is because
any limitations are limitations imposed by a democratic populous, and that is precisely
the institution which liberalism requires us to protect individuals against.
⁴Terry Sheppard, Liberalism and the Charter: Freedom of Association and the Right to Strike, 5 Dalhousie
J. LEGAL Stud. 117 (1996)
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1 Topic Analysis by Marshall Bierson
1.2.2 Bargaining Balance
A second argument you could make for an absolute right to strike is that we must protect
the right to strike in order to counterbalance the bargaining position of employers and
employees.
In general, employers have greater bargaining power than employees. This is true, even
in the context of strikes. Here is Sheppard again:
McIntyre J. believes that in denying unions the freedom to strike he was
remaining impartial in the field of labour relations. In fact, he believes that
if unions were granted this freedom, he would be ”freezing” the ”process
of evolution” by giving unions an unfair advantage. In its present form,
the labour negotiation process is generally to the advantage of the employer.
Obviously, some unions have more bargaining power than others. However,
this power rarely exceeds that of their employer. For many reasons, unions
are reluctant to launch a strike and once they do strike, there are pressures
on a union to settle quickly. First, as Smith pointed out, the effects of a labour
dispute are more immediate to the workers than to management:
A landowner, a farmer, a master manufacturer, or merchant, though they
did not employ a single workman, could live a year or two upon the stocks
which they have already acquired. Many workmen could not subsist a week,
a few could subsist a month, and scarce any a year without employment. In
the long‑run the workman may be as necessary to his master as his master
is to him; but the necessity is not so immediate. [my emphasis].
Even farther removed are the stockholders of those companies that are pub‑
licly traded. Secondly, many companies will have a reserve of their product
on hand, especially if they have anticipated labour trouble, which will see
them through the initial strike period. Workers, on the other hand, may have
limited savings but even if they do, they will reluctantly dip into their life
savings or their child’s college fund, certainly more reluctantly than the com‑
pany will use up its surplus stock. Also, depending on the provincial legis‑
lation and the union contract, it may be possible for the company to bring
in replacement workers while the strikers must report for picket duty each
day. Where replacement workers cannot be used, some companies can get
by for a short time by using management to run the factory. Often, union
workers are restricted from finding a temporary job during the strike and
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1 Topic Analysis by Marshall Bierson
even when this is permissible, the hopes of finding an interim position are
limited. A strike may involve thousands of workers, each of them feeling
the effects of the work stoppage differently. This is why it is very difficult,
even in a small union, to maintain cohesion, while the employer can more
easily offer a united front.⁵
How could this be used to justify an absolute, or unconditional, right to strike? The ar‑
gument would not be that every strike is indeed just, but that it is sometimes important,
for purposes of bargaining, to be able to credibly threaten to do something unjust.
Think about this in terms of nuclear deterrence. The US has a credible posture of nuclear
deterrence. If Russia launches a broad nuclear strike against the US, the US will retaliate
by launching a devastating strike against Russia. Of course, at that point there is nothing
to be gained by launching the strike. The US has already been destroyed. Thus, the
counter strike will kill millions of innocent people for no reason.
But even if it would be bad to launch the nuclear weapons. It might not be bad to be
able to credibly threaten to launch the nuclear weapons. Because if the threat is credible,
the US posture equalizes the bargaining position between the US and Russia.
Similarly, even if it would be unjust to actually perform certain strikes, having the ability
to credibly threaten the strikes might be morally justified, if it helps equalize bargaining
positions producing fairer economic results.
1.3 Negative Arguments
I won’t spend too much time on negative arguments, largely because it is incredibly easy
to defend the negative on this topic. All you as the negative need to do is show that there
should be any conditions on when workers can strike. Almost everyone writing on the
subject assumes there should be some limits to the right to strike, and thus you should
have no problem developing a strategic negative case.
I will, however, briefly mention two types of strikes in particular that one might have
philosophical objection to.
⁵Terry Sheppard, Liberalism and the Charter: Freedom of Association and the Right to Strike, 5 Dalhousie
J. LEGAL Stud. 117 (1996)
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1 Topic Analysis by Marshall Bierson
1.3.1 Third Party Hostage Holding
Strikes, traditionally, are designed to place economic pressure on the person with whom
one is bargaining. For example, strikers harm the economic wellbeing of an employer.
However, sometimes the impact of strikes lands not on employers, but rather on inno‑
cent third parties. In such a case, we might well worry that such strikes violate a basic
requirement of justice to not use people as a means to an end.
One particularly vivid example of this is in teacher strikes. We are, of course, generally
sympathetic to teachers—who are systematically underpaid in our society—but when
teachers strike the primary harm is imposed on students, not on administrators. The
strike only creates pressure because administrators care about the wellbeing of students
(either for the student’s own sake, or to maintain a paying student body). Thus, the
strike seems to hold students ‘hostage.’
This point has been made by Agnes Callard in her reflection on the graduate student
strike conducted at the University of Chicago: “That is the bind I’m in. I’ve been called
upon by the union to cancel class to accommodate the strike. But, as I see it, that would
amount to using educational harms to undergraduates as an instrument to achieve grad‑
uate students’ ends. Such an action seems immoral to me, for reasons articulated by
Immanuel Kant: you are not allowed to use people merely as a means.”⁶
1.3.2 Public Sector Strikes
You might also object to public sector strikes. Indeed, many people (including JFK)
object to public sector unions across the board.
There are many reasons to be skeptical of public sector unions, and in particular public
sector strikes.⁷
First, public sector unions don’t have the same economic pressure to moderate their
demands. If a private sector union demands to much, the company will no longer be
profitable and so shut down or relocate to another country. If that happens, every union
⁶Callard, Agnes (Philosopher at the University of Chicago), “Persuade or Be Persuaded” June 2019. JThe
Point Magazine.
⁷Flanagan, Tom (Poly Sci professor at the University of Calgary) “Should Public Servants Have the
Right to Strike? No” Macdonald‑Laurier Institute. https://www.macdonaldlaurier.ca/should‑public‑
servants‑have‑the‑right‑to‑strike‑no/
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1 Topic Analysis by Marshall Bierson
member loses their job. Thus, private sector unions have a vested interest in the financial
wellbeing of their employers.
Public sector unions don’t work the same way. A government cannot offshore its func‑
tions to Asia, and so there is no risk of the government shutting down. Similarly, gov‑
ernments can acquire money either through enforceable coercion (by raising taxes), or
by fiat (printing money). These ways of raising money have harmful effects, but the
harm is not inflicted on the government but on the general population of a society. For
these and similar reasons, public sector unions don’t have the same incentive to avoid
unreasonable demands.
Second, public sector unions often have control both as employers and employees. For
example, teacher union members often constitute a huge percentage of the voting bloc
in local elections. Thus, as employers, politicians already have an incentive to cater to
the interests of public sector unions.
We can put this point more directly. Private sector employers are trying to maximize
their own profit. Governments are trying to promote the interest of everyone in society,
which includes the interest of public sector employees. Thus, it is less clear that there is
the same need for public sector unions.
1.4 Conclusion
I hope this topic analysis has given you some interesting things to think about. Good
luck in November/December and have a Merry Christmas.
are ethically justifiable. One line of thought appeals to a natural right of an inventor to
control the use of her innovation. This is the libertarian defense of IPRs which has its
historical roots in the writings of John Locke (Locke 1690). Robert Nozick has in more
modern times been an advocate for this line of thought (Nozick 1974). The libertarian
view endows individuals with a natural right of appropriation. This is the idea that any
innovator ⁄ worker who mixes her labor with a previously unowned object or natural
resource comes to own this object or resource in full and can legitimately deny that other
people use ⁄ appropriate this object or resource.
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1 Topic Analysis by Marshall Bierson
Traditionally, two distinct lines of thought have been fielded for the suggestion that
IPRs
are ethically justifiable. One line of thought appeals to a natural right of an inventor to
control the use of her innovation. This is the libertarian defense of IPRs which has its
historical roots in the writings of John Locke (Locke 1690). Robert Nozick has in more
modern times been an advocate for this line of thought (Nozick 1974). The libertarian
view endows individuals with a natural right of appropriation. This is the idea that any
innovator ⁄ worker who mixes her labor with a previously unowned object or natural
resource comes to own this object or resource in full and can legitimately deny that other
people use ⁄ appropriate this object or resou
18
2 Topic Analysis by SunHee Simon
SunHee Simon has participated in debate since the 7th grade and has been a cham‑
pionship debater in both Lincoln Douglas and Policy Debate. In 2015, she was one
of only two people to qualify to the Tournament of Champions in CX and LD. Her
freshman year at Stanford University, she earned the semifinal title at the Cross Ex‑
amination Debate Association (CEDA) national tournament. For several years, she
coached students independently, having gotten a variety of students to late elims,
finals, and/or championships of national tournaments like the Glenbrooks, NDCA,
Berkeley, Emory, and the TOC. She now coaches and teaches full‑time at Coppell
High School in Texas.
2.1 Context
One thing about this resolution is that it is extremely accessible. There aren’t niche
terms of art in the topic, and mostly everything is straightforward. A just government
will be defined in terms of its proximity to justice (or morality). This will probably be
contextualized by frameworks referring to elements like government legitimacy and
obligation. Recognition will probably be a matter of permissibility or legal recognition
of these rights. Unconditional right means that these workers will have the right to
strike without strings attached. Regarding the heart of the topic—what is means to
strike—there are common conditions you might find across definitions. First, striking
is prompted by disagreements between the employer and the employee. Second, the
goal of strikes has to do with changing work conditions. For example, Cambridge Dic‑
tionary¹ defines it as: “to refuse to continue working because of an argument with an
employer about working conditions, pay levels, or job cuts”. There are many types of
strikes but given that the resolution mentions workers striking, it is fair to assume (and
push others to believe) that we are discussing labor strikes.
¹Cambridge
Dictionary.
“Strike.”
nary.cambridge.org/us/dictionary/english/strike.
19
Cambridge
Dictionary,
dictio‑
2 Topic Analysis by SunHee Simon
Striking is not a new phenomenon and has defined historical events all over the world.
Keep in mind the resolution says a just government and does not specify nations. I
would encourage you to investigate worldly examples as you think about striking con‑
ditions and their efficacy. While you can track strikes as far back as ancient history, it
rises as a major political movement during the Industrial Revolution. At the beginning
of the 19ᵗh century, working conditions were atrocious and workers’ rights were obso‑
lete.² This led to the formation of unions. If you have not done research yet, know that
unions and strikes will likely go together when you put together your cases. Although
union membership, spiked during the 19ᵗh century, by the 1970s it started to decline.
For example, “12 percent of workers were union members in the United States” and
“France has one of the lowest rates, only 8 percent”.³ The decline in union membership
helps set the stage for why this resolution exists in the first place. Lack of protections
for workers has made it difficult for them to use striking as a tool.
However, union decline is not the only reason the resolution exists. One very impor‑
tant thing to keep in mind is that the right to strike already exist in many places. How‑
ever, this is where the resolution word ‘unconditional’ comes into play. For example,
the United States via the National Labor Relations Act “not only guarantees the right
of employees to strike, but also places limitations and qualifications on the exercise of
that right”.⁴ These limitations include (but are not limited to): violence, lack of enough
notification, or the type of field the workers are in. This is the norm internationally.
Many countries are falling between the extreme of an unconditional right to strike and
the extreme of absolute prohibitions on strikes. While the limitations may differ across
countries, the general principle is that people should be allowed to strike as long as it is
reasonably done⁵.
Quick note before we talk about arguments, please make sure you know that uncon‑
ditional strikes are NOT the same as the unconditional right to strike. Unconditional
strikes are strikes that are “resumed without negotiations”⁶. Why would anyone do
this? Sometimes, strikes can be used as a signal to employers of discontent and do not
always rely on a negotiation to come to an end.
²Humbert, Mathias. Technology and workforce: Comparison between the information revolution and the indus‑
trial revolution. No. STUDENT. 2007. Pg. 11
³Humbert, Mathias. Technology and workforce: Comparison between the information revolution and the indus‑
trial revolution. No. STUDENT. 2007. Pg. 11
⁴https://www.nlrb.gov/strikes
⁵“The Right to Strike and the ILO: The Legal Foundations.” International Trade Union Confederation, 15
Mar. 2014, www.ituc‑csi.org/the‑right‑to‑strike‑and‑the‑ilo.
⁶Peetz, David. ”Industrial action, the right to strike, ballots and the Fair Work Act in international context.”
Australian Journal of Labour Law 29.2 (2016): 133‑153; 146.
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2 Topic Analysis by SunHee Simon
2.2 Affirmative Arguments
First of all, as the affirmative you need to make sure you have a reasonable definition
of the unconditional right to strike. It is probably absurd to argue that the affirmative
must defend that under any and all circumstances, the right to strike must be recognized.
Extremes that come to mind pertain to things like violence. It might also help that in
some of the topic literature, some places say the United States has the unconditional
right to strike because the right to strike exists. You might want to use this logic going
into affirmatives unless you plan on being a bit more radical with your approach—more
on that in a bit.
As for affirmative arguments, a simple argument you can make is that the right to strike
is an intrinsic part of workers’ ability to have an equal relationship with their employ‑
ers. Why is an equal relationship necessary? If employers know that they can make
decisions without their employees’ interests at heart, it inevitably leads to exploitation.
Companies could push for long hours, less pay, remove benefits, deny time off, and do
many other things to increase the labor they extract from workers. The right to strike
allows for workers to have an essential bargaining chip to bring to the negotiation table.
The threat of not working puts corporations in a difficult position where they may lose
business if services are not provided. This is especially important for public sector work‑
ers who may often be low‑skilled, low‑income, and/or minority workers. The ability to
strike comes with increased wages, better benefits, and even more productivity.
The great thing about topics about just governments is that they also force us to think
about ethical and moral implications regarding what should be done when particular
circumstances line up. Affirmatives could argue that if there are unjust conditions, the
right to strike is an absolute necessity. For example, if the labor market is filled with un‑
fair conditions that promote exploitation of workers, the right to strike becomes a means
to restore a balance of power or, better yet, subvert and destroy that power imbalance.
Alex Gourevitch argues that workers do not actually choose to work without an aspect
of coercion. In a capitalist market system “workers…have no reasonable alternative to
selling their labor‑power…in capitalist societies most goods are only legally accessible
if you can buy them. There is no other way of reliably acquiring necessary goods”⁷. As
a result, this inability puts an incredibly amount of power in the hands of their employ‑
ers who understand that employment has become synonymous with survival. If this
⁷Gourevitch, Alex. ”Quitting work but not the job: Liberty and the right to strike.” Perspectives on Politics
14.2 (2016): 307‑323.
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2 Topic Analysis by SunHee Simon
is true, then workers have a right to their jobs. Anything that exploits this necessity
cannot be justified and should be fought against. If this exploitation happens, it proves
that “workers have the right to the job, and therefore to interfere with the employer’s
property rights and other workers’ contract rights”⁸. They are simply responding to a
violation that is already taking place.
Affirmatives might also call for recognition to take the form of governments protecting
the right that already exists. For example, the ILO has created standards for the right to
strike. However, nations like the United States undermine these standards. One such
standard it consistently undermines is allowing for employers to hire replacement work‑
ers when workers strike. Even though these workers are supposed to be temporary,
there are many instances where companies simply refuse to hire the strikers even when
the strike is over. This is not only harmful for workers in the United States, but it has
also proven harmful for workers who work for multinational corporations. Emily C.M.
O’Neill documents how a Dutch multinational company had a branch in the United
States. When workers decided to strike, this is what ensued:
“In response to the strike, the company hired replacement workers to fill
their jobs. The company‑maintained production for nearly two years, keep‑
ing the replacement workers on the job permanently. Even after the workers
had decided to end their strike and return to work, the company refused to
reinstate them.”⁹
This undermines the right for these workers to effectively strike and essentially holds
their jobs hostage. This is a major deterrent to workers expressing dissatisfaction and
makes their bargaining tool extremely ineffective.
However, let’s say you want to read something further to the left. Perhaps there are
critical affirmatives that will absolutely recognize the unconditional right to strike in
a literal sense—lack of notification, destruction, and extended periods could be fair
game. This might be worth exploring for affirmatives that are interested in things like
afropessimism, neocolonialism/decolonialism, radical feminism, or any other strong ap‑
proaches to reprimanding the civil society in which we live. Right now, strikes must fit
in a particular model for them to be seen as legitimate. This essentially forces workers
to ask for permission to express their discontent. Positions like this might argue that
⁸Gourevitch, Alex. ”Quitting work but not the job: Liberty and the right to strike.” Perspectives on Politics
14.2 (2016): 307‑323.
⁹O’Neill, Emily. ”The Right to Strike: How the United States Reduces it to the Freedom to Strike and
How International Framework Agreements can Redeem it.” Am. U. Labor & Emp. LF 2 (2011): i.
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2 Topic Analysis by SunHee Simon
workers should be able to just do what they have to do, even if that means pushing
against their own governments.
2.3 Negative Arguments
The conditional right to strike is fair game for the negative. There are a lot of different
alternatives the negative can push that reform labor conditions that allow for the right
to strike while still maintaining some standards. You might even be able to use the ILO
example I mentioned in the affirmative section. The ILO has created standards for the
right to strike. It is by no means unconditional and instead relies on the principle of
“strike reasonably” when it comes to this important bargaining tool.
One could also argue that the affirmative’s stance is far too radical. Companies are
already wary of the ability for workers to strike and do everything they can to diminish
the financial damages a strike can cost. If companies were faced with unconditional
rights to strike, they would be forced to use loopholes in the law to punish these workers
as a means of de‑incentivizing action. This would end up making the lives of those who
wish to strike under more restrictive conditions more difficult. It would also essentially
lead to more crackdowns on strikes because companies now have the fear that they can
be violent, last‑minute, and/or extremely costly.
Another argument you can consider is that the affirmative promotes hostage holding.
While I do not mean the literal hostages we would imagine in a stick‑up situation, it
certain does force innocent bystanders to be punished and held up against their will.
This can have multiple implications and you can go for this argument in a variety of
ways. You can talk about how certain jobs are incredibly important—hospital workers,
teachers, etc. When these people decide to strike and do so without any conditions,
they do it with little to know warning and very little ability for people to adapt. Some
affirmatives might say that’s the point and that’s what makes striking strong. However,
in fields where workers help determine the safety and livelihood of their consumers, this
is incredibly problematic. They hold students hostage, they hold sick patients hostage,
they hold innocent people who need those services hostage in a battle between them and
their employer.
For example, research conducted on university strikes revealed the impact of strikes
on students were overwhelmingly negative. Even if students felt good at first, the
longer the strike the more they “developed a sense of apathy towards their studies as
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2 Topic Analysis by SunHee Simon
a strike continued…most students have generally experienced feelings of anger over
being caught in the midst of a dispute, as well as feelings of anxiety concerning finan‑
cial implications of a strike and powerlessness over the situation”¹⁰. In fact, the logic
of the hostage holding argument not only proves why principally it is unjust but there
are many pragmatic implications to this “hostage” holding as well. You see the same
negative impacts as a result of other strikes in important lines of work. By collecting
data on strikes in Germany’s public transportation sectors, researchers found that “due
to higher traffic volumes and longer travel times, total car hours operated increase by
15% during strikes” which led to “a 14% increase in vehicle crashes, a 20% increase in
accident‑related injuries, a 14% increase in particle pollution, and an 11% increase in hos‑
pital admissions for respiratory diseases among young children”¹¹. They argued that
these strikes directly put people’s lives in danger by denying such an essential service
to people caught in the crossfire.
Another angle one could take if they want to go a bit further is that it does not matter
if they are essential workers. All workers, principally speaking, are holding bystanders
hostage. When they refuse to provide that service, they are preventing those who reg‑
ularly consume it from accessing it. These consumers have done nothing wrong. If we
truly care about things like justice, we have to make sure that actions are reciprocal and
everyone gets their due. Make no mistake—this argument does not necessarily say that
the strikers are the root of all evil. Companies that allow for this to happen are also drag‑
ging in innocent people. This is more reason to prefer holding companies accountable
and placing regulations that help sustain workers livelihoods as opposed to forcing the
workers to take actions that put themselves and companies in danger.
The affirmative also seems to be shifting the burden of change on workers. However,
there are plenty of things that can be done to address the reason why workers strike in
the first place. For example, if workers are upset about wages, there should be a push
for a living wage as opposed to the unconditional right to strike. If workers are wor‑
ried about working conditions, there should be regulations placed on companies that
heavily fine them for violating labor standards. A just government should be holding
corporations accountable not greenlighting all strikes and hoping they work it out them‑
selves. This logic opens up the way for a variety of advantage counterplans. For those
of you who are unfamiliar, these are counter advocacies that might not necessarily be
¹⁰Wickens, Christine M. ”The academic and psychosocial impact of labor unions and strikes on university
campuses.” Higher education: Teaching, internationalization and student issues (2011): 107‑133.
¹¹Bauernschuster, Stefan, Timo Hener, and Helmut Rainer. ”When labor disputes bring cities to a stand‑
still: The impact of public transit strikes on traffic, accidents, air pollution, and health.” American Eco‑
nomic Journal: Economic Policy 9.1 (2017): 1‑37.
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2 Topic Analysis by SunHee Simon
mutually exclusive from the affirmative but can solve the affirmative without the harms.
2.4 Potential Frameworks
There are couple frameworks that come to mind. I’ll get the most obvious ones out of the
way first. On the affirmative, you can easily go for structural violence. For those who
are unfamiliar, structural violence frameworks discuss the prevalence of oppression and
our moral obligation to address it. Many of the stock affirmative arguments about ex‑
ploitation, bargaining power, changing material conditions, and promoting economic
equity can all be ways voting affirmative can be consistent with combatting oppression.
Another common framework would be utilitarianism. This works well on both sides
but might be a bit more negative leaning depending on what types of arguments you
go for. The resolution asks about what ethical governments do. Plenty can be found
on why governments need to use utilitarian calculus to make their decisions. These
decisions allow for them to maximize the good and wellbeing of their people meaning
that only impacts can guarantee the most benefit socially should be prioritized.
Moving onto some introductory philosophy arguments, some of you may be interested
in reading Kant on the topic—or any other authors that prioritize freedom and agency.
I think there are compelling ways to read it on both sides and they might be really cool
debates to watch and participate in. On the affirmative, the inability to strike forces
workers to work and removes the ability for them to assert themselves. The right to
strike is a necessary part of recognizing their human capacity. On the negative, the
hostage holding arguments could used to show that unconditional rights to strike are
violations of the will the bystanders I mentioned earlier. I personally think this negative
framing is a better argument than one that tries to argue about the agency of corpora‑
tions to do whatever they want with their employees.
Hopefully these thoughts provide you with a starting point for your case construction.
Good luck!
25
3 Topic Analysis by Amadea Datel
Amadea Datel is a policy debater at Columbia University, where she won first place
and top speaker at the Mid America Championship, and reached finals at West Point
and semifinals at Wyoming. In high school, she built and coached her school’s debate
team, won several tournaments in Massachusetts, and was the top speaker and a
semifinalist at the MSDL State Championship and the first student from her school
to qualify to NSDA and NCFL Nationals, clearing at the former. This past summer,
she was an instructor for the Victory Briefs Institute in LD.
3.1 Introduction
From Amazon and Target employees organizing walkouts to fast food and delivery
workers participating in dozens of demonstrations, strikes have been on the rise in the
past few years. In 2018 and 2019, 455,400 workers were involved in strikes, marking the
largest two‑year average in 35 years. Since the pandemic began, that number has only
continued to grow, as the crisis has exacerbated injustices against workers, who often
aren’t granted paid sick time or leave and face retaliation when advocating for safety
precautions.¹ Such recent events make the November/December topic particularly rele‑
vant, as it seeks to answer two questions at the core of labor law: should workers have
a right to strike, and should that right be unconditional?
3.1.1 History/Context
From an international standpoint, numerous treaties guarantee the right to strike, al‑
though most recognize limitations on that right.
¹Celine McNicholas and Margaret Poydock, “Workers are striking during the coronavirus,” Economic
Policy Institute, June 22, 2020, https://www.epi.org/blog/thousands‑of‑workers‑have‑gone‑on‑strike‑
during‑the‑coronavirus‑labor‑law‑must‑be‑reformed‑to‑strengthen‑this‑fundamental‑right/
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3 Topic Analysis by Amadea Datel
Article 6(4) of the European Social Charter (ESC) of the European Council, which was
adopted in 1961 and revised in 1996, guarantees “the right of workers and employers
to collective action in cases of conflicts of interest, including the right to strike, subject
to obligations that might arise out of collective agreements previously entered into.”
Although most members of the European Council abide by the ESC, Austria, Poland,
and Turkey have refused to ratify Article 6(4), and Germany and the Netherlands have
created conditions on the right by passing laws that bar civil servants from striking.²
Article 27(1) of the Inter‑American Charter of Social Guarantees, which was adopted
in 1948, provides that “workers will have the right to strike. The law shall regulate
the conditions and exercise of that right.” The North American Agreement on Labor
Cooperation between the U.S., Canada, and Mexico, which was signed in 1993, includes
“Labor Principles” such as “The protection of the right of workers to strike in order to
defend their collective interests.”³
The United States recognized the right to strike in the National Labor Relations Act 1935
while placing several conditions on it. The Act separated strikers into four categories:
economic strikers who aim to obtain economic concessions from their employers, unfair
labor practice strikers who protest unjust practices, recognition strikers who attempt
to force employers to recognize unions, and jurisdictional strikers who refuse to work
to affirm workers’ rights to particular jobs. Unfair labor practice strikers are afforded
the most rights—they cannot be discharged or permanently replaced, while economic
strikers can be replaced.⁴ Moreover, the Act forbid strikes with unlawful purposes (such
as causing a union to commit an unfair labor practice), strikes that violate a no‑strike
provision of a contract, strikes that include misconduct (such as violence and threats of
violence), and strikes at health care institutions that do not give at least 10 days’ notice.⁵
²Bernd Waas, Strike as a Fundamental Right of the Workers and its Risks of Conflicting with other Fun‑
damental Rights of the Citizens (Santiago de Chile: World Congress, 2012), 5
³Ibid, 6
⁴“Are all types of strikes protected under the National Labor Relations Act?”, Society for Human Resource
Management (SHRM), https://www.shrm.org/resourcesandtools/tools‑and‑samples/hr‑qa/pages/cms_
021003.aspx
⁵“The Right to Strike,” National Labor Relations Board (NLRB), https://www.nlrb.gov/strikes
27
3 Topic Analysis by Amadea Datel
3.2 Interpreting the Topic
3.2.1 “Just government”
The framework debate will center around the term “just government” since the value
criterion will answer the question of how a government best promotes justice. The
phrasing raises the question of whether the resolution is making a statement about what
a government ought to do to become just or what a government that is already just
ought to do. The second interpretation could narrow the examples affs are responsible
for defending, which could allow them to exclude arguments about political backlash,
for instance, since they could argue that would never occur under a just government.
Conversely, negs could argue that the conditions that justify strikes—such as economic
inequality—would never be present under a just government. However, if the aff de‑
fines a just government as one that recognizes the unconditional right to strike, it seems
tautological to then argue that the obligation of a government that already recognizes
that right is to recognize that right, which is why I’m inclined to believe that the first
reading of the topic is more accurate. This first reading would then prevent the neg
from excluding aff plans or arguments about specific countries that ought to recognize
the right to strike on the basis that their governments are unjust.
3.2.2 “Recognize”
The Merriam‑Webster Dictionary defines “recognize” as “to acknowledge formally”⁶,
which favors affs in that they can defend various mechanisms for recognizing that right,
from simply acknowledging it in presidential statements to passing legislation that in‑
cludes enforcement. The former may lower the aff’s ability to solve their impacts but
prevent the neg from winning that governments should create specific conditions on the
right to strike—the most threatening category of neg arguments—because the aff could
argue that countries can recognize an unconditional right in international law while still
carving out exceptions at the level of implementation. Aff solvency could rely on percep‑
tion, since recognizing the right could be key to send international signals or strengthen
human rights norms which would be mitigated if treaties arbitrarily added conditions
to strikes. The neg could push back against affs that only formally acknowledge rights
by arguing that they must defend an enforcement mechanism, citing sources that define
⁶“Recognize,” Merriam‑Webster, https://www.merriam‑webster.com/dictionary/recognize
28
3 Topic Analysis by Amadea Datel
“legal rights” as “those recognized by government”⁷, which implies that the recognition
of a right entails legal action. This may be an uphill battle, though, as legal rights must
be recognized by the government, but not all rights that the government recognizes
must become part of its legal code.
3.2.3 “Unconditional”
The word “unconditional” creates a steep burden for the aff since there is a consensus
on its meaning as “That which is without condition; that which must be performed
without regard to what has happened or may happen”⁸ or “without conditions; without
restrictions; or absolute.”⁹ These definitions allow the neg to disprove the resolution by
agreeing that the government should protect the right to strike in all instances except
those that are clearly unjust, e.g. police unions striking against restrictions on the use
of force. Even if affs win that most conditions are unjust, that would be insufficient to
win them the round because they must defend the right in every single circumstance.
I expect affs to counter this burden by reading plans that recognize an unconditional
right to certain types of strikes, not all strikes, but it’s unclear whether they could spin
these as topical. Even if they claimed the right to strike in those instances would be
unconditional, they would still be setting initial conditions on the right to strike.
3.2.4 “Right”
The term “right” begs the question of whether the aff must recognize a positive
right to strike or the mere freedom to strike, which is another angle—in addition to
“recognize”—from which the neg can press the aff to defend legal enforcement. Rec‑
ognizing a positive right would entail that the government pass proactive legislation
that breaks down existing barriers to strikes, while recognizing a negative one would
simply imply that the government abstain from interfering in them. Currently, many
countries guarantee a “freedom to strike”—Article 12 of the Austrian Constitution
recognizes the freedom to strike under the freedom of association, Japan protects the
freedom to strike such that strikes cannot be held liable under common law torts,
Australia’s legal system provides for an “empowerment” of workers to strike by
⁷Linda
R.
Monk,
“Rights,”
PBS,
https://www.pbs.org/tpt/constitution‑usa‑peter‑
sagal/rights/#.YWR8XRBKiLp
⁸“Unconditional,” The Free Dictionary, https://legal‑dictionary.thefreedictionary.com/Unconditional
⁹“Unconditional Law and Legal Definition,” USLegal.com, https://definitions.uslegal.com/u/unconditional/
29
3 Topic Analysis by Amadea Datel
granting them exceptions and immunities, and Ireland’s law contains immunities that
protect workers and unions from certain liabilities. The use of the phrase “freedom
to strike” in all four countries’ legal codes or constitutions indicates a distinction with
the “right to strike”, which seems more forceful. For instance, Germany’s Constitution
only transformed the “freedom to strike” into a “right” after the Federal Labour Court
created the right of workers to suspend their contracts during a strike. Other countries
such as Israel and Argentina recognize striking as a “collective right” and their legal
codes afford more protections to workers who engage in them. Despite the term “right”
implying more government action than “freedom”, however, it is unclear that the term
mandates a specific form of enforcement.¹⁰
3.2.5 “Strike”
“Strike” is defined as “a work stoppage by a body of workers to enforce compliance with
demands made on an employer”¹¹, but also more broadly as “an attack that is intended
to seize or inflict damage on or destroy an objective.”¹² The second, more expansive
definition could favor the neg. Since the resolution does not only apply to workers in
the context of their jobs, negs could argue that the aff must defend that just governments
should recognize the right of workers to engage in illegal attacks that are completely
unrelated to their working conditions. However, this was clearly not the intention of
the Topic Committee and affs will be able to point to the common usage of the term
“strike” or define “right to strike” as a broader term of art to counter this argument.
Even assuming that strikes only include labor disputes, there is still a debate to be had
over which actions precisely constitute a strike. Legislatures in every country interpret
the word “strike” differently—Ireland considers it to include a stoppage of work and
concerted action that induces employers to accept or reject terms, Turkey defines it as
“any concerted cessation by employees of their work with the purpose of halting the
activities of an establishment or of paralyzing activities to a considerable extent, or any
abandonment by employees of their work”, Ecuador as “work stoppage by workers
collectively”, and the United States as “concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” Colombian legislation provides that the
suspension of work must be “peaceful” for it to be a strike, which could provide a basis
¹⁰Bernd Waas, Strike as a Fundamental Right of the Workers and its Risks of Conflicting with other Fun‑
damental Rights of the Citizens (Santiago de Chile: World Congress, 2012), 9‑13
¹¹“Strike,” Merriam‑Webster, https://www.merriam‑webster.com/dictionary/strike
¹²“Definitions for strike,” Definitions.net, https://www.definitions.net/definition/strike
30
3 Topic Analysis by Amadea Datel
for affs to exclude arguments about strikes turning violent.¹³
While these countries’ legislatures have attempted to define the term “strike”, others
such as Uruguay, Austria, Finland, Germany, Hungary, Israel, and Spain have reserved
the right to the courts. Most courts have erred towards defining “strike” in an expansive
way, with Finland determining that strikes must be linked to employment relationships,
Japan clarifying that they include a complete stoppage of work by a group of workers,
and the Netherlands refraining from defining the term altogether. Some scholars argue
that delineating which actions do or do not constitute strikes may limit the right in
practice. Instead, they believe trade unions themselves can define “strike” in court if a
debate arises over the term.¹⁴
On this topic, it makes the most sense to assume that countries agreeing to an interna‑
tional treaty on the “right to strike” will interpret the term differently based on their
pre‑existing legal statutes, which could lead to interesting neg arguments about certain
countries circumventing the right in practice or reinterpreting its recognition in a way
that benefits employers.
3.3 Affirmative Arguments
I’ll mainly be approaching the topic from a policy perspective, but the following aff
arguments are compatible under various frameworks, including those that approach
the topic from a structural violence or distributive justice lens. Regardless of which
framework affs choose, every successful case should be built around an “unconditional
right key” warrant (a reason why the right to strike must be unconditional to solve
every harm) and a “strikes key” warrant (a reason why strikes, as opposed to other
social welfare policies or right recognitions, are key to solve) to respond to the best neg
arguments on the topic.
3.3.1 Inequality
The core aff argument is that strikes establish safer working conditions and raise wages,
which have numerous benefits, including promoting economic growth and mitigating
¹³Bernd Waas, Strike as a Fundamental Right of the Workers and its Risks of Conflicting with other Fun‑
damental Rights of the Citizens (Santiago de Chile: World Congress, 2012), 9‑13
¹⁴Ibid
31
3 Topic Analysis by Amadea Datel
inequality. For example, in 2018, 20,000 West Virginia teachers walked out to protest
their working conditions, a movement that then spread across the country, leading to
significant gains. The “Fight for Fifteen” and “OUR Walmart” movements earlier in the
decade were also critical in securing a $15 minimum wage in New York and spurring a
nationwide movement for a higher minimum wage.¹⁵ Affs can diversify their impacts
by focusing on the impacts of strikes in different sectors of the economy, since inequality
in the education system, for example, has different effects than in the healthcare system.
They must win that current labor laws are too restrictive to avoid the neg’s arguments
that the status quo (which, in most countries, allows strikes under certain conditions)
solves, yet at the same time prove that strikes are effective to avoid the neg from winning
off a counterplan that solves inequality in an alternative way.
3.3.2 Political Capture
Another version of the inequality argument is political capture—if governments can
carve out exceptions to the right to strike, corporations will take advantage of loopholes
to restrict workers’ rights. For example, after the National Labor Relations Act recog‑
nized conditions that existed on strikes, the Supreme Court ruled that a “sit‑down”
strike, where employees stay in the plant and refuse to work, is not protected by the
law because it deprives the owner of property.¹⁶ Affs can also leverage this argument
against negative positions that claim to solve inequality in a different way, because only
by transferring power to the workers can governments ensure that companies will no
longer be able to rig politics in their favor.
3.3.3 International Law
The aff can also argue that recognizing the right to strike as a core tenant of interna‑
tional human rights law has global implications. Gaps in labor law can complicate fair
trade regulations between countries, since nations would violate their own laws by trad‑
ing with others that do not abide by similar restrictions, distorting market relationships
that are important for global development. A World Bank report argued that “[s]ound
industrial relations between employers and employees can lead to a stable economy”
¹⁵Kate Bahn, “The once and future role of strikes in ensuring U.S. worker power,” Washington Center for
Equitable Growth, August 19, 2019, https://equitablegrowth.org/the‑once‑and‑future‑role‑of‑strikes‑in‑
ensuring‑u‑s‑worker‑power/
¹⁶“The Right to Strike,” National Labor Relations Board (NLRB), https://www.nlrb.gov/strikes
32
3 Topic Analysis by Amadea Datel
and “developing labor standards needs to go hand in hand with building institutional
capacity and trust between workers, employers, and the government”, which could pro‑
vide the basis for arguments about the way trade impacts both domestic conditions in
countries and international relations.¹⁷
3.4 Negative Arguments
3.4.1 Conditions
The best negative argument on the topic is that certain conditions should exist on strikes,
which enables the neg to agree with the aff that just governments should recognize the
right to strike, but not in every single instance. Negs should find as many examples as
possible of conditions that should exist on strikes to force affs to justify why an uncon‑
ditional right is key, instead of allowing them to identify issues with one or two specific
exemptions. One condition could be the healthcare provision established in the Na‑
tional Labor Relations Act—the government doesn’t protect medical personnel’s right
to strike when it endangers the lives of their patients, so workers must abide by rules
such as informing their employers of their plans to strike 10 days ahead of time.¹⁸
3.4.2 Economic Growth
There are two forms of economic arguments the neg could run on this topic. The first
is that unconditional strikes make it impossible for companies to earn a profit because
workers will constantly be striking, which slows productivity and causes businesses to
shut down, leading to economic collapse. For example, studies from South Africa find
that frequent (and often violent) strikes in 2014 reduced productive capital in the mining
sector, which sharply increased the price of the output, decreased the country’s GDP,
and weakened the local currency. Even if a more equal distribution of wealth would
benefit the economy, employers invent excuses to fire workers on strike (such as opera‑
tional constraints) which nullifies the effect of strikes while resulting in unemployment
and periods of labor shortages.¹⁹ The second argument is not dependent on the actual
¹⁷Jonathan P. Hiatt and Deborah Greenfield, The Importance of Core Labor Rights in World Development
(Michigan Journal of International Law: 2004), 46‑47
¹⁸“The Right to Strike,” National Labor Relations Board (NLRB), https://www.nlrb.gov/strikes
¹⁹Mlungisi Tenza, The effects of violent strikes on the economy of a developing country: a case of South Africa
(Obiter: 2020), 519‑537
33
3 Topic Analysis by Amadea Datel
consequences of the aff’s implementation, but the perception of companies once the
government recognizes the right. If corporations are concerned about their survival at
a time when markets are still vulnerable, they would invest less in the economy which
would derail its recovery post‑Covid.
3.4.3 Politics
Since workers’ rights are such a divisive political issue, this topic lends itself well to
politics disadvantages, which argue that affirming workers’ rights would sap Biden’s
political capital necessary to rally Congress around other bills or lead to backlash against
Democrats in the midterm elections. Since this is an international topic, negs will have
access to thousands of politics DAs about every country, so the aff will need to develop
one strategy that can respond to most of them. The neg’s link will vary depending on
the aff’s mechanism—since the term “just government” is so vague, the aff could argue
that state governments would recognize the right to avoid links about the federal gov‑
ernment but may have to sacrifice international signaling solvency. Even at the federal
level, many actors could potentially be involved in passing the resolution, which the aff
could leverage to skirt specific arguments about the plan causing congressional fights,
for example.
3.4.4 Advantage Counterplans
Due to the many proposals that exist to counter inequality, the neg has a variety of
advantage counterplans to choose from that will solve most affs while not impeding
economic growth or avoiding necessary conditions on strikes. These include counter‑
plans that directly change the laws around unionization, such as repealing right to work
laws in the U.S. or otherwise facilitating collective bargaining so workers do not have
to resort to strikes; pass alternative policies that mitigate inequality, such as Universal
Basic Incomes or federal minimum wage laws; or recognize different but related rights,
such as fair working conditions. The first two categories may even resolve the material
conditions caused by inequality even better than affs that merely recognize the exis‑
tence of a right without providing for enforcement. The latter type of counterplan can
take advantage of aff claims that simply recognizing a right can effect change and is
more likely to solve affs reliant on international signaling, which individual policies in
different countries cannot access.
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3 Topic Analysis by Amadea Datel
3.5 Conclusion
Although the topic area is interesting and relevant, the resolution’s vague wording
makes it likely to devolve into definition debates, specifically over what constitutes a
just government, what it means for a government to recognize a right, and what burden
“unconditional” presents for the affirmative. I expect the topic to be skewed towards the
neg because of the word “unconditional”, which sets a high burden for the aff since the
neg can carve out any one condition—or exception—that should exist to the right to
strike, but I’m excited to see how debaters interpret the topic.
35
4 Topic Analysis by Lawrence Zhou
Lawrence Zhou is the Director of Lincoln‑Douglas Debate and Publishing at Victory
Briefs. He debated at Bartlesville HS in Oklahoma (2010‑2014) in Lincoln‑Douglas
debate where he was the 2014 NSDA Lincoln‑Douglas national champion. While
attending the University of Oklahoma, he placed as the National Runner Up at the
2018 Intercollegiate Ethics Bowl National Competition, advanced to outrounds at
the 2016 and 2018 Cross Examination Debate Association National Tournament,
and championed the Beijing Language and Culture University in British Parliamen‑
tary debate. Lawrence graduated in 2019 with degrees in MIS, Marketing, and Phi‑
losophy. He was formerly the Debate League Director at the National High School
Debate League of China and is currently a graduate assistant at the University of
Wyoming, head coach of Team Wyoming, and an assistant coach at Apple Valley
High School. His students have advanced to late outrounds at numerous regional
and national invitational tournaments, including finals appearances at the NSDA
National Tournament semifinals appearances at the Tournament of Champions.
4.1 Introduction
If you Google the phrase “ ‘unconditional right of workers to strike’ ” in an incognito
tab (it helps make sure your search is not influenced by your previous search history,
though it isn’t as effective as some think¹), you get about two pages of results. Most
of those results are about the Lincoln‑Douglas debate topic being announced. If you
then Google the phrase “ ‘unconditional right of workers to strike’ ‑Lincoln‑Douglas”
(the quotation marks ensure an exact match and the “‑” excludes the following phrase²),
you get 6 results, 5 of which are still about—you guessed it—the Lincoln‑Douglas debate
topic. The only result that appears not about LD is a Google Books result to a book called
¹https://www.wired.com/story/incognito‑mode‑explainer/
²https://support.google.com/websearch/answer/2466433?hl=en
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4 Topic Analysis by Lawrence Zhou
German Communism, Workers’ Protest, and Labor Unions where the phrase “unconditional
right to strike” appears on page 110 as part of the KPD’s platform with no definition.
So it appears we have a topic where the actual wording in the resolution is not an actual
term of art. Always a great start to a topic… So, let’s think about some terms in the
resolution that actually do have definitions.
4.1.1 A Right to Strike
The most obvious place to start is “strike.” A strike is a “collective refusal of employees
to work under the conditions required by employers.”³ Many strikes occur through
labor unions or “an organization formed by workers in a particular trade, industry, or
company for the purpose of improving pay, benefits, and working conditions.”⁴
An official strike is “a work stoppage by union members that is endorsed by the union
and that follows the legal requirements for striking, such as being voted on by a ma‑
jority of union members. Workers engaging in official strikes have better protections
against being fired as opposed to an unofficial strike.”⁵ The key to successful strikes is
the concept of “collective bargaining” since “any one individual worker usually has lit‑
tle bargaining power in relation to their boss or company owners. As a group, workers
are better able to negotiate and make threats, such as a strike.”⁶
A wave of labor unrest is currently unfolding in the US, with thousands striking. This
builds upon a series of teacher strikes in 2018 and 2019 that won major victories and
gave the American labor movement a significant boost in terms of its legitimacy and
efficacy.⁷ Currently, over 100,000 workers in various industries are threatening to go
on strike and join New York hospital workers, Massachusetts nurses, and Kellogg plant
workers across the country.⁸ These mass movements even include 10,000 workers from
the United Auto Workers union who went on strike against John Deere.⁹ These recent
labor movements are connected with a long history of fights for labor rights. From
the Great Southwest Railroad Strike of 1886¹⁰ to the IPS Workers Strike of 1997,¹¹ labor
³https://www.britannica.com/topic/strike‑industrial‑relations
⁴https://www.investopedia.com/terms/l/labor‑union.asp
⁵https://www.investopedia.com/terms/o/official‑strike.asp
⁶https://www.investopedia.com/the‑10‑biggest‑strikes‑in‑u‑s‑history‑4773384
⁷https://www.theguardian.com/us‑news/2021/oct/01/us‑labor‑unrest‑unions‑strikes
⁸https://thehill.com/business‑a‑lobbying/576456‑more‑than‑100k‑workers‑threaten‑strikes‑as‑unions‑flex‑muscles
⁹https://www.cnn.com/2021/10/14/business/john‑deere‑strike‑uaw/index.html
¹⁰https://guides.loc.gov/chronicling‑america‑railroad‑strike‑1886
¹¹https://www.jacobinmag.com/2017/08/ups‑strike‑teamsters‑logistics‑labor‑unions‑work
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4 Topic Analysis by Lawrence Zhou
strikes have secured massive and valuable gains for workers.
A “right to strike” is a legal term. In the US legal context, Section 7 of the National Labor
Relations Act states:
Sec. 7. [§ 157.] Employees shall have the right to self‑organization, to form,
join, or assist labor organizations, to bargain collectively through represen‑
tatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, and
shall also have the right to refrain from any or all of such activities except to
the extent that such right may be affected by an agreement requiring mem‑
bership in a labor organization as a condition of employment as authorized
in section 8(a)(3) [section 158(a)(3) of this title].¹²
The details of what strikes are and what a right to strike is are a bit difficult to commu‑
nicate in a short topic analysis essay, so I direct readers to the National Labor Relations
Board page on “The Right to Strike”¹³ and a very readable Vox article titled “5 questions
about labor strikes that you were too embarrassed to ask.”¹⁴ I think both of these articles
do a much better job than I could at explaining what strikes are, what types of strikes
are illegal, and what a right to strike actually entails.
4.1.2 Unconditional
Now the phrase that is concerning is “unconditional.” For one, as mentioned above,
there is really no such thing as an unconditional right to strike in the literature.
As a brief aside, it bothers me that at least some significant percentage of the LD voting
base (both students, who gave the topic 40% of their vote, and coaches, who gave the
topic 42% of their vote) clearly did not even bother Googling the resolution before vot‑
ing. Anyone who even bothered copy‑pasting the resolution into a search engine would
realize that the topic would suck. The other two topics, while sounding less appealing,
clearly had far more support in the literature and were actually debatable, a conclusion
that one would reach with even just 10 minutes of research. Of course, this is a com‑
munity that voted for public health versus civil liberties and that awful topic about the
¹²https://www.nlrb.gov/guidance/key‑reference‑materials/ley‑de‑relaciones‑obrero‑patronales
¹³https://www.nlrb.gov/strikes
¹⁴https://www.vox.com/policy‑and‑politics/2019/9/20/20873867/worker‑strike‑walkout‑stoppage‑firing‑job
38
4 Topic Analysis by Lawrence Zhou
right to know a few years ago, so maybe I should just accept that voters are generally un‑
informed¹⁵ and that uninformed voters will vote in ways that are systematically out of
line with their preferences.¹⁶ I assume anyone reading this topic analysis essay does not
fall prey to this objection, but it is disheartening to see two whole months of debate get
wasted on such a bad topic when the other options of labor standards and mandatory
arbitration were so much better.
Anyways, what is “unconditional”? And what is an “unconditional right”?
Truthfully, I have no clue. If you search up the term “unconditional right,” you get a
wide variety of answers, but it’s not clear what any of them mean. Marshall Bierson
already takes a deeper dive into what an unconditional right to strike might mean (he
suggests it’s analogous to an “absolute” right to strike), so I will not repeat Bierson’s
analysis here. Instead, I will take a brief detour into thinking about what unconditional
rights are in general.
David Miller, a relatively well‑known English philosopher, has a paper entitled “Are
Human Rights Conditional?”¹⁷ Here, Miller argues that the traditional assumption that
human rights are unconditional entails two conditions: They do not have to be earned
(you have them simply by virtue of your humanity), and they cannot be alienated. By
“alienated,” Miller suggests that “they are not things that a person can lose by virtue of
the way she acts.”¹⁸ However, this theory (what Miller terms the “naive view”) faces
difficulties when juxtaposed with practice. In wars, people are killed and wounded,
clear violations of their human rights to life, bodily integrity, and health. In criminal
justice, we punish and sanction individuals for crimes against the polis, clear violations
of human rights to liberty and freedom of movement. In self‑defense, people grievously
injure or even kill others to protect themselves. Almost all other rights, from free speech
to the freedom of movement, face serious curtailments or limitations in the real world
(you cannot shout “fire” in a crowded theater nor barge into someone’s home unan‑
nounced and without their prior permission). Not only are human rights commonly
subject to curtailment, we seem to accept that they can also be forfeited.
This becomes even more salient when it concerns less settled rights that enjoy far less
consensus about their value. For example, while many philosophers are willing to grant
something like a right to shelter, it seems just as many are unwilling to grant such a right
¹⁵https://www.newyorker.com/magazine/2016/11/07/the‑case‑against‑democracy
¹⁶https://doi.org/10.1016/j.electstud.2013.09.009
¹⁷https://www.politics.ox.ac.uk/materials/centres/social‑justice/working‑papers/SJ020_Miller_Are%20Human%20Rights%20Con
¹⁸Ibid.
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4 Topic Analysis by Lawrence Zhou
unconditionally.¹⁹
This, I think, begins to expose the scale of the problem—if even basic human rights like
the right to life don’t seem to enjoy unconditional status, it seems difficult to think that
some right like the right to strike would enjoy unconditional status. Whatever your
view on rights, it seems obvious that the right to strike does not enjoy the status and
protection equivalent to something like a primary right, e.g. the right to life. From the
start, I think the affirmative is significantly disadvantaged because the burden for prov‑
ing an unconditional right to something is a tall order. Even a topic like, “Resolved: A
just government ought to recognize an unconditional right to life” seems somewhat
negative‑biased to me; this topic seems an order of magnitude more skewed for the
negative. Even accepting rights are “fundamental” or enjoy “primary status” does not
scale up to demonstrating that such rights are “unconditional.”
Does this imply that the affirmative is ultimately without recourse? Perhaps. In general,
I think debates are often determined more by technical mistakes than the truth value of
arguments. On topics like whether there is a right to immigration or a right to hous‑
ing (hint: both are rights), the literature was significantly slanted towards one side and
yet the win rates were not wildly out of balance. Granted, both of those topics were
aff‑biased substantively while the negative still enjoyed a relatively strong structural
bias (the 1AR is just such a difficult speech to give, change the 1AR speech times!²⁰), so
perhaps structural biases offset substantive biases. This is a topic where the negative
seems to be heavily favored both structurally and substantively and that might create
new imbalances.
This might create a sense of despair for some debaters (after all, you will have to debate
as the affirmative in about half of your rounds!). In fact, after a few hours of trying to
find a single article that actually supported the affirmative (I still haven’t found one yet),
I jokingly remarked to several other members of the Apple Valley coaching staff that
the best affirmative argument was likely “PICs bad” (a theory argument, or procedural
objection, against counterplans that try and introduce certain exceptions and conditions
in which there ought not be a right to strike) and that this would be a great topic for
honing one’s theory debating skills. (Of course, this is not a reasonable prescription for
most teams debating in more local or traditional circuits.)
So, what can the affirmative do? Well, I think some of Bierson’s suggestions about how
the affirmative should approach the topic make sense to me and I will elaborate on
¹⁹https://digitalcommons.law.yale.edu/fss_papers/459/
²⁰https://www.vbriefly.com/2018/11/08/theis‑thursday‑changing‑affirmative‑speech‑times/
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4 Topic Analysis by Lawrence Zhou
some substantive strategies that I think could benefit the affirmative. However, I think
that one potentially fruitful approach is to seek out creative definitions of what uncon‑
ditional entails, especially by digging through legal literature. While I have yet to find
a satisfactory definition of “unconditional” that helps insulate the affirmative from a
negative strategy that involves slinging a dozen conditions in which the right to strike
ought not be recognized, I suspect that there is some random court ruling somewhere
that uses the term “unconditional” in a way that does not require “unconditional” to be,
in fact, “unconditional.”
The other approach I considered is to argue that the right to strike itself is fairly limited.
For example, Cambridge Dictionary defines a strike as “to refuse to continue working
because of an argument with an employer about working conditions, pay levels, or job
cuts.”²¹ I think that the affirmative could argue that the right of workers to strike only
relates to working conditions, pay levels, or job cuts, and that the “unconditional” na‑
ture of a right to strike only protects the right to strike in those instances, but would not
protect workers if they decided to strike illegally.
I’m not particularly convinced that either approach truly rectifies the problem, but I
think both are potential ways to define the topic in a way that doesn’t ensure the affir‑
mative loses from the start.
4.1.3 A Just Government
The other terms in the resolution are less important. “Workers” doesn’t really add any
clarity to the topic and “ought” is basically an LD staple at this point. This leaves the
phrase “A just government.”
For reasons expounded upon in Nebel’s 2014 article “On Specifying ‘Just Govern‑
ments,’ ” I do not think the affirmative is permitted to specify a particular government
or set of governments recognizing an unconditional right to strike.²² Similarly, I do
not think that the negative can PIC out of (do all of the affirmative minus some part of
the affirmative advocacy) a particular government or set of governments. In the same
way that pointing out that some dogs (sadly) do not have four legs does not negate the
statement “A dog has four legs,” pointing out that some government(s), e.g. the US or
China, should not grant an unconditional right to strike does not negate the statement
²¹https://dictionary.cambridge.org/us/dictionary/english/strike
²²https://www.vbriefly.com/2014/12/19/jake‑nebel‑on‑specifying‑just‑governments/
41
4 Topic Analysis by Lawrence Zhou
that a just government ought to grant an unconditional right to strike (leaving aside
questions about whether either the US or China are just governments).
I suspect that cards from that article will see a resurgence on this topic, so I recommend
that all debaters, regardless of their stance on so‑called Nebel T (a term I find strange
given that Nebel’s argument merely reflects the consensus view in linguistics²³), think
about the arguments for and against specification as well as arguments for and against
“Permutation: Do the counterplan” against country PICs.
4.2 Affirmative Arguments
I will admit my bias from the start—I do not know what an unconditional right to strike
is, but however it is characterized, I have trouble understanding how it could be good.
If one reads the phrase as “unconditional” as near absolute, then the negative merely
needs to demonstrate some non‑zero circumstances in which such a right would be bad.
The list of terrible instances to allow strikes I came up with on day one of the topic release
included not allowing doctors to strike during a pandemic, not allowing workers to
strike because they disliked that their company was hiring people of color, not allowing
workers to strike by firebombing their place of employment, and not allowing workers
to strike because they all want a billion dollars a year.
This is compounded by the fact that the negative can also just go for generic “strikes bad”
type arguments. This forces the affirmative to not just defend that strikes are generally
good but also that they’re good in virtually every specific circumstance.
Obviously, it is totally unreasonable to expect the affirmative to defend the latter—there
are simply too many circumstances in which the right to strike could be abused and
expecting the affirmative to have an answer to all of them would clearly require a lit‑
eral mountain of prep. So, other than arguing that every type of strike is good (both a
ridiculous burden in terms of workload but also substantively), what recourse does the
affirmative have?
I’ll set aside the general strikes good/bad debate because I think the literature out there
is incredibly easy to read and probably tilts affirmative in terms of quality. I also doubt
that many negatives will choose the path of most resistance to a negative ballot, so
I imagine that few debates will be decided by general strikes good/bad debates (es‑
pecially because the right to strike is already generally recognized, so disadvantages
²³https://plato.stanford.edu/entries/generics/
42
4 Topic Analysis by Lawrence Zhou
premised on strikes being bad generally will struggle to demonstrate uniqueness). The
only comment I’ll add here is that the affirmative is spoiled for choice in terms of fram‑
ing. The affirmative can argue that strikes are good for economic growth, for labor
rights, for reducing inequality, or any other type of impact that fits well under a utilitar‑
ian framework. But the affirmative can also use more philosophical or critical frames
like contractualism,²⁴ socialism,²⁵ democracy,²⁶ or any other number of different philo‑
sophical theories to advance their argument. This means that the affirmative can gain
some strong leverage against even narrow exceptions proposed by the negative by uti‑
lizing the power of their framing. I recommend that affirmatives begin digging into
different, non‑utilitarian frameworks to advance their arguments as they might offer
more strategic utility and allow affirmatives to take the debate to a question of different
philosophical principles (far more debatable than the actual question of the topic).
Instead, I’ll spend the bulk of the time focusing on dealing with the question of excep‑
tions. Several of the other topic analysis essays have offered some insights into how to
make such exceptions less potent threats, so I’ll try and avoid repeating what has been
previously been mentioned and instead offer a novel contribution.
Before we jump into those arguments, I want to distinguish between the two ways that
the negative’s “exceptions” argument can be deployed. The negative can either read
the “exceptions” argument as either a disadvantage (DA) or a plan‑inclusive counter‑
plan (PIC). If the negative reads the exceptions argument as a DA, they are arguing that
an unconditional right to strike is bad because it leads to some undesirable situation
in which a strike produces some unjustifiable cost. If the negative reads the exceptions
argument as a PIC, they are arguing that the right to strike is good in every instance
except in some narrow situation in which a strike produces some unjustifiable cost. The
difference is that in the latter scenario (reading exceptions as a PIC), the negative is
attempting to capture all the other benefits accrued by the affirmative advocacy—the
negative is saying that strikes are good in every instance but one or two. In the for‑
mer scenario (reading exceptions as a DA), the negative is not necessarily agreeing that
strikes are good in every other instance.
The key is that if the negative reads it as a DA, the affirmative can leverage the rest of
the case and weigh it against the impact to the DA; if the negative reads it as a PIC, the
affirmative loses the ability to easily leverage the rest of their case and weigh it against
²⁴https://link.springer.com/article/10.1007/s11158‑015‑9316‑8
²⁵https://jacobinmag.com/2021/02/us‑workers‑strike‑data‑2020
²⁶https://www.opendemocracy.net/en/opendemocracyuk/on‑striking‑and‑recognition‑that‑ethics‑are‑collective‑affair/
43
4 Topic Analysis by Lawrence Zhou
the PIC because the PIC itself scoops up the vast majority of the benefits accrued by the
affirmative advocacy. (It is precisely because PICs can solve 99% of the affirmative’s
arguments that makes “PICs bad” such a compelling theory objection.)
I suspect in most traditional rounds, the distinction doesn’t matter a ton as no negative
will explicitly claim to be reading a PIC (even though they will functionally be reading
it as such). However, the distinction is important because I think that if “exceptions”
is read as a DA, then the affirmative has a fighting chance—the affirmative can win the
debate if they win that strikes in general are good even if they are sometimes bad (e.g. in
the instance of the exception identified by the negative) and that we should tolerate
those instances of when a right to strike is misused because all the other positives of an
unconditional right to strike simply outweigh.
It’s when the exceptions are read as a PIC that the affirmative is in a much worse spot.
If the negative demonstrates that the right to strike is good in most instances but that
there should be one exception carved out, then the affirmative cannot win that strikes
in general are good as an answer to the PIC because the negative’s advocacy captures
those benefits as well. The negative will agree that other strikes are good, but just not
in this context.
This is where I think the affirmative needs to be the most prepared. Of course, the affir‑
mative needs good arguments for strikes good in general, but none of those arguments
are going to serve much strategic utility against the PIC. Rather, I think the affirmative
should dedicate a lot of time to proving that narrow exceptions fail. If the affirmative wins
that narrow exceptions will not remain narrow, that basically gets the affirmative back
to debating against the DA version of exceptions and gives them the ability to win that
the impacts from the affirmative’s case are more important than whatever the impact of
the exception is.
There are a few ways to do this. In general, I think the affirmative should be looking at
precedent and loopholes as the two main reasons why these narrow exceptions will not
remain narrow.
In the legal literature, a precedent is some principle established in a previous legal case
that informs what courts should do with subsequent cases with similar issues or facts.
The affirmative could argue that the grounds used to establish whatever exception the
negative proposes will be used (and abused) to expand the range of potential exceptions
until the “unconditional” nature of the right becomes meaningless. This sets the stage
for further legal exceptions to emerge, crushing the general power of threatening strikes.
44
4 Topic Analysis by Lawrence Zhou
The loopholes argument is similar but relies on the legal basis for the right and more
about how firms will interpret the exceptions. The affirmative could argue that what‑
ever exception is established by the negative will be exploited by employers to avoid
compliance with labor law and that the employers will have every incentive to declare
every strike as one of the ones that falls within the exception established by the counter‑
plan. Employers will interpret every exception as broadly as possible and use the threat
of retaliation to shut down even the threat of strikes until it becomes a de facto ban on
strikes.
Affirmative debaters should certainly seek out evidence to substantiate these arguments,
but I think it is probably more important to get a general grasp of the logic behind these
arguments as I suspect these will be some of the most powerful tools in the toolbox for
the affirmative against any negative debater who thinks they will instantly win merely
because they introduced an exception into the debate. Going for these arguments will
require some evidence but will require even more skill and practice in collapsing to
these arguments in the 2AR.
4.3 Negative Arguments
Like the other topic analysis essays, I will not spend much time exploring the negative
arguments because the negative literally needs to find just a few exceptions to when
there should be a right to strike and they will probably win. As long as the negative
doesn’t make a massive misstep when it comes to execution, I suspect that the negative
should win the vast majority of rounds (assuming relative parity in skill). I think the
negative just needs to dedicate some time to cutting some cards that say “unconditional
means unconditional” (to prevent tricky affirmatives from getting away with murder)
and writing out some sophisticated frontlines to the two deficits I mentioned above
(precedent and loopholes), and if the negative does so, I think they will be fine.
However, I want to make a brief comment on the exceptions point in the context of
more traditional rounds. While I don’t think the negative will be well‑suited to labeling
these exceptions as counterplans (a recipe for a quick loss in front of a large portion of
the judging pool), I think the negative merely needs to point out that the burden of the
affirmative is to prove that the right should be unconditional and that the burden of
the negative is merely to show that it is not unconditional. This, I think, avoids unnec‑
essarily muddling the waters with debate jargon and keeps the burdens clear for each
45
4 Topic Analysis by Lawrence Zhou
side.
4.4 Conclusion
Most of the time, November/December gets mediocre topics like the right to be
forgotten, development assistance, and fossil fuel subsidies.
Sometimes, Novem‑
ber/December gets fantastic topics like the federal jobs guarantee, qualified immunity
topic, and universal healthcare. However, November/December often gets some of
the worst topics, including that atrocious “right to know versus right to privacy” topic
from 2018. This seems like one of those atrocious topics.
I don’t understand why these bad topics get slotted to November/December which is
often the first set of topics that debaters in local circuits debate. Why does Septem‑
ber/October, a topic debated by far fewer debaters across the nation, often get topics
that are noticeably better? It’s baffling to me that a huge swath of debaters will start off
the season both online and debating what I think is a more or less undebatable topic.
Maybe I’ll be proven wrong and this topic will end up producing some high‑quality
debates. I sincerely doubt it. Unfortunately, it’s the topic we’re stuck with and we have
to make do with what we have. It’s doubly unfortunate because labor topics are often
neglected and I’d loved to have had a good debate about strikes. But this topic just ain’t
it.
Either way, good luck debating this (especially when you’re affirmative) and here’s hop‑
ing January/February will be better.
46
5 Evidence
5.1 General
5.1.1 Definition of Strike
A strike has three key aspects
Malebye 14
Cynthia Dithato Malebye (Department of Mercantile Law, University of Preto‑
ria).
“The Right to Strike in Respect of Employment Relationships and Col‑
lective Bargaining.”
Dissertation.
University of Pretoria, April 2014.
JDN.
https://repository.up.ac.za/bitstream/handle/2263/43163/Malebye_Right_2014.pdf?
sequence=1
The definition of a strike comprises of three elements, namely, non‑performance of
work, by employees and for a stated purpose. 71
47
5 Evidence
5.1.2 Strikes Include Partial Strikes
A strike can include partial slow‑downs
Malebye 14
Cynthia Dithato Malebye (Department of Mercantile Law, University of Preto‑
ria).
“The Right to Strike in Respect of Employment Relationships and Col‑
lective Bargaining.”
Dissertation.
University of Pretoria, April 2014.
JDN.
https://repository.up.ac.za/bitstream/handle/2263/43163/Malebye_Right_2014.pdf?
sequence=1
The refusal to work can be partial or complete. On this basis go‑slows have been held
to constitute a strike.72 A partial refusal means that employees perform some duties
but not others. The retardation of work is manifested in the so‑called go‑slows, where
employees continue to work but at a slower pace and the work‑to‑rule where employees
only do the work they are contractually obliged to do and no more. The obstruction of
work refers to the situation where the workers affect production in one way or another
by being obstructive.73 Other forms of industrial action that fall short of a total refusal
to work, such as blacking, could also constitute a strike. Overtime bans now count as
strikes whether or not the overtime in question is contractually obliged.74 Zondo AJ in
Simba (Pty) Ltd v Food & Allied Workers Union75 held that the word “work” in the
phrase “retardation of work” ... does not include work of an illegal nature. To hold
otherwise would be contrary to public policy and would sanction a contravention of
the BCEA.
48
5 Evidence
5.1.3 Strikes = Goal‑Directed
Refusal to work must have a defined purpose to constitute a strike
Malebye 14
Cynthia Dithato Malebye (Department of Mercantile Law, University of Preto‑
ria).
“The Right to Strike in Respect of Employment Relationships and Col‑
lective Bargaining.”
Dissertation.
University of Pretoria, April 2014.
JDN.
https://repository.up.ac.za/bitstream/handle/2263/43163/Malebye_Right_2014.pdf?
sequence=1
The employee in the strike definition includes both current and ex‑employees.76 The
right to strike is a collective action. An individual employee cannot take strike action.77
The purpose of a strike must be to remedy a grievance or to resolve a dispute. Where
employees had taken strike action demanding the dismissal or removal of a supervi‑
sor after giving an undertaking that they would report to the supervisor, following an
earlier dispute over the same issue, the Court held that through such an undertaking,
the employees had by implication abandoned their demand, thus rendering the strike
unprotected.78 If employees refuse to work, but are not seeking to remedy a grievance
or resolve a dispute, there is no strike in terms of the definition.79 A court must have
regard to substance rather than form and “ascertain the real underlying dispute”.80 The
purpose of industrial action determines whether it qualifies as a strike action. What be‑
gan as a strike can change its character once the initial purpose has fallen away. The
moment the strike ends so does statutory protection.81
49
5 Evidence
5.1.4 R2S = Legal Protection
“Right to strike” rather than “freedom to strike” implies that strikes are not just
legal but legally protected
Malebye 14
Cynthia Dithato Malebye (Department of Mercantile Law, University of Preto‑
ria).
“The Right to Strike in Respect of Employment Relationships and Col‑
lective Bargaining.”
Dissertation.
University of Pretoria, April 2014.
JDN.
https://repository.up.ac.za/bitstream/handle/2263/43163/Malebye_Right_2014.pdf?
sequence=1
Before the implementation of the new Constitution in South Africa, employees only
enjoyed the freedom to strike but not the right to strike. This past situation implied that
the employees who embarked on a strike, even if it was a legal strike were not protected
from dismissal as in effect they were in breach of their employment contracts in terms
of common law. A fundamental right contained in the Constitution is that workers will
have “the right to strike for purposes of collective bargaining.” In other words, the right
must be functional to collective bargaining.
50
5 Evidence
5.1.5 R2S is not Proportional
If striking must be balanced proportionally with other rights, it is not unconditional
Fabbrini 2012
Federico Fabbrini (PhD Researcher in the Law Department at the European
University Institute) “Europe in Need of a New Deal:
Market, and the Right to Strike.”
Vol.
43, 2012.
On Federalism, Free
Georgetown Journal of International Law,
JDN. https://www.iuscommune.eu/html/activities/2012/2012‑11‑
29/workshop5_Fabbrini.pdf
The most characteristic feature of the German regulatory model, however, is rep‑
resented by the so‑called principle of ultima ratio.
This principle represents the
application in the field of labor law of the general constitutional principle of Verhalt‑
nismaßigkeit, or proportionality.70 According to this principle, “a strike is only legal
if it is necessary and the ultimate measure to solve the industrial conflict.”71 As a
consequence, trade unions do not enjoy an unconditional right to pursue collective
action, even when, in their view, a strike would be the most effective tool to strengthen
their bargaining position. “In keeping with the principle of last resort, all possibilities of
a peaceful negotiation for settlement must have been exhausted” before a trade union
can go on strike.72 Labor courts are therefore empowered to assess the proportionality
of the industrial action undertaken by the trade unions and can sanction illegal strikes
by requiring offending trade unions to pay damages. Historically, industrial relations
between employees’ unions and employers’ associations have been very cooperative in
Germany, and this has kept industrial action to a minimum.73 Yet by permitting strikes
only when they are proportionate, German law designs a rather restrictive model of
regulation of the right to strike, which ensures wide protection for other constitutional
values, such as the right to property and freedom of commerce.74
51
5 Evidence
5.1.6 R2S is not Right to Quit
The right to strike is distinct from the right to quit
Gourevitch 16
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “Quit‑
ting Work but Not the Job: Liberty and the Right to Strike.” American Political Science
Association Vol. 14, No. 2. June 2016. JDN. https://www.cambridge.org/core/journals/
perspectives‑on‑politics/article/abs/quitting‑work‑but‑not‑the‑job‑liberty‑and‑the‑
right‑to‑strike/27B690FEDDBCF002FB20FB50E852D6A3
The right to strike is peculiar. It is not a right to quit. The right to quit is part of freedom
of contract and the mirror of employment‑at‑will. Workers may quit when they no
longer wish to work for an employer; employers may fire their employees when they
no longer want to employ them. Either of those acts severs the contractual relationship
and the two parties are no longer assumed to be in any relationship at all. The right
to strike, however, assumes the continuity of the very relationship that is suspended.
Workers on strike refuse to work but do not claim to have left the job. After all, the
whole point of a strike is that it is a collective work stoppage, not a collective quitting of
the job. This is the feature of the strike that has marked it out from other forms of social
action.
52
5 Evidence
5.1.7 R2S Improving
Respect for the right to strike has improved over time
Peetz 16
David Peetz (Professor of Employment Relations, Griffith Business School).
“In‑
dustrial action, the right to strike, ballots and the Fair Work Act in interna‑
tional context.”
Australian Journal of Labour Law.
2016.
JDN. https://research‑
repository.griffith.edu.au/bitstream/handle/10072/380625/PeetzPUB6698.pdf?sequence=1
We first examine the international context of trends in the right to strike. Figure 1 shows
the unweighted ‘right to strike’ index — the average score across 49 countries in the
Visser database — in the market sector for each country in the database in each year
from 1960 to 2011. Some small movements from 1 year to the next should be disregarded,
because they typically reflect the addition of new countries to the database; likewise, the
seemingly sharp upturn in 2013 should be ignored, as that just reflects a missing data
effects (the number of observations changes from 45 in 1960 to 49 over 1994–2010, and
then 32 in 2011). However, what cannot be ignored is the general upward trend in the
average scores, suggesting an overall improvement in levels of respect for the right to
strike.
The right‑to‑strike index shows stability or improvement in most countries
Peetz 16
David Peetz (Professor of Employment Relations, Griffith Business School).
“In‑
dustrial action, the right to strike, ballots and the Fair Work Act in interna‑
tional context.”
Australian Journal of Labour Law.
2016.
JDN. https://research‑
repository.griffith.edu.au/bitstream/handle/10072/380625/PeetzPUB6698.pdf?sequence=1
Table 3 shows that, between around 1960 and 2010, 18 out of 48 countries recorded an
improvement in the right to strike, only three recorded a decline over that period. It also
shows that, over the final 16 years (from 1994 to 2010) there was considerable stability
in the index, with only four countries recording an improvement in the right to strike
and two recording a decline. We must remember the limitations. Many ‘small’ changes
in laws would not be evident in this dataset; nor would changes in administrative be‑
haviour. Still, most countries had no change in strike law scores between 1960 and 2010.
53
5 Evidence
In the majority of countries that showed improvements in the score, this was associ‑
ated with regime change in Eastern Europe — in particular, improvements in Bulgaria,
the Czech Republic, Estonia, Hungary, Latvia, Poland, Romania, Russia, Slovenia and
Slovakia. However, there were also several other discrete national‑level changes, unre‑
lated to the fall of the Berlin Wall, and mostly these were upwards: in Spain, Indonesia,
Korea, Malta, Netherlands, New Zealand (in 1984), Portugal and South Africa. Only
three countries recorded declines: Australia, Malaysia and Singapore. Most of these
movements occurred before 1994, after which there were high levels of stability. What
observations should be made about this broad international comparison? First, despite
the neoliberal ‘revolution’, and the general weakening of labour that has accompanied
it (evidenced, for example, by declining union density),36 there has been no major in‑
ternational trend towards restricting the right to strike. If anything, the reverse was the
case — though there was mostly stability in the ‘right to strike’ index.
54
5 Evidence
5.2 Affirmative Evidence
5.2.1 Harm Principle
Governments cannot justly impede the voluntary right to strike
Mill 1848
John Stuart Mill (English philosopher and Member of Parliament). “Principles of Politi‑
cal Economy with some of their Applications to Social Philosophy.” Book V, Chapter X.
(London: John W. Parker, West Strand) 1848. https://www.econlib.org/library/Mill/mlP.
html?chapter_num=75#book‑reader
It is a great error to condemn, per se and absolutely, either trade unions or the collective
action of strikes. Even assuming that a strike must inevitably fail whenever it attempts
to raise wages above that market rate which is fixed by the demand and supply; de‑
mand and supply are not physical agencies, which thrust a given amount of wages into
a labourer’s hand without the participation of his own will and actions. The market
rate is not fixed for him by some self‑acting instrument, but is the result of bargaining
between human beings—of what Adam Smith calls “the higgling of the market;” and
those who do not “higgle” will long continue to pay, even over a counter, more than the
market price for their purchases. Still more might poor labourers who have to do with
rich employers, remain long without the amount of wages which the demand for their
labour would justify, unless, in vernacular phrase, they stood‑out for it, and how can
they stand out for terms without organized concert? What chance would any labourer
have, who struck singly for an advance of wages? How could he even know whether
the state of the market admitted of a rise, except by consultation with his fellows, natu‑
rally leading to concerted action? I do not hesitate to say that associations of labourers,
of a nature similar to trades unions, far from being a hindrance to a free market for
labour, are the necessary instrumentality of that free market; the indispensable means
of enabling the sellers of labour to take due care of their own interests under a system
of competition. There is an ulterior consideration of much importance, to which atten‑
tion was for the first time drawn by Professor Fawcett, in an article in the Westminster
Review. Experience has at length enabled the more intelligent trade to take a tolerably
correct measure of the circumstances on which the success of a strike for an advance of
wages depends. The workmen are now nearly as well informed as the master, of the
state of the market for his commodities; they can calculate his gains and his expenses,
they know when his trade is or is not prosperous, and only when it is, are they ever
55
5 Evidence
again likely to strike for higher wages; which wages their known readiness to strike
makes their employers for the most part willing, in that case, to concede. The tendency,
therefore, of this state of things is to make a rise of wages in any particular trade usually
consequent upon a rise of profits, which, as Mr. Fawcett observes, is a commencement
of that regular participation of the labourers in the profits derived from their labour, ev‑
ery tendency to which, for the reasons stated in a previous chapter, it is so important to
encourage, since to it we have chiefly to look for any radical improvement in the social
and economical relations between labour and capital. Strikes, therefore, and the trade
societies which render strikes possible, are for these various reasons not a mischievous,
but on the contrary, a valuable part of the existing machinery of society.
It is, however, an indispensable condition of tolerating combinations, that they should
be voluntary. No severity, necessary to the purpose, is too great to be employed against
attempts to compel workmen to join a union, or take part in a strike by threats or vi‑
olence. Mere moral compulsion, by the expression of opinion, the law ought not to
interfere with; it belongs to more enlightened opinion to restrain it, by rectifying the
moral sentiments of the people. Other questions arise when the combination, being vol‑
untary, proposes to itself objects really contrary to the public good. High wages and
short hours are generally good objects, or, at all events, may be so: but in many trades
unions, it is among the rules that there shall be no task work, or no difference of pay be‑
tween the most expert workmen and the most unskilful, or that no member of the union
shall earn more than a certain sum per week, in order that there may be more employ‑
ment for the rest; and the abolition of piece work, under more or less of modification,
held a conspicuous place among the demands of the Amalgamated Society. These are
combinations to effect objects which are pernicious. Their success, even when only par‑
tial, is a public mischief; and were it complete, would be equal in magnitude to almost
any of the evils arising from bad economical legislation. Hardly anything worse can be
said of the worst laws on the subject of industry and its remuneration, consistent with
the personal freedom of the labourer, than that they place the energetic and the idle, the
skilful and the incompetent, on a level: and this, in so far as it is in itself possible, it is
the direct tendency of the regulations of these unions to do.
It does not, however, follow as a consequence that the law would be warranted in mak‑
ing the formation of such associations illegal and punishable. Independently of all con‑
siderations of constitutional liberty, the best interests of the human race imperatively re‑
quire that all economical experiments, voluntarily undertaken, should have the fullest
licence, and that force and fraud should be the only means of attempting to benefit
56
5 Evidence
themselves, which are interdicted to the less fortunate classes of the community.
57
5 Evidence
5.2.2 Liberty
Strikes express fundamental rights
Lim 19
Woojin Lim (Editor for the Harvard Crimson). “The Right to Strike.” The Harvard
Crimson. 11 December 2019. JDN. https://www.thecrimson.com/article/2019/12/11/lim‑
right‑to‑strike/
Strikes are not only a means of demanding and achieving an adequate provision of
basic liberties but also are themselves intrinsic, self‑determined expressions of freedom
and human rights. The exercise of the power to strike affirms a quintessential corpus
of values akin to liberal democracies, notably those of dignity, liberty, and autonomy.
In acts of collective defiance, strikers assert their freedoms of speech, association, and
assembly. Acts of striking, marching, and picketing command the attention of the media
and prompt public forums of discussion and dialogue.
The question of civic obligations, however, remains at stake. Perhaps those disgruntled
with the strike might claim on a whiff that the strike impedes upon their own freedom of
movement, educational rights, privacy, and so forth. Do strikers, in virtue of expressing
their own freedoms, shirk valid civic norms of reciprocity they owe to members of the
community, for instance, to students? No. The right to strike stems from the premise of
an unjust flaw in the social order, that is, the recognition that the benefits from shoul‑
dering the burdens of social cooperation are not fairly distributed. Strikes and protests
publicize this recognition and demand reform.
58
5 Evidence
5.2.3 Freedom of Association
The right to strike follows from freedom of association
Malebye 14
Cynthia Dithato Malebye (Department of Mercantile Law, University of Preto‑
ria).
“The Right to Strike in Respect of Employment Relationships and Col‑
lective Bargaining.”
Dissertation.
University of Pretoria, April 2014.
JDN.
https://repository.up.ac.za/bitstream/handle/2263/43163/Malebye_Right_2014.pdf?
sequence=1
Freedom of association is a universal human right. It gives rise to the establishment
of democratic institutions such as trade unions which promote democracy, both in the
workplace and in society at large.54 Employees have the freedom to associate for the pur‑
pose of collective bargaining.55 Freedom of association provides a basis for employees
to inter alia form and join a trade union. A legal scheme aimed at protecting employees’
and their unions’ right to bargain collectively with their employer will be meaningless
if the underlying right to first belong to that union were not safeguarded.56 Conversely,
freedom of association would remain an ineffective right if the right to bargain collec‑
tively and the right to strike were not recognised as well. These rights have the balancing
of the unequal bargaining position of employees and employers in common. For this
reason it is often accepted that the right to strike, for example, must be inferred from the
right to associate freely, even though the right to strike is not explicitly mentioned.57
59
5 Evidence
5.2.4 Oppression
The right to strike is a protection against oppressive systems
Lim 19
Woojin Lim (Editor for the Harvard Crimson). “The Right to Strike.” The Harvard
Crimson. 11 December 2019. JDN. https://www.thecrimson.com/article/2019/12/11/lim‑
right‑to‑strike/
The right to strike is a right to resist oppression. The strike (and the credible threat
of a strike) is an indispensable part of the collective bargaining procedure. Collective
bargaining (or “agreement‑making”) provides workers and employees with the oppor‑
tunity to influence the establishment of workplace rules that govern a large portion
of their lives. The concerted withdrawal of labor allows workers to promote and de‑
fend their unprotected economic and social interests from employers’ unilateral deci‑
sions, and provide employers with pressure and incentives to make reasonable conces‑
sions. Functionally, strikes provide workers with the bargaining power to drive fair
and meaningful negotiations, offsetting the inherent inequalities of bargaining power
in the employer‑employee relationship. The right to strike is essential in preserving and
winning rights. Any curtailment of this right involves the risk of weakening the very
basis of collective bargaining.
The right to strike challenges the oppression inherent to the class system
Gourevitch 18
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “The
Right to Strike: A Radical View.” American Political Science Review, Volume 112,
Issue 4, November 2018, pp. 905 – 917. JDN. https://www.cambridge.org/core/journals/
american‑political‑science‑review/article/abs/right‑to‑strike‑a‑radical‑view/8B521F67E
28D4FAE1967B17959620424
To explain why the right to strike is a right to resist oppression, I first must give an ac‑
count of the relevant oppression. Oppression is the unjustifiable deprivation of freedom.
Some deprivations or restrictions of freedom are justified and therefore do not count as
oppression. The oppression that matters for this article is the class‑based oppression of
a typical liberal capitalist society. By the class‑based oppression, I mean the fact that
the majority of able‑bodied people find themselves forced to work for members of a
60
5 Evidence
relatively small group who dominate control over productive assets and who, thereby,
enjoy unjustifiable control over the activities and products of those workers. There are
workers and then there are owners and their managers. The facts I refer to here are
mostly drawn from the United States to keep a consistent description of a specific soci‑
ety. While there is meaningful variation across liberal capitalist nations, the basic facts
of class‑based oppression do not change in a way that vitiates my argument’s applica‑
bility to those countries too. Empirical analysis of each country to which the argument
applies, and how it would apply, is a separate project.
The first element of oppression in a class society resides in the fact that (a) there are some
who are forced into the labor market while others are not and (b) those who are forced
to work—workers—have to work for those who own productive resources. Workers
are forced into the labor market because they have no reasonable alternative but to find
a job.8 They cannot produce necessary goods for themselves, nor can they rely on the
charity of others, nor can they count on adequate state benefits. The only way most
people can gain reliable access to necessary goods is by buying them. The most reliable,
often only, way most people have of acquiring enough money to buy those goods is
through employment. That is the sense in which they have no reasonable alternative
but to find a job working for an employer. Depending on how we measure income and
wealth, about 60–80% of Americans are in this situation for most of their adult lives.9
This forcing is not symmetrical. A significant minority is not similarly forced to work for
someone else, though they might do so freely. That minority has enough wealth, either
inherited or accumulated or both, that they have a reasonable alternative to entering the
labor market. So, this first dimension of oppression comes not from the fact that some
are forced to work, but from the fact that the forcing is unequal and that asymmetry
means some are forced to work for others.10 That is to say, what makes it oppressive is
the wrong of unequally forcing the majority to work, for whatever purpose, while others
face no such forcing at all.11 That way of organizing and distributing coercive work
obligations, and of imposing certain kinds of forcing on workers, is an unjustifiable way
of limiting their freedom and therefore oppressive. To fix ideas, I call this the structural
element of oppression in class societies.
61
5 Evidence
5.2.5 Non‑Domination
The workplace is a site of domination
Gourevitch 16
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “Quit‑
ting Work but Not the Job: Liberty and the Right to Strike.” American Political Science
Association Vol. 14, No. 2. June 2016. JDN. https://www.cambridge.org/core/journals/
perspectives‑on‑politics/article/abs/quitting‑work‑but‑not‑the‑job‑liberty‑and‑the‑
right‑to‑strike/27B690FEDDBCF002FB20FB50E852D6A3
Strikes are ways of resisting structural domination at its most immediate, concrete
point—the job. But that is only one aspect of the unfreedom that produces strikes. The
other arises from personal domination in the workplace itself. Most modern work is
a continuous, coordinated activity of workers in a workplace. This coordination is
only possible through a system of authoritative decisions and standards that cover the
complex, ongoing, everchanging set of workplace activities. Here we meet the second
way in which a contract‑based social theory is not up to the task of giving an adequate
account of the actual relationships in which workers find themselves. Though there
are attempts to explain and justify the arbitrary authority that employers possess by
reference to the labor contract, these fail, leaving an analytic and moral void. The
view of the workplace as a product of private contracts makes it difficult even to grasp
the political structure of the workplace itself, let alone understand the range of issues
against which workers might strike when resisting an employer’s arbitrary authority.62
A workplace is a site of personal domination because workers are subject to the arbitrary
authority of bosses. The bosses’ authority is arbitrary because it is not sufficiently con‑
trolled by workers. The ruling legal and social assumption is that decisions about how
to run the workplace are up to employers and their managers. Workers are expected
simply to obey. In American law, this is enshrined as the “core of entrepreneurial con‑
trol” regarding hiring and firing, work schedules, design of tasks, introduction of new
technology and the like—and they extend to prerogatives of capital regarding purchase
of goods, plant location, and other investment‑related decisions.63 A general set of of‑
ten poorly‑enforced labor laws establish specific reservations against what an employer
may order workers to do or require them to accept. But the very fact that these are
specific reservations only reinforces the fact that the assumption is one of dependence
on the arbitrary will of managers and owners. For examples, consider the fact that in
62
5 Evidence
many states employers have been within their rights when firing workers for comments
they made on Facebook, for their sexual orientation, for being too sexually appealing,
or for not being appealing enough.64 Workers face being given more tasks than can be
performed in the allotted time, being locked in the workplace overnight, being forced
to work in extreme heat or physically hazardous but not illegal conditions, or being ar‑
bitrarily isolated from the rest of one’s coworkers.65 Some workers are forced to wear
diapers rather than go to the bathroom, are refused lunch breaks or pressured to work
through them, are forced to keep working after their shift is up, are denied the right to
read or turn on air conditioning during break, or are forced to take random drug tests
and to perform other humiliating or irrelevant actions.66 Notably, in these cases and
in many others, the law protects the employer’s right to make these decisions without
consulting workers and to fire them if they refuse.
Labor relations can function as forms of domination
Gourevitch 16
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “Quit‑
ting Work but Not the Job: Liberty and the Right to Strike.” American Political Science
Association Vol. 14, No. 2. June 2016. JDN. https://www.cambridge.org/core/journals/
perspectives‑on‑politics/article/abs/quitting‑work‑but‑not‑the‑job‑liberty‑and‑the‑
right‑to‑strike/27B690FEDDBCF002FB20FB50E852D6A3
So long as we view the labor market as a series of voluntary agreements to which work‑
ers and employers freely consent, we cannot make adequate sense of the right to strike.
There are two interconnected forms of compulsion to which workers are subject that
undermine any such view. Drawing on what has become known as the republican the‑
ory of freedom, I propose that we see these interconnected compulsions as forms of
“domination” where domination means being subject to the uncontrolled or arbitrary
power of another.44 On this view, I am subject to another person’s will if that person
has the capacity to interfere with me, even if he does not actually interfere. The dom‑
inator might be benevolent or malicious, but in either case, he dominates because he
can interfere in an uncontrolled way. That is what distinguishes the republican posi‑
tion from the more common, liberal view of freedom as non‑interference, where I am
unfree only if someone actually interferes with my choices. Philip Pettit, who has done
more than anyone to promote and develops this neo‑republican theory, tends to take
the view that structural domination does not exist because to be dominated means that
63
5 Evidence
one person is directly subject to another person’s will.45 One employer might dominate
an employee, simply by having the power to harass or interfere with her, but a group of
individuals cannot, in themselves, be dominated nor can a background distribution of
property be dominating. As Pettit puts it, “the property system ... will not be a source
of domination so far as it is the cumulative, unintended effect of people’s mutual ad‑
justments.” 46 However, as I and others have argued elsewhere, given both the history
of republican thinking and the inner logic of the theory of freedom, there is no special
reason to restrict the concept of domination to only interpersonal relations. Individuals
can be dominated in a more structural way, by the distribution of property or by general
features of a labor market that involve submission in a more anonymous or impersonal
way. There are various kinds of economic dependence that subject some individuals to
the uncontrolled power of others.47 Here we shall encounter just this kind of structural
domination.
The concept of domination is useful for my argument because it illuminates certain re‑
lations of power and helps explain the sense in which the right to strike emerges out
of a demand for freedom, not just for higher wages or safer conditions, though those
substantive concerns are always also in play.48 However, while I believe the republican
theory is particularly useful, even those who doubt its value as a concept still ought to
be persuaded by my argument for the right to strike. Although I cannot get into all the
reasons why, the principle reason is the following. The background argument for the
right to strike is that it is a remedial response to the substantial economic injustice that
these compulsions entail. While I make sense of that injustice in terms of the nature and
distribution of domination, a fellow‑traveling reader could make sense of this injustice
by using other conceptions of injustice and unfreedom. In that case, the right to strike
would be adequately justified to them as a demand for freedom against unjustifiable
denials of that freedom. That is all I can say about that issue here. Let us proceed, then,
to the social analysis.
Low wage workers are most at risk of domination
Gourevitch 18
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “The
Right to Strike: A Radical View.” American Political Science Review, Volume 112,
Issue 4, November 2018, pp. 905 – 917. JDN. https://www.cambridge.org/core/journals/
american‑political‑science‑review/article/abs/right‑to‑strike‑a‑radical‑view/8B521F67E
64
5 Evidence
28D4FAE1967B17959620424
Here are some general facts about strikes and labor markets that present liberal societies
with a dilemma. A strike is a work stoppage to achieve some end. Higher skilled, low‑
supply workers, who usually enjoy better wages, hours and conditions, can carry off a
reasonably effective strike with little coercion and no significant lawbreaking.2 That is
because they are hard to replace. So long as they exercise adequate discipline, workers
will have a reasonable chance of succeeding if they refuse to work. Production slows
or stops altogether. For instance, during the Verizon strike of 2016, Verizon used many
replacement workers, as it was their legal right to do, but those replacements could
not do the job effectively. Installing, servicing, and repairing copper wire and FIOS
systems turned out to require weeks of training and further on‑the‑job experience. After
seven weeks, the company still was unable to service existing lines, let alone install new
ones. Exercising a great deal of discipline and commitment, but no coercion or violence
against replacements or managers, the Verizon workers slowed production enough to
win concessions (Gourevitch 2016b).
However, low‑skill, high labor supply workers in sectors like service, transportation,
agriculture, and basic industry are in a different situation. These kinds of workers, in
part because they are in such high supply, tend to have less bargaining power and there‑
fore usually enjoy lower wages, longer hours, and worse working conditions.3 On top
of which, they are more vulnerable to forms of illegal pressure. For instance, consider
the problem of wage theft, where employers fail to pay the full wages and benefits that
workers are legally due. Wage theft is almost exclusively a problem affecting low‑wage
workers, 64% of whom experience it weekly and who on average lose 15% of their in‑
come each year to their employers (Judson and Francisco‑McGuire 2012). These work‑
ers already earn incomes not far from the poverty line. They are therefore the ones we
intuitively think should have the strongest case for a right to strike. Yet, even if all of
the current workers walk off and respect the picket, replacements are much easier to
find, train, and put to work. So workers might refuse to work but, once replaced, they
will have little chance of slowing or stopping production. For example, this is one of the
challenges facing workers like Walmart or McDonald’s workers who have done single‑
day strikes for demonstration and protest purposes, but have not struck long enough to
be replaced.4
What this means is that the majority of workers, who are relatively easy to replace, of‑
ten have to use some coercive tactics if they want to go on strike with some reasonable
chance of success. These tactics either prevent managers from hiring replacements, pre‑
65
5 Evidence
vent replacements from taking struck jobs, or otherwise prevent work from getting done.
The classic coercive tactics are sit‑downs and mass pickets.5 Sit‑down strikes involve oc‑
cupying the workplace so that no work can be done. Mass pickets are when strikers and
their supporters surround a workplace with a wall of picketers so that no people or sup‑
plies can get in or out. For the majority of relatively easy to replace workers to go on
strike with some reasonable chance of success they have to use one of these coercive
tactics.6
66
5 Evidence
5.2.6 R2S Resists Domination
The right to strike is a means of resisting domination
Gourevitch 16
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “Quit‑
ting Work but Not the Job: Liberty and the Right to Strike.” American Political Science
Association Vol. 14, No. 2. June 2016. JDN. https://www.cambridge.org/core/journals/
perspectives‑on‑politics/article/abs/quitting‑work‑but‑not‑the‑job‑liberty‑and‑the‑
right‑to‑strike/27B690FEDDBCF002FB20FB50E852D6A3
We now have a way of explaining the right to strike as something decidedly more mod‑
ern than just residual protection of some feudal guild privilege. The right to strike
springs organically from the fact of structural domination. Striking is a way of resist‑
ing that domination at the point in that structure at which workers find themselves—the
particular job they are bargaining over. It is not that workers believe they have some spe‑
cial privilege but quite the opposite. It is their lack of privilege, their vulnerability, that
generates the claim. Structural domination makes its most immediate appearance in the
threat of being exploited by a particular employer, even though the point of structural
domination is that workers can be exploited by any potential employer. The sharpest
form that the structural domination takes is through the threat of being fired, or of never
being hired in the first place. The claim that strikers make to their job is therefore, in
the first instance, a dramatization of the fact that their relationship is not voluntary, it
is not accidental and contingent. They are always already forced to be in a contractual
relationship with some employer or another. The refusal to perform work while retain‑
ing the right to the job is a way of bringing to the fore this social and structural element
in their condition. It vivifies the real nature of the production relationship that workers
find themselves in. Quitting the work but not the job is a way of saying that this society
is not and cannot be just a system of voluntary exchanges among independent produc‑
ers. There is an underlying structure of unequal dependence, maintained through the
system of contracts, that even the “most voluntary” arrangements conceal.
This is not just a dramaturgical fact about strikes, though the drama has, in many cases,
been nearly Greek in its intensity and tragedy. It is a point about power. It would not
have the drama if it were not a power play. By demanding the job as a matter of right
workers do not just publicize their domination, they attempt to challenge the forcing to
which they are subject. Limiting the employer’s ability to make contracts with others,
67
5 Evidence
and preventing other workers from taking those jobs, is a way of reversing the power
relationship. It is a way of neutralizing the threat of losing the job, which is the most
concrete, immediate point of contact with that background structure of domination. If
you cannot lose your job, you are less vulnerable, less immediately economically de‑
pendent. Of course, this does not do away with the background structure itself, but a
particular strike can never do that. Though even here, there are times when a strike,
as it becomes a more generalized rejection of structural domination—say in large‑scale
sympathy strikes or general strikes—can begin to challenge the broad structure of eco‑
nomic control itself.60 This is a challenge to the logic of the capitalist labor market that
begins from within, at the location of the strike itself. At that point in the system, strikers
temporarily reverse the relationships of power by eliminating that employers’ ability to
use the threat of job loss against them.
They do that not just by claiming the job but by claiming it as a matter of right. The
thought is that the exploitation of workers is unjustifiable, an unjustifiability that ap‑
pears in the terms of the employment itself. Workers have the right to the job, and
therefore to interfere with the employer’s property rights and other workers’ contract
rights, because it is unjustifiable to subject workers to exploitative conditions. To be
sure, many strikes and many strikers never articulate the argument in this language.
But the point is not what workers always explicitly say, but rather what they do and
what that doing presupposes. I am reconstructing the ideal presuppositions of a strike,
and in particular, how to think about the peculiar set of assumptions about the right to
a job. We have seen that it is no atavistic recovery of traditional rights and guild priv‑
ileges but is a way of resisting a thoroughly modern form of social domination from a
point within that structure of domination. Again, facing a freedom to quit the job but
not the work, workers assert a right to quit working but keep the job.
To put this all another way, though strikes are still about bargaining, and in that sense
like market exchanges, they are simultaneously a challenge to the market as the appro‑
priate standard by which to judge the fairness of workers’ compensation. The market is
unfair because of workers’ structural disadvantage. Over and against the market value,
strikers can argue that there are shared, or at least shareable, standards of fair compen‑
sation that employers should adhere to. While here again we see the echoes of feudal
theories of “just price” and equity jurisprudence,61 we must note that in principle the
claim is not, or does not have to be, based on special privilege. Rather, it begins by chal‑
lenging the view that labor “freely” finds its value on the market. Workers are always
already in relationships with employers and they cannot leave the basic relationship
68
5 Evidence
of earning money only by selling laborpower, no matter how many jobs they might
quit. The standards we use for evaluating those kinds of forced relationships, like the
state, are different, based on shared conceptions of justice and human need, not private
agreement.
Only a radical right to strike can address fundamental injustices
Gourevitch 18
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “The
Right to Strike: A Radical View.” American Political Science Review, Volume 112,
Issue 4, November 2018, pp. 905 – 917. JDN. https://www.cambridge.org/core/journals/
american‑political‑science‑review/article/abs/right‑to‑strike‑a‑radical‑view/8B521F67E
28D4FAE1967B17959620424
The radical view has a number of advantages over the liberal and social democratic ac‑
counts. First and foremost, it is a more adequate response to the facts of oppression
in actually existing liberal economies. Where the liberal view recognizes no particular
injustice, and the social democratic view focuses primarily on inequalities of bargaining
power, the radical view is based on the social analysis sketched in the second section of
this article. That social analysis identifies the full range of oppressions, and their inter‑
locking character, that are typical of actually existing class‑divided liberal societies. That
is why I call this view radical: not for the sectarian frisson sometimes associated with
that word but because radical means going to the root of a problem. Second, the radical
view goes to the root not just because it properly identifies all of the relevant facts, but
because it thereby more accurately identifies the kind of interest that the right to strike
is supposed to protect. It identifies the guiding interest of the right not as an interest
(only) in creating fair contracts or in distributive justice narrowly conceived but, rather,
as an interest in claiming freedom against its illegitimate limitation. Workers have an
interest in not facing certain kinds of coercive restraints against their access to property,
in not being subject to unfair ways of forcing them to work, in not being required to
accept various kinds of labor contracts, and in not being dominated in the workplace.
These are elements of the same interest that workers have in self‑determination, or in
enjoying those liberties that allow them to have the personal and political autonomy
they ought to. This is the full sense in which the radical view is more responsive to the
facts of oppression than other accounts. This further means that the radical argument
is compatible with, or at least in the neighborhood of, any number of egalitarian theo‑
69
5 Evidence
ries of justice—such as those arguing for property‑owning democracy or for workplace
democracy and free time32—that are concerned with these wider forms of unfreedom.
It is, for the same reason, compatible with a wide range of socialist and other left‑wing
criticisms of power and unfreedom in capitalist workplaces (e.g., Arnold 2017; Ezorsky
2007;Weeks 2011).
It supersedes other civil liberties
Gourevitch 18
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “The
Right to Strike: A Radical View.” American Political Science Review, Volume 112,
Issue 4, November 2018, pp. 905 – 917. JDN. https://www.cambridge.org/core/journals/
american‑political‑science‑review/article/abs/right‑to‑strike‑a‑radical‑view/8B521F67E
28D4FAE1967B17959620424
The third virtue of the radical approach is that it gives a distinct explanation for the
shape of the right to strike. Recall that the liberal and the social democratic approaches
can have a tendency to explain the shape of that right by reference either to (a) the basic
liberties of actual liberal societies, or (b) the liberties one enjoys in an ideal constitution,
or (c) through a mixture of both arguments. That form of reasoning imparts a particular
shape to the right: it must respect the basic liberties with which it comes in conflict. On
the best version of the social democratic view, that methodological error is avoided.But
it is present in any version of the argument in which the shape of the legal right to strike
one ought to enjoy is the same as or similar to the right workers exercise when suffering
economic injustice. But on the right to resist oppression view, the shape of the right is
explained exclusively by reference to the liberty interest it is supposed to protect under
conditions of oppression. The right is justified instrumentally, by reference to the fact
that strikes are generally effective means for resisting the oppression to which workers
are subject. And, further, the right is justified by reference to the interest workers have
in using their own collective power to reduce and resist that oppression. Under condi‑
tions of oppression, that use of collective power is one of the primary ways workers can
give expression to the demand for self‑determination. But that aspect of the justifica‑
tion also depends upon strikes being generally effective means for resisting oppression,
since otherwise they would just be collective acts of self‑delusion or symbolic gestures
of resistance but not acts self‑determination. For that to be the case, the right to strike
must include the use of at least some of the means that make strikes effective for those
70
5 Evidence
subject to oppression. That the right comprises permissions to use some effective means
is a defining feature of the radical argument. After all, for the right to strike to protect
the interest that justifies it, it must be shaped in ways that permit the right’s exercise
in ways that actually protect that interest. That follows directly from the liberty‑based
justification of the right. So, on this account, there would be no strict prohibition on the
use of coercive strike tactics like sit‑downs and mass pickets.33
A fourth virtue of the radical approach follows from the third. If the radical right to
strike does not contain, internal to its justification, the same restraints on the means
strikers may use, there is still the question of why the right to strike would have moral
priority over other basic liberties in the case of labor disputes. On the radical view, the
important point is not just that there is economic oppression but that the economic op‑
pression that workers faced is in part created and sustained by the legal articulation
and protection of those basic economic and civil liberties. Workers find themselves op‑
pressed because of the way property rights, contractual liberties, corporate authority,
tax and labor law create and maintain that oppression. If that is the case, then the nor‑
mal justification of those liberties, which is supposed to establish their ‘basicness’ and
thus priority is weak. Their priority is normally explained by the thought that, ide‑
ally speaking, the protection of those liberties creates more or less non‑oppressive, non‑
exploitative relations of social cooperation.34 In reality, their legal protection achieves
the opposite. Meanwhile, the right to strike, as a way of reducing that oppression has a
stronger claim to be protecting a zone of activity that actually serves the aims of justice
itself—of coercing people into relations of less oppressive social cooperation. That is
why the right to strike would have priority over some of these basic economic and civil
liberties, like property rights, freedom of contract, and freedom of association.
A radical right to strike offers the most expansive form of protection to workers
Gourevitch 18
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “The
Right to Strike: A Radical View.” American Political Science Review, Volume 112,
Issue 4, November 2018, pp. 905 – 917. JDN. https://www.cambridge.org/core/journals/
american‑political‑science‑review/article/abs/right‑to‑strike‑a‑radical‑view/8B521F67E
28D4FAE1967B17959620424
There is more than one way to justify the right to strike and, in so doing, to explain the
shape that right ought to have. As we shall see, there is the liberal, the social‑democratic,
71
5 Evidence
and the radical account. Any justification of a right must give an account not just of the
interest it protects but of how that right is shaped to protect that interest. In the case
of the radical argument for the right to strike, which I will defend against the other
two conceptions, the relevant human interest is liberty. Workers have an interest in
resisting the oppression of class society by using their collective power to reduce that
oppression. Their interest is a liberty interest in a double sense. First, it is an interest in
not being oppressed, or in not facing certain kinds of forcing, coercion, and subjection
to authority that they shouldn’t have to.Any resistance to those kinds of unjustified
limitations of freedom carries with it, at least implicitly, a demand for liberties not yet
enjoyed.19 That is a demand for a control over portions of one’s life that one does not
yet enjoy. Second, and consequently, the right to strike is grounded in an interest in
using one’s own individual and collective agency to resist—or even overcome— that
oppression. The interest in using one’s own agency to resist oppression flows naturally
from the demand for liberties not yet enjoyed. After all, that demand for control is in
the name of giving proper space to workers’ capacity for self‑determination, which is
the same capacity that expresses itself in the activity of striking for greater freedom.
On this radical view, the right to strike has both an intrinsic and instrumental relation
to liberty. It has intrinsic value as an (at least implicit) demand for self‑emancipation
or the winning of greater liberty through one’s own efforts. It has instrumental value
insofar as the strike is on the whole an effective means for resisting the oppressiveness of
a class society. For the right to strike to enjoy its proper connection to liberty, workers
must have a reasonable chance of carrying out an effective strike, otherwise it would
lose its instrumental value as a way of resisting oppression. If prevented from using a
reasonable array of effective means, exercising the right to strike would not be a means
of reducing oppression and, therefore, strikes would also be of very limited value as acts
of self‑emancipation. It would not be an instance of workers attempting to use their own
capacity for self‑determination to increase the control they ought to have over the terms
of their daily activity.
To grasp what makes this radical view distinctive, let us compare it with two other con‑
ceptions of the right to strike: the liberal and the social‑democratic. These two other
accounts are internally coherent. But they are deficient in at least one, potentially two,
ways. The first deficiency is substantive. The liberal and social‑democratic accounts fail
to properly identify the nature, depth, and scope of the class‑based oppression in exist‑
ing capitalist societies. This means their justification of the right to strike is improperly
narrow or otherwise constrained in ways it ought not to be.
72
5 Evidence
A radical right to strike is justified given the non‑ideal conditions of the labor
market
Gourevitch 16
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “Quit‑
ting Work but Not the Job: Liberty and the Right to Strike.” American Political Science
Association Vol. 14, No. 2. June 2016. JDN. https://www.cambridge.org/core/journals/
perspectives‑on‑politics/article/abs/quitting‑work‑but‑not‑the‑job‑liberty‑and‑the‑
right‑to‑strike/27B690FEDDBCF002FB20FB50E852D6A3
My central purpose is to develop an argument for the right to strike and in so doing to
show how recent developments in political philosophy around concepts like domina‑
tion and freedom can enrich our thinking about labor rights.14 While basically a nor‑
mative argument, this is not an argument from what is sometimes called ideal theory.
The procedure here is not to imagine the best regime and derive the right to strike from
features of that regime—quite the opposite. It would, in fact, be hard to understand just
why the strike protects a fundamental interest in non‑domination if we began from per‑
fectly just conditions. As we shall see, we can only make sense of the right to strike—of
the interests it protects, of its scope, of the role it plays in our moral reasoning—against
the background of injustice. Those unjust conditions of domination explain the right to
strike. I make no general claims about the superiority of non‑ideal versus ideal theory.
Rather, my argument here is narrower: to explain and justify the right to strike, we must
begin with the significantly unjust conditions of the typical labor market.
Other theories of striking rely on overly idealized notions of economic freedom
Gourevitch 18
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “The
Right to Strike: A Radical View.” American Political Science Review, Volume 112,
Issue 4, November 2018, pp. 905 – 917. JDN. https://www.cambridge.org/core/journals/
american‑political‑science‑review/article/abs/right‑to‑strike‑a‑radical‑view/8B521F67E
28D4FAE1967B17959620424
The second deficiency is methodological. Some liberal and social democratic accounts
proceed in a different way that, at best, results in some confusion and, at worst, pro‑
duces ideological obfuscation. Those accounts begin by asking what kind of right to
strike would workers in an ideal society enjoy. They then use the answer to justify and
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describe the shape of the right to strike that workers in actually existing, class‑divided
societies, enjoy. This move, whether explicit or implicit, is always illicit. It not only
changes the normatively relevant question from what is permitted under conditions of
oppression to what one ought to be free to do under ideal ones, but it also lends the
weight of ideal self‑determination in economic life (Borman 2017). While very friendly
to his contractualist argument, mine springs from arguments about freedom (and op‑
pression) beyond the absence of formal practices of justification in workplace gover‑
nance. Further, I see the problem of self‑determination as including the problem of
self‑emancipation, of justifying mass disobedience, and of how to explain the shape of
right to strike. conditions to actual circumstances in the wrong way. It makes it ap‑
pear like those ideal rights—their grounds, limits, and permissions—apply as limiting
conditions to severely nonideal political and social relations. As such, it lends the moral
weight of the ideal to the real in a way that obscures the oppression of that social reality.
To be clear, this methodological error is not a logically necessary feature of the liberal
or social democratic views I shall present and criticize. But it is a recurring or latent
tendency that leads to mistakes and ambiguities about the basis for and the proper shape
of the right to strike. Insofar as this methodological issue is not directly confronted, it
creates real confusion about the basis for the right to strike—about whether the liberal or
social democratic versions of the right to strike are responses to oppression or theories
of a species of right that one enjoys under ideal conditions. The radical version of the
right to strike that I defend, however, is explicit in its justificatory approach. The radical
argument makes no claim regarding whether members of an ideal society would enjoy
a right to strike nor does it say what that right to strike would look like under ideal
circumstances.20 Instead, it answers the question, ”What kind of right to strike should
workers have?” by asking, ”What may workers who face oppression do to resist that
oppression?” That is to say, it is an argument about the kinds of rights those who face
oppression have in virtue of the fact that they are oppressed and only in the context of
that oppression.This is a different kind of reasoning and yields a different view about
why certain ways of exercising that right are permissible or not.21
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5.2.7 Unconditionality Key
Limits on the right to strike impede its effectiveness
Reddy 21
Diana S. Reddy (Doctoral Fellow at the Law, Economics, and Politics Center at UC
Berkeley Law). “ ‘There Is No Such Thing as an Illegal Strike’: Reconceptualizing
the Strike in Law and Political Economy.” Yale Law Journal. 6 January 2021. JDN.
https://www.yalelawjournal.org/forum/there‑is‑no‑such‑thing‑as‑an‑illegal‑strike‑
reconceptualizing‑the‑strike‑in‑law‑and‑political‑economy
The National Labor Relations Board—the institution charged with enforcing the policies
of the Act—summarizes these “qualifications and limitations” on the right to strike on
its website in the following way:
The lawfulness of a strike may depend on the object, or purpose, of the strike, on its
timing, or on the conduct of the strikers. The object, or objects, of a strike and whether
the objects are lawful are matters that are not always easy to determine. Such issues
often have to be decided by the National Labor Relations Board. The consequences can
be severe to striking employees and struck employers, involving as they do questions
of reinstatement and backpay.93
The “right” to strike, it seems, is filled with uncertainty and peril.
Collectively, these rules prohibit many of the strikes which helped build the labor move‑
ment in its current form. Ahmed White accordingly argues that law prohibits effective
strikes, strikes which could actually change employer behavior: “Their inherent affronts
to property and public order place them well beyond the purview of what could ever
constitute a viable legal right in liberal society; and they have been treated accordingly
by courts, Congress, and other elite authorities.”94
Restrictions on the right to strike have reduced it to meaninglessness
Pope et al. 17
James Gray Pope (Professor of Law and Sidney Reitman Scholar at Rutgers Univer‑
sity), Ed Bruno (former director of the United Electrical Radio and Machine Workers
of America, and past southern director for the National Nurses Union), and Peter Kell‑
man (past president of the Southern Maine Labor Council and is currently working with
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the Movement Building/Education Committee of the Maine AFL‑CIO). “The Right to
Strike.” Boston Review, Spring 2017. JDN. https://bostonreview.net/forum/james‑gray‑
pope‑ed‑bruno‑peter‑kellman‑right‑strike
The prospects for union revival may seem bleaker than ever during the Trump admin‑
istration, even as the triumph of right‑wing populism makes more urgent what was
already apparent: the need to build a labor movement that can fight for the interests of
the working class in the face of corporate power.
But prospects are not as grim as they appear. Over the past decade, there has been an
undeniable shift toward class politics, most visibly evidenced by Occupy Wall Street,
the Bernie Sanders campaign, the Fight for Fifteen, and the rise of a Black Lives Mat‑
ter movement that supports economic justice demands, including the right to organize.
Building the labor movement in this period of danger and opportunity will require not
only heeding Lerner’s call for a strategic shift and extralegal action; labor must also re‑
claim the right to strike and confront the deep structural disabilities that impede unions
from challenging corporate power.
As Lerner diagnosed twenty years ago, U.S. labor law blocks unions and workers from
effective organizing and striking. Then as now, the law’s protections for workers’ rights
amount to little more than paper guarantees, while its restrictions are downright deadly.
Indeed the Committee on Freedom of Association of the International Labor Organiza‑
tion (ILO) has held that the United States is violating international standards by failing
to protect the right to organize, by banning secondary strikes and boycotts across the
board, and by allowing employers to permanently replace workers who strike. The ban
on secondary strikes is especially debilitating, because it prevents workers who have
economic power, such as organized grocery workers, from aiding workers who do not,
for example unorganized packing house workers. If the grocery workers support strik‑
ing packers by refusing to handle food packed by strikebreakers, they are said to be
engaging in an illegal secondary strike.
But the law cuts even deeper, deforming workers’ organizations at their inception. As
amended by the Taft‑Hartley Act of 1947 (tagged by unionists as the “Slave Labor Law”),
the National Labor Relations Act (NLRA) confronts workers with a choice between two
inadequate forms of organization: statutory “labor organizations,” popularly known
as unions, and “others,” for example workers’ centers that organize outside the statu‑
tory framework. At first glance, the choice seems obvious. Only unions can demand
and engage in collective bargaining. But unions are subject to so many restrictions that
some workers’ organizations (such as the Restaurant Opportunities Centers United) are
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willing to forego collective bargaining in order to avoid them, while others (including
the Coalition of Immokalee Workers) consider themselves lucky to be excluded from
the NLRA altogether. In the 1960s Cesar Chavez of the United Farm Workers rejected
NLRA coverage for farm workers on the ground that it would inscribe “a glowing epi‑
taph on our tombstone.”
Acknowledgement of a conditional right to strike gives the government means to
circumscribe labor resistance
Crépon 19
Marc Crépon (Professor of Philosophy at the Ecole Normale Superieure and direc‑
tor of research at the Archives Husserl, National Center for Scientific Research).
“The Right to Strike and Legal War in Walter Benjamin’s ‘Toward the Critique of
Violence’.” Translation by Micol Bez. Critical Times (2019) 2 (2): 252–260. JDN.
https://read.dukeupress.edu/critical‑times/article/2/2/252/141479/The‑Right‑to‑Strike‑
and‑Legal‑War‑in‑Walter
Let us return to the place that the right to strike occupies within class struggle. To
begin with, the very idea of such a struggle implies certain forms of violence. The strike
could then be understood as one of the recognizable forms that this violence can take.
However, this analytical framework is undermined as soon as this form of violence
becomes regulated by a “right to strike,” such as the one recognized by law in France
in 1864. What this recognition engages is, in fact, the will of the state to control the
possible “violence” of the strike. Thus, the “right” of the right to strike appears as the
best, if not the only, way for the state to circumscribe within (and via) the law the relative
violence of class struggles. We might consider this to be the perfect illustration of the
aforementioned hypothesis. Yet, there are two lines of questioning that destabilize this
hypothesis that we would do well to consider.
First, is it legitimate to present the strike as a form of violence? Who has a vested inter‑
est in such a representation? In other words, how can we trace a clear and unequivo‑
cal demarcation between violence and nonviolence? Are we not always bound to find
residues of violence, even in those actions that we would be tempted to consider non‑
violent? The second line of questioning is just as important and is rooted in the distinc‑
tion established by Georges Sorel, in his Reflections on Violence, between the “political
strike” and the “proletarian general strike,” to which Benjamin dedicates a set of com‑
plementary analyses in §13 of his essay. Here, again, we are faced with a question of
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5 Evidence
limits. What is at stake is the possibility for a certain type of strike (the proletarian gen‑
eral strike) to exceed the limits of the right to strike— turning, in other words, the right
to strike against the law itself. The phenomenon is that of an autoimmune process, in
which the right to strike that is meant to protect the law against the possible violence of
class struggles is transformed into a means for the destruction of the law. The difference
between the two types of strikes is nevertheless introduced with a condition: “The valid‑
ity of this statement, however, is not unrestricted because it is not unconditional,” notes
Benjamin in §7. We would be mistaken in believing that the right to strike is granted
and guaranteed unconditionally. Rather, it is structurally subjected to a conflict of in‑
terpretations, those of the workers, on the one hand, and of the state on the other. From
the point of view of the state, the partial strike cannot under any circumstance be un‑
derstood as a right to exercise violence, but rather as the right to extract oneself from
a preexisting (and verifiable) violence: that of the employer. In this sense, the partial
strike should be considered a nonviolent action, what Benjamin named a “pure means.”
The interpretations diverge on two main points. The first clearly depends on the al‑
leged “violence of the employer,” a predicate that begs the question: Who might have
the authority to recognize such violence? Evidently it is not the employer. The danger
is that the state would similarly lack the incentive to make such a judgment call. It is
nearly impossible, in fact, to find a single instance of a strike in which this recognition
of violence was not subject to considerable controversy. The political game is thus the
following: the state legislated the right to strike in order to contain class struggles, with
the condition that workers must have “good reason” to strike. However, it is unlikely
that a state systematically allied with (and accomplice to) employers will ever recog‑
nize reasons as good, and, as a consequence, it will deem any invocation of the right to
strike as illegitimate. Workers will therefore be seen as abusing a right granted by the
state, and in so doing transforming it into a violent means. On this point, Benjamin’s
analyses remain extremely pertinent and profoundly contemporary. They unveil the
enduring strategy of governments confronted with a strike (in education, transporta‑
tion, or healthcare, for example) who, after claiming to understand the reasons for the
protest and the grievances of the workers, deny that the arguments constitute sufficient
reason for a strike that will likely paralyze this or that sector of the economy. They deny,
in other words, that the conditions denounced by the workers display an intrinsic vio‑
lence that justifies the strike. Let us note here a point that Benjamin does not mention,
but that is part of Sorel’s reflections: this denial inevitably contaminates the (socialist)
left once it gains power. What might previously have seemed a good reason to strike
when it was the opposition is deemed an insufficient one once it is the ruling party. In
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5 Evidence
the face of popular protest, it always invokes a lack of sufficient rationale, allowing it
to avoid recognizing the intrinsic violence of a given social or economic situation, or of
a new policy. And it is because it refuses to see this violence and to take responsibility
for it that the left regularly loses workers’ support.
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5 Evidence
5.2.8 Signaling Value
Strikes can serve as a signaling device even if concrete demands are not met
Peetz 16
David Peetz (Professor of Employment Relations, Griffith Business School).
“In‑
dustrial action, the right to strike, ballots and the Fair Work Act in interna‑
tional context.”
Australian Journal of Labour Law.
2016.
JDN. https://research‑
repository.griffith.edu.au/bitstream/handle/10072/380625/PeetzPUB6698.pdf?sequence=1
More interesting than industry breakdowns are the types of strikes — their causes (in
particular, whether or not they are related to enterprise bargaining, which is the only
way in which a strike may be protected) and the way in which they ended (whether
they were contingent or unconditional). Table 6 shows the way in which disputes were
resolved. We see that from the 1960s, strikes in which work was ‘resumed without nego‑
tiation’ (unconditional strikes) clearly outnumbered strikes in which arbitration was the
main method by which strikes ended. They became the majority type of strike under
the decentralised accord, and have maintained that primacy since that time. Although
the move to enterprise bargaining, initially under the accord, was aimed at decreasing
the role of tribunals and increasing the role of negotiation in settling disputes, it only ap‑
peared to achieve the former objective, at least in terms of the strikes themselves. Rather
than settling strikes through negotiation, unions have used strikes as a signalling device
in enterprise bargaining and show no signs of moving away from that model. Hence
unconditional strikes are more common than contingent strikes. The use of negotiation
to end strikes continues to be low, despite the idea that enterprise bargaining would
lead to a greater focus on negotiation.
History shows many strikes are intended primarily as signaling devices
Peetz 16
David Peetz (Professor of Employment Relations, Griffith Business School).
“In‑
dustrial action, the right to strike, ballots and the Fair Work Act in interna‑
tional context.”
Australian Journal of Labour Law.
2016.
JDN. https://research‑
repository.griffith.edu.au/bitstream/handle/10072/380625/PeetzPUB6698.pdf?sequence=1
This history has significant implications for the norms and culture of industrial action
in Australia. As strike patterns developed in context of the conciliation and arbitration
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5 Evidence
system, an incentive emerged for unions to engage in short, unconditional disputes,
the purpose of which was to signal the intensity of employee views to employers (and
tribunals, thereby facilitating speedy access to award‑making processes), rather than to
evoke an immediate response from the employer. In other words, many strikes were
signalling devices, used to convey the ‘intensity’ of employee views — how strongly
they felt about a matter and how far they were willing to go to promote and protect their
interests. They were not intended to continue until the issue was settled, but instead to
imply the cost the employer could incur if they did not give ground in the future.15 Thus
strikes were also a means by which employers obtained knowledge to avoid future costs.
This contrasts with contingent strikes (or employer contingent lockouts) where there is
uncertainty about the end date due to the fact that it depends on the response of another
party.
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5.2.9 AT: Freedom of Contract
Appeals to “freedom of contract” ignore the coercive aspects behind employees
signing away their right to strike
Gourevitch 16
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “Quit‑
ting Work but Not the Job: Liberty and the Right to Strike.” American Political Science
Association Vol. 14, No. 2. June 2016. JDN. https://www.cambridge.org/core/journals/
perspectives‑on‑politics/article/abs/quitting‑work‑but‑not‑the‑job‑liberty‑and‑the‑
right‑to‑strike/27B690FEDDBCF002FB20FB50E852D6A3
The problem with the real freedom of contract view is that it is based on faulty social
analysis. The labor market is not just another commodity market in which property
owners are, or can be made, free to participate or not participate. Here some social
theory is inescapable. Workers who have no other consistent source of income than
a wage have no reasonable alternative to selling their labor‑power. That is because in
capitalist societies most goods are only legally accessible if you can buy them. There
is no other way of reliably acquiring necessary goods. The only way for most workers
to get enough money to buy what they need is by selling their labor power. Their only
alternatives are to steal, hope for charity, or rely on inadequate welfare provision. These
are, generally speaking, unreasonable alternatives to seeking income through wages. If
workers have no reasonable alternative to selling their labor‑power they are therefore
forced to sell that labor‑power to some employer or another.56 This forcing exists even
when workers earn relatively high wages, since they still lack reasonable alternatives,
though the forcing is more immediate the closer one gets to poverty wages.
The key feature of this forcing is that it is consistent with voluntary exchange but it is
not some occasional or accidental feature of this or that worker’s circumstances. It is a
product of the distribution of property in society. People are forced to sell their capacity
to labor when, on the one hand, everyone has property rights in their own capacity to
labor and, on the other hand, some group of individuals monopolize all or nearly all of
the productive assets in that society. These are the necessary conditions to create a labor
market sufficiently robust to organize production. That is to say, a society in which the
primary way of organizing production is through a labor market is one in which most
people are forced into that labor market. Or, put another way, a society in which most
people were truly free to enter or not enter the labor market would be one in which
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5 Evidence
labor is so radically decommodified that the mere formal possibility of a labor market
could not serve, on its own, to guarantee social reproduction. Relations among workers
and employers would be truly free and thus truly contingent. It is only when there is a
sufficiently large population of individuals who have nothing but their labor‑power to
sell that the mechanism of social forcing guarantees a constant supply of labor through
the labor market itself. But this means that, in a society based on the commodification
of labor, the conditions that would make the buying and selling of labor‑power a truly
free set of exchanges would require utterly transforming that market‑based production
relationship itself. It would require giving workers a reasonable alternative to selling
their labor—say through a sizable, unconditional basic income and universal public
goods, or through giving all workers the possibility of owning or cooperatively owning
their own enterprise. Such measures would amount to a radical de‑commodification
of labor‑power, an overcoming of the very social conditions that give rise to the labor
market’s self‑image as a site of free exchange. As Ira Steward, a nineteenth‑century
American labor reformer, once said, “if laborers were sufficiently free to make contracts
... they would be too free to need contracts.” 57
The foregoing social analysis is familiar enough, but its implications for the right to
strike are rarely considered. The right to strike begins to make more sense if we re‑
flect upon the fact that workers who are forced to sell their labor power are vulnera‑
ble to exploitation. Exploitation just is the word for structural domination in the do‑
main of economic production.58 Some workers will accept jobs at going wage rates and
hours, others will be unable to bargain for what they need, and most can be made to
work longer hours, at lower pay, under worse conditions than they would otherwise
accept. Many employers know this and will take advantage of it.59 Even if employers
do not intentionally take advantage of it, they do so tacitly by making numerous eco‑
nomic decisions about hiring, firing, wages, and hours that assume this steady supply
of economically‑dependent labor. So it is not just the force of necessity, but the fact that
this forcing leaves workers vulnerable to exploitation and the further fact that this is
a class condition that is relevant to our thinking. It explains why workers might seek
collective solutions to their structural domination and why they might refuse to believe
that they can overcome their exploitation through purely individual efforts.
The further point is that, short of quasi‑socialist redistribution or of giving everyone
universal rights to ownership of capital, workers are justified in turning to some other
way of resisting their structural domination. The legal fact of being able to quit a job is
cold comfort because it allows workers to leave a specific boss, but not the labor mar‑
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ket itself. Insofar as workers are forced into contracts with employers, and into work
associations with other workers, they can only resist their structural domination from
within. Here we have an insight into why the right to strike includes the perplexing
claim that workers refuse to work yet maintain a right to the job. The typical worker
can quit the job, but she cannot quit the work. To avoid being exploited she turns the
table: she quits working without quitting the job.
The right to strike always remains a possibility given the inherent incompleteness
of contracts
Gourevitch 16
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “Quit‑
ting Work but Not the Job: Liberty and the Right to Strike.” American Political Science
Association Vol. 14, No. 2. June 2016. JDN. https://www.cambridge.org/core/journals/
perspectives‑on‑politics/article/abs/quitting‑work‑but‑not‑the‑job‑liberty‑and‑the‑
right‑to‑strike/27B690FEDDBCF002FB20FB50E852D6A3
There are a few ways that a contract‑based social theory might respond to this challenge,
but we shall focus here on the most important:70 the incompleteness of contracts. It is a
well known fact that all contracts are incomplete.71 But in the case of the workplace, this
incompleteness is intensified and magnified by the fact that the contract is to take part in
a dynamic, continuous activity with other people. No matter what a worker has agreed
to at the point of the contract, it is impossible for a contract to specify all of the eventual‑
ities that arise in the complex, ongoing process of running a workplace. Something else
has to explain who exercises control over all these unanticipated matters. This means
that no matter how freely made a contract is, we cannot say that the authority to which
a worker is subject is justified by that free consent. At most, the radical incompleteness
of labor contracts is what allows the many aspects of law and cultural assumption to fill
the void. For instance, this where that “core of entrepreneurial control” over issues like
hiring, firing, investment, and work organization plays a major role.72 Strikers may not
strike to contest these decisions and employers may not be forced to bargain about them.
They need not give any account of why such production decisions have been made,
even if they have dramatic consequences for employees—like producing plant closures
or changing the organization and definition of tasks. Courts have defended this man‑
agerial control and the narrowing of the right to strike by importing older, status‑based
ideas about contract and property to fill the void of incompleteness. Only by (often
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5 Evidence
semi‑articulated) reference to quasi‑feudal master‑servant law have they been able to
fill out the authority that the contract leaves open. Courts have argued that worker def‑
erence to managers of a “common enterprise” is implied in the contract or by arguing
that employers enjoy uninfringeable property rights in the worker’s labor or wider en‑
terprise.73 In other words, courts themselves have acknowledged the incompleteness
and thus indeterminacy of the contract with respect to the organization of work, but
generally resolved this authority in favor of employers by appeal to something outside
the contract itself.
So the point about structural domination was that workers might be forced to make
a variety of explicit concessions on any number of issues—wages, hours, conditions,
stultifying jobs. But the point about personal domination in the workplace is that the
contract also seems to involve the tacit concession of generic control over a further set
of unknown issues. The problem from the standpoint of contract theory is that the con‑
tract itself cannot adequately explain why this power is assumed to devolve to the em‑
ployer nor why law should support this assumption. At most, we can only say that the
worker agreed to give up this control, not that she in any way agreed to the various
decisions about her work. Usually, however, we do not think a human being has a right
to such blanket alienation of her liberty. In the case of work, the only reason supporting
that worker’s alienation of control as authoritative seems to be that the worker sold her
property—her labor‑power—and therefore has no right to control that property for the
duration of the work (within the reasonable boundaries of protective labor legislation)
or that she owes obligations of deference to the employer.
As we have seen, workers resist these accounts on the grounds that their capacity to
labor is not a commodity at all. Or at least, labor‑power cannot operate as a commodity
in this case because a crucial feature of the sale of property —separability of the seller’s
will from the commodity sold —is impossible. Therefore whatever the status the la‑
bor contract has, the authority relations of the workplace itself cannot legitimately be
derived from the contract—at least not from the contract conceived as a sale of property.
Workers nevertheless find themselves in a world in which employers do legally possess
this arbitrary authority. The strike is, again, one way of challenging this authority by
attacking the idea that, since they appear like sellers of their capacity to labor, workers
may be treated as subordinates. The strike is a way of pressing the claim that workers,
too, should exercise control rather than submit passively to managerial prerogatives.
There are many historical examples of resistance to this kind of personal domination,
such as “control strikes,” strikes over the introduction of new technology, and even
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5 Evidence
strikes over seemingly lesser issues like “abolition of the luncheon privilege.” 74 The
general point being that strikes that target decisions usually falling under the domain
of “core of entrepreneurial control” are not just about instrumental considerations re‑
garding compensation and conditions but about resisting the very logic of contract and
property that supports the manager’s authority in the first place.7
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5.2.10 AT: Alternatives
Proposing a more ideal economic system doesn’t disprove the right to strike in a
non‑ideal system
Gourevitch 18
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “The
Right to Strike: A Radical View.” American Political Science Review, Volume 112,
Issue 4, November 2018, pp. 905 – 917. JDN. https://www.cambridge.org/core/journals/
american‑political‑science‑review/article/abs/right‑to‑strike‑a‑radical‑view/8B521F67E
28D4FAE1967B17959620424
One might object that the right to strike is the wrong answer to the facts of oppression.
Isn’t the proper response to argue for social policies that would eliminate that oppres‑
sion? Why bother with the chaos and collateral injustice that often follows from strikes?
The short answer is that this is a non sequitur. I am asking, “given the facts of oppres‑
sion, what may those who suffer it do to resist it?” The objector is asking, “What would
the ideal, or at least reasonably just, society look like?” The latter is its own question,
but as a response to my question it is unacceptably quietist. It verges on arguing that
those who are oppressed must suffer it until utopia becomes possible.
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5.2.11 AT: Essential Workers
COVID demonstrates the necessity of strikes for protecting the rights of essential
workers
McNicholas and Poydock 20
Celine McNicholas (Director of Policy and Government Affairs for EPI) and Margaret
Poydock (Policy Analyst for EPI). “Workers are striking during the coronavirus:
Labor law must be reformed to strengthen this fundamental right.” Economic Policy
Institute. 22 June 2020. JDN. https://www.epi.org/blog/thousands‑of‑workers‑have‑
gone‑on‑strike‑during‑the‑coronavirus‑labor‑law‑must‑be‑reformed‑to‑strengthen‑
this‑fundamental‑right/
The BLS’s monthly data on work stoppages do not capture any strikes directly related to
the coronavirus pandemic. However, it is evident essential workers are going on strike
as seen in the recent walkouts organized by Amazon, Instacart, and Target workers as
well as the dozens of strikes organized by fast food and delivery workers. Consequently,
there is a large gap in knowledge about the true extent of strikes that occur during the
coronavirus pandemic and beyond.
Based on the very limited data available, the resurgence of strike activity in recent years
has given over a million workers an active role in demanding improvements in their
pay and working conditions. Essential workers during the coronavirus pandemic are
continuing this trend by demanding better pay and safer working conditions from their
employers. However, without comprehensive data, it’s impossible to understand the
scope of how many workers are utilizing their fundamental right to strike. This knowl‑
edge gap makes it difficult for policymakers to adequately address the needs for work‑
ers in the United States, and the Bureau of Labor Statistics should be provided funding
to gather comprehensive data on worker strikes. But even with the limited knowledge
we have, it’s evident that strikes are an effective tool to improve the pay and working
conditions of working people. Therefore, strengthening the right to strike for workers
needs to be at the heart of labor law reform going forward.
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5.2.12 Strikes are Political
The right to strike is a political right
Gourevitch 16
Alex Gourevitch (Assistant Professor of Political Science at Brown University). “Quit‑
ting Work but Not the Job: Liberty and the Right to Strike.” American Political Science
Association Vol. 14, No. 2. June 2016. JDN. https://www.cambridge.org/core/journals/
perspectives‑on‑politics/article/abs/quitting‑work‑but‑not‑the‑job‑liberty‑and‑the‑
right‑to‑strike/27B690FEDDBCF002FB20FB50E852D6A3
My basic thought is that the right to strike is a right of human freedom claimed against
the social domination that the typical modern worker experiences. Ordinarily, the right
to strike is thought to be an economic right whose purpose is to maintain a certain kind
of bargaining relationship among self‑interested economic actors. However, it is better
understood as a political right that individuals claim against an unjust system of law
and property in the name of justice and emancipation. It is a political right even when
most strikes do not have explicitly political ends. Put another way, one reason strikes
are political is the way they threaten the normal distinction between politics and eco‑
nomics itself. They do so by challenging the idea that the logic of commodity exchange
and private contracts should govern labor relations. The best justification of the right
to strike lies in the way strikers claim their liberty not just as abstract persons but as
socially‑situated agents, who find themselves in the historically specific relationships of
domination associated with the labor market. It is this connection to resisting domina‑
tion that makes the right to strike political.
Striking is inherently political
Reddy 21
Diana S. Reddy (Doctoral Fellow at the Law, Economics, and Politics Center at UC
Berkeley Law). “ ‘There Is No Such Thing as an Illegal Strike’: Reconceptualizing
the Strike in Law and Political Economy.” Yale Law Journal. 6 January 2021. JDN.
https://www.yalelawjournal.org/forum/there‑is‑no‑such‑thing‑as‑an‑illegal‑strike‑
reconceptualizing‑the‑strike‑in‑law‑and‑political‑economy
But my argument here for reconceptualizing the strike as political is not about more
“political strikes,” or about electoral politics, or even necessarily about state action.
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Based on a vision of the “political” as normative engagement directed towards collec‑
tive decision‑making—it is about destabilizing jurisprudential line drawing between
the economic and the political in the first place.167 It is recognizing that all strikes are
political or have the potential to be—in that all strikes are protest meant to transform
collective conditions, not merely bargaining towards immediate, transactional ends. To
use political science terminology, strikes are contentious politics: “[E]pisodic, public,
collective interaction among makers of claims and their objects.”168 They are a way
through which workers engage in claims‑making when business and politics as usual
have proven nonresponsive.169 They do not only address the employer; they engage
the polity.
The need to reconceptualize the strike as outward‑facing towards the public, not just
inward‑facing towards the employer, is partly a function of material changes, both in
economic production and union density. As labor scholar Jane McAlevey points out,
“Today’s service worker has a radically different relationship to the consuming public
than last century’s manufacturing worker had . . . In large swaths of the service econ‑
omy, the point of production is the community.”170 For this reason, she argues that
effective strikes today must engage the public to be successful.171 Union density is also
many times higher now in the public sector than in the private one, an upending of the
realities of unionization mid‑century.172 As illustrated by the Supreme Court’s decision
in Janus v. AFSCME, it is easier to see the economic work of unions as political (qua
affecting government policy, spending, and debt) in the public sector.173
Yet, the shift is also about recognizing that it was a legal and an ideological accommoda‑
tion that made the work of unions in their representative capacity appear as “economic,”
and thus outside politics. The work of unions has been artificially “bifurcated” vis‑à‑vis
the political realm.174 For years, as Reuel Schiller has argued, unions have engaged in
“two sets of activities that appear barely related to one another”: private, transaction
bargaining in the workplace; combined with broad, public mobilization around elec‑
toral politics. But there were always alternate visions of the relationship between the
economic and the political within union advocacy and workplace governance.175 If “es‑
tablishing terms and conditions of employment [is] a political act involving not just a
worker and an employer, but also a union, an industry as a whole, and the state,” then
union advocacy is a political act too.176 Strikes are part of the “contest of ideas.”
Reconstructing a purposefully political philosophy, jurisprudence, and tactical reper‑
toire of collective‑labor advocacy is a project that is new again; and it will inevitably
require deliberation, debate, and compromise.177 For the time being, though, one thing
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seems apparent. Strikes must be a part of engaging a broad swath of the public in recon‑
ceptualizing political economy.
Framing the right to strike purely economically misunderstands its primary value
Reddy 21
Diana S. Reddy (Doctoral Fellow at the Law, Economics, and Politics Center at UC
Berkeley Law). “ ‘There Is No Such Thing as an Illegal Strike’: Reconceptualizing
the Strike in Law and Political Economy.” Yale Law Journal. 6 January 2021. JDN.
https://www.yalelawjournal.org/forum/there‑is‑no‑such‑thing‑as‑an‑illegal‑strike‑
reconceptualizing‑the‑strike‑in‑law‑and‑political‑economy
And yet, the pre‑New Deal history of the American labor movement reminds us that
alternate visions for the strike once existed, and with them, for the role of organized
labor in a democratic polity. Legal scholars of the first law‑and‑economics movement
argued that corporations were akin to governments in their coercive power.114 They
did so in order to politicize the private, to render it a legitimate site of democratic gov‑
ernance.115 Jurisprudentially, much was up for grabs at this point. Corporations might
have been analogized to governments, rather than persons, owing constitutional rights
to their constituents, rather than holders of those rights against government regulation.
Consistent with this view of employment as a political relationship, the right to strike
could have been a right of a different sort (political? civil? property?), not a commercial
one.116
The labor movement which emerged from the Progressive Era, however, did not ad‑
vance this vision of political economy. Fearing that any broadly conceived “public in‑
terest” would prioritize capital over labor, the AFL preferred to build worker‑led institu‑
tions, organizations that would be corporations’ counterparts. It advanced a corporatist
solution rather than a statist one. And within the world of industrial democracy qua col‑
lective bargaining, the strike became understood as an economic right, hard bargaining,
a last resort in negotiations gone awry.117
The limitations of this understanding of the strike did not immediately become appar‑
ent. Among other factors, Keynesian political economy gave labor unions legitimacy as
agents of a common good.118 Employers—constrained in part by law, and even more
by institutional understandings of what was acceptable—pulled their punches. When
the NLRA was first enacted, strike activity, union membership, and worker wages grew
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concurrently.119 And even after enactment of the Taft‑Hartley Amendments—in the era
of the so‑called “labor‑capital” accord—strikes continued to occur with some frequency,
and to be associated with wage growth for workers.120
As I discuss further below, this changed in the 1970s, as the Keynesian political eco‑
nomic commitments that had bolstered labor law gave way. Between 1983 and 2015,
total union membership declined by approximately 44%, and private sector union mem‑
bership declined by 60%.121 Over a similar period, major work stoppages declined by
90%.122 And the few strikes that still did occur were qualitatively different. They were
“desperate measures,” which failed to advance union objectives.123 They did not create
wage growth, the “more” that Progressive Era labor leaders had envisioned.124 As an
economic weapon, the strike malfunctioned.125
Revolutionary strikes poses a challenge to the class structure itself
Crépon 19
Marc Crépon (Professor of Philosophy at the Ecole Normale Superieure and direc‑
tor of research at the Archives Husserl, National Center for Scientific Research).
“The Right to Strike and Legal War in Walter Benjamin’s ‘Toward the Critique of
Violence’.” Translation by Micol Bez. Critical Times (2019) 2 (2): 252–260. JDN.
https://read.dukeupress.edu/critical‑times/article/2/2/252/141479/The‑Right‑to‑Strike‑
and‑Legal‑War‑in‑Walter
The opposition between the aforementioned conflicts of interpretation manifests itself
in Benjamin’s excursus on the revolutionary strike, and specifically in the opposition
between the political strike and the proletarian general strike, and in the meaning we
should attribute to the latter. As previously discussed, the state will never admit that
the right to strike is a right to violence. Its interpretative strategy consists in denying,
as much as possible, the effective exercise of the right that it theoretically grants. Under
these conditions, the function of the revolutionary strike is to return the strike to its true
meaning; in other words, to return it to its own violence. In this context, the imperative
is to move beyond idle words: a call to strike is a call to violence. This is the reason
why such a call is regularly met with a violent reaction from the state, because trade
unions force the state to recognize what it is trying to ignore, what it pretends to have
solved by recognizing the right to strike: the irreducible violence of class struggles. This
means that the previously discussed alternative between “suspension” and “extortion”
is valid only for the political strike—in other words, for a strike whose primary vocation
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is not, contrary to that of the proletarian general strike, to revolt against the law itself.
Essentially, the idea of a proletarian general strike, its myth (to borrow Sorel’s words), is
to escape from this dichotomous alternative that inevitably reproduces and perpetuates
the violence of domination.
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5.2.13 Legal Change Key
Labor movements without a legal element succumb to neoliberalism
Reddy 21
Diana S. Reddy (Doctoral Fellow at the Law, Economics, and Politics Center at UC
Berkeley Law). “ ‘There Is No Such Thing as an Illegal Strike’: Reconceptualizing
the Strike in Law and Political Economy.” Yale Law Journal. 6 January 2021. JDN.
https://www.yalelawjournal.org/forum/there‑is‑no‑such‑thing‑as‑an‑illegal‑strike‑
reconceptualizing‑the‑strike‑in‑law‑and‑political‑economy
Labor’s historical antipathy to the “political” rendered it particularly vulnerable to the
neoliberal turn. Labor’s New Deal accommodation, born of its Progressive Era “mor‑
tal weakness,” made an economic case for labor unions, and left the normative case for
them underspecified. Keynesian demand‑side economic policy and industrial peace
were the NLRA’s leading rationales.137 Neoliberal political economy undermined both.
It flipped the Keynesian script, depicting capital as the driver of economic well‑being,
rather than worker income‑qua‑consumer spending. And, a few crushed strikes pro‑
vided a watered‑down version of industrial peace. Ronald Reagan’s decision to use
the power of the federal government to end the 1981 federal air controllers’ strike (an
illegal and unsuccessful strike) by firing striking workers, replacing them, and decerti‑
fying their union,138 dramatized this shift. Private employers began replacing workers
on strike too. Workers in turn stopped striking.139 And for some, this was taken as
proof that labor law had done its job of achieving industrial peace, and was no longer
needed.140
And so, while there is a tendency to see hostile law as the reason for worker quiescence,
it is not formal law alone that is the problem. The problem is equally an economic
and cultural milieu which renders these rules cognizable, legitimate, and enforceable.
In recent decades, a vision of capital as the driver of economic growth and unions as
rent‑seeking interest groups has enabled the permanent replacement of strikers, the de‑
ployment of union avoidance consultants, and a host of anti‑union practices that used
to be illegitimate, but not necessarily illegal. Labor lost “the contest of ideas.”141
At one level, the importance of political economy is acknowledged in the literature.
Craig Becker concedes in a footnote that “[t]o emphasize the law’s role is not to im‑
ply that the efficacy of strikes rests solely on formal legal rights, for strikes were waged
with success prior to the advent of legal protection.”142 And White notes that law can
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be “malleable and . . . within the province of workers to reshape around their own
interests and visions.”143 Still, through emphasis on formal legal rules, legal scholar‑
ship has at times failed to recognize the magnitude of neoliberalism’s impact, not just
as a material change in conditions, but as an ideological change in what is possible to
imagine.144
Reflecting a more nuanced approach to the relationship between formal legal rules and
what happens on the ground, labor organizers are themselves ambivalent about how
much bad law matters. A well‑known maxim within the movement declares that “there
is no such thing as an illegal strike, only an unsuccessful one.”145 Labor‑movement
activists speak matter‑of‑factly about a union’s strategic choice to disregard legal rules:
A union that decides to break anti‑worker laws should do so united, and with a plan
for the consequences.
Is your leverage great enough to make the law moot? (They can’t fire us all.) Do you
have lawyers on hand for the fallout?
Can you make withdrawal of legal charges part of the strike settlement? Will the public
put the fear of God into politicians or police chiefs that try to harm the union? Balance
the potential risks against the possible gains.146
Law is one source of leverage, activists proclaim, but it is not the only one.
This more nuanced account of the relationship between law, power, and culture is par‑
ticularly important in the current historical moment. While the law of the strike has
not changed in recent years, public consciousness about economic inequality and the
potential role of labor unions in combatting it has changed—dramatically.147 Sociolog‑
ical research traces the origins of this shift, in significant part, to the Occupy Wall Street
protests of 2011. These broad, public‑facing protests did not change law, but they did
propel economic inequality back into public discourse.148 Given that awareness of in‑
equality increases support for labor unions,149 it is perhaps not surprising that public
support for organized labor is now at a fifteen‑year‑high.150 That this sea change in
public consciousness was led not by the labor movement, but by a motley crew of un‑
organized middle‑class precariat151 says much about labor’s long turn away from the
public sphere.
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Strikes can have broader symbolic value even if not immediately materially
successful
Reddy 21
Diana S. Reddy (Doctoral Fellow at the Law, Economics, and Politics Center at UC
Berkeley Law). “ ‘There Is No Such Thing as an Illegal Strike’: Reconceptualizing
the Strike in Law and Political Economy.” Yale Law Journal. 6 January 2021. JDN.
https://www.yalelawjournal.org/forum/there‑is‑no‑such‑thing‑as‑an‑illegal‑strike‑
reconceptualizing‑the‑strike‑in‑law‑and‑political‑economy
For those who believe that a stronger labor movement is needed to counterbalance the
concentrations of economic and political power in this new Gilded Age, the question is
not just whether the law is bad (it is), but whether strikes can be effective nonetheless.
If labor activists are correct that there is “no such thing” as an illegal strike, just an un‑
successful strike, the question follows: what makes a strike successful enough, under
current conditions, to transcend legal constraints?154 To some extent this is an empir‑
ical question, and one on which there are many opportunities for generative research.
Beginning with the theoretical, however, I suggest that the success of strikes must be
measured in more than economic wins in the private sphere. Like their Progressive
Era progenitors, their success must be in raising political consciousness in the public
sphere—in making the stakes of the twenty‑first century labor question apparent.155
As noted above, under current labor law, strikes are conceptualized as “economic
weapons,” as hard bargaining.156 And while legal terminology is distinct from on‑the‑
ground understandings, unions have often emphasized the economic nature of the
strike as well. Strikes are “[t]he power to stop production, distribution and exchange,
whether of goods or services.”157 A strike works because “we withhold something that
the employer needs.”158 At the same time, there has been a corresponding tendency to
dismiss the more symbolic aspects of the strike. To quote White again, “while publicity
and morale are not irrelevant, in the end, they are not effective weapons in their own
right.”159
These arguments are important. A strike is not simply protest; it is direct action, ma‑
terial pressure. But with union density lower than ever, ongoing automation of work
tasks that renders employees increasingly replaceable, and decades of neoliberal cul‑
tural tropes celebrating capital as the driver of all economic growth and innovation, it is
a mistake to think of publicity and morale as nice‑to‑haves, rather than necessities. In‑
stead, striking must be part of building what sociologists have described as the “moral
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economy,” cultural beliefs about fair distribution untethered to technocratic arguments
about what is most efficient.160 And in that way, striking is and must be understood as
political.
Modern strikes have successfully raised broader political demands
Reddy 21
Diana S. Reddy (Doctoral Fellow at the Law, Economics, and Politics Center at UC
Berkeley Law). “ ‘There Is No Such Thing as an Illegal Strike’: Reconceptualizing
the Strike in Law and Political Economy.” Yale Law Journal. 6 January 2021. JDN.
https://www.yalelawjournal.org/forum/there‑is‑no‑such‑thing‑as‑an‑illegal‑strike‑
reconceptualizing‑the‑strike‑in‑law‑and‑political‑economy
In recent years, consistent with this vision, there has been a shift in the kinds of strikes
workers and their organizations engage in—increasingly public‑facing, engaged with
the community, and capacious in their concerns.178 They have transcended the ostensi‑
ble apoliticism of their forebearers in two ways, less voluntaristic and less economistic.
They are less voluntaristic in that they seek to engage and mobilize the broader commu‑
nity in support of labor’s goals, and those goals often include community, if not state,
action. They are less economistic in that they draw through lines between workplace‑
based economic issues and other forms of exploitation and subjugation that have been
constructed as “political.” These strikes do not necessarily look like what strikes looked
like fifty years ago, and they often skirt—or at times, flatly defy—legal rules. Yet, they
have often been successful.
Since 2012, tens of thousands of workers in the Fight for $15 movement have engaged
in discourse‑changing, public law‑building strikes. They do not shut down produc‑
tion, and their primary targets are not direct employers. For these reasons, they push
the boundaries of exiting labor law.179 Still, the risks appear to have been worth it.
A 2018 report by the National Employment Law Center found that these strikes had
helped twenty‑two million low‑wage workers win $68 billion in raises, a redistribution
of wealth fourteen times greater than the value of the last federal minimum wage in‑
crease in 2007.180 They have demonstrated the power of strikes to do more than chal‑
lenge employer behavior. As Kate Andrias has argued:
[T]he Fight for $15 . . . reject[s] the notion that unions’ primary role is to negotiate tra‑
ditional private collective bargaining agreements, with the state playing a neutral me‑
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diating and enforcing role. Instead, the movements are seeking to bargain in the public
arena: they are engaging in social bargaining with the state on behalf of all workers.”181
The right to strike is incomplete without an account of law
Reddy 21
Diana S. Reddy (Doctoral Fellow at the Law, Economics, and Politics Center at UC
Berkeley Law). “ ‘There Is No Such Thing as an Illegal Strike’: Reconceptualizing
the Strike in Law and Political Economy.” Yale Law Journal. 6 January 2021. JDN.
https://www.yalelawjournal.org/forum/there‑is‑no‑such‑thing‑as‑an‑illegal‑strike‑
reconceptualizing‑the‑strike‑in‑law‑and‑political‑economy
In arguing that strikes can be successful today, in spite of law, my argument is not that
law is unimportant; it is that law does not exist independently of other social processes.
Political contestation will always be on multiple fronts, and success in one arena shifts
the balance of power in others.
Tumultuous times come to an end. Social agitation is difficult to sustain, and the grav‑
itational pull of existing power structures tugs us towards a less tumultuous, if forever
altered, new normal. Institutional change is what lasts beyond the tumult. For a new
Progressive Era to correct the multiple, overlapping forms of inequality which have led
to the current moment, a broad new social compact is necessary. That requires political
co‑determination and law.201 Law matters (it is just not the only thing that matters).
Perhaps unsurprisingly, the limitations of labor’s current legal regime have led to a
resurgence in labor’s laissez‑faire instincts. Legal scholars caution skepticism about the
state; they urge labor to seek “freedom” but not “rights.”202 And they are correct that
labor must strategically approach state power from a place of political realism. But what‑
ever those realities, the important work of small‑p politics and small‑c constitutionalism
remains.203 For better or worse, the Progressive view of the state has won the day, and
legal contestation is the crucible in which many public values are built. To hive off the
economic from the political, the private from the public, cedes too much.
From this perspective, the phrase “there is no such thing as an illegal strike” is itself a
remnant of labor’s sticky voluntarism, its apoliticism. Having been cast as outlaws in
the Gilded Age, union leaders “internalize[d] this negative identity” and have wielded
it since.204 Labor scholars today question why unions’ long history of illegal strikes is
not told, alongside the tactics of other movements, as a civil disobedience story.205 But
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law‑breaking by itself is not civil disobedience. It is through articulating an alternate
normative vision—through law‑making—that illegal strikes become civil disobedience.
CONCLUSION
The Progressive Era involved massive protest, and a host of different explanations and
proposed solutions for how to reconcile the inequalities of capitalism with the egalitar‑
ian commitments of a democracy. The ideas and institutions that stuck helped create
the scaffolding for the legal reforms of the New Deal Era. That resolution of the labor
question settled on one particular vision of organized labor as a social good: organized
labor would be an economic entity that would engage in economic conflict with em‑
ployers, and, in turn, the strike would be an economic weapon rather than a political
one. That vision of labor proved insufficient to counter the challenges of the neoliberal
period.
How we understand today’s “labor question” will inform the next legal regime for labor
and whatever new normal it ushers in. It took economic devastation and protest to bring
about the partial victory of the first New Deal. Workers across the country, including
Minneapolis bus drivers, are now risking their livelihoods to bring about something
better.206
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5.2.14 Rights Key
Striking must be framed as a right to be effective
Pope et al. 17
James Gray Pope (Professor of Law and Sidney Reitman Scholar at Rutgers Univer‑
sity), Ed Bruno (former director of the United Electrical Radio and Machine Workers
of America, and past southern director for the National Nurses Union), and Peter Kell‑
man (past president of the Southern Maine Labor Council and is currently working with
the Movement Building/Education Committee of the Maine AFL‑CIO). “The Right to
Strike.” Boston Review, Spring 2017. JDN. https://bostonreview.net/forum/james‑gray‑
pope‑ed‑bruno‑peter‑kellman‑right‑strike
We propose that everyone who is concerned about union revival make it a top prior‑
ity to support and publicize civil disobedient exercises of workers’ rights wherever and
whenever they happen, especially where workers are violating restrictions on the rights
to organize, strike, or act in solidarity. For example, in response to the spontaneous
worker occupation of the Republic Windows factory in 2008, the United Electrical Work‑
ers Union (UE) promptly moved to support the workers and maximize the impact of
their courageous action instead of worrying about possible union liability or negative
reactions from politicians or employers.
A rights movement can also gain ground by campaigning for rights legislation, even if
its bills fall short of passage. Consider the twentieth‑century labor movement, which
won all of our major national workers’ rights statutes. Strikes were no more popular
then than they are now. Yet for decades unions campaigned for the total abolition of
anti‑strike, anti‑organizing, and anti‑boycott laws and injunctions. Many bills were de‑
feated, but each gave unionists an opportunity to demand the rights to organize and
strike under the First Amendment freedom of association and the Thirteenth Amend‑
ment ban on involuntary servitude. And, although the provisions of the bills varied, the
focus on rights remained strong until Congress finally passed the Norris‑LaGuardia
Anti‑Injunction Act of 1932 and the National Labor Relations Act of 1935, which pro‑
tected the rights to organize and strike until eroded by judicial decisions and the Taft‑
Hartley Act of 1947.
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5.3 Negative Evidence
5.3.1 Essential Workers
The right to strike can be limited to ensure essential services
Malebye 14
Cynthia Dithato Malebye (Department of Mercantile Law, University of Preto‑
ria).
“The Right to Strike in Respect of Employment Relationships and Col‑
lective Bargaining.”
Dissertation.
University of Pretoria, April 2014.
JDN.
https://repository.up.ac.za/bitstream/handle/2263/43163/Malebye_Right_2014.pdf?
sequence=1
Although the right to strike is enshrined in section 23(2)(c) of the Constitution, that right
is not absolute and may be limited in terms of a law of general application to the extent
that such limitation may be reasonable and justifiable in an open and democratic society.
It is widely recognised, both in this country and abroad, that in certain circumstances,
it will be reasonable and justifiable to limit the right to strike, particularly in times of
national emergency or in services where a strike is likely to harm the public.110 In some
countries like Canada, France and Italy, limitations on strikes in essential services are
confined to the public sector, based on the notion that it is only the government which
provides services, whose absence will endanger the community’s safety.111 The differ‑
entiation of workers should be made according to the functions they perform and not
according to the nature of their employer’s legal status. This is so because a service pro‑
vided by a worker in a private sector may be more harmful to the public compared to a
service provided by a public sector worker.112
The developing nations, in particular, have tended to take a broad view of the concept
of essential services. In the Philippines, the definition includes “companies engaged in
the generation or distribution of energy, banks, hospitals and exportorientated indus‑
tries. In 1983, semiconductor electronics was added to the list. South Korea includes
stock transaction and banking business. The list in Malaysia is extremely extensive
covering maintenance and functioning of the Armed Forces and Royal Malaysian Po‑
lice Force, and business and industries which are connected with the defence and secu‑
rity of Malaysia.113 The inclusion of services which affect the economy is not confined
to developing countries. In 1976 the New Zealand definition was extended to”export
slaughterhouses”. Various countries, both industrialised and developing, have recently
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included in their list of essential services certain financial operations such as those car‑
ried out by banks and foreign exchange offices.114
Countries in Asia, Africa, Latin America and the Caribbean have tended to adopt the
enumeration method. By contrast, Western countries generally allow special provisions
to be invoked if industrial action is deemed by a particular person or body to threaten
particular consequences. In France, the Government can requisition strikers employed
in a service or an enterprise regarded as indispensable to provide for the needs of the
nation.115 Countries will differ in what they consider essential services. Morris says
the necessity for continuous provision of a service in any given country depends upon
a variety of geographical, environmental and technological factors.
The right to strike has practical limits in industries essential to the general welfare
Patch 37
B.W. Patch (Analyst for Editorial Research Reports, a non‑partisan policy research plat‑
form). “Restrictions on the right to strike.” Editorial Research Reports, 1937 (Vol. II).
JDN. https://library.cqpress.com/cqresearcher/document.php?id=cqresrre1937071000
Considerations of a practical, if not of a legal, nature limit the right to strike of employ‑
ees in the public service and in industries affected with a public interest. Attempts to
coerce governmental employers by use of the strike weapon have been rare in American
history. Constituting in the last resort a challenge to the supremacy of public author‑
ity, they are almost certain to encounter a hostile public opinion. The public reaction to
strikes by employees of public utilities or of other industries whose services cannot be
interrupted without inflicting widespread loss or suffering upon persons unconnected
with the controversy may be no less severe. It is in such cases as the latter that govern‑
ment authority may be forced sooner or later to intervene in behalf of the superior rights
of the public.
The courts have recognized that “an employer in engaging in a public service becomes
obligated to the public for the performance of that service in the interest of the general
welfare.”11 In view of that fact, it has been suggested that the legal position of a per‑
son accepting employment in a public utility cannot be distinguished from that of the
proprietor. In a case involving a threatened sympathetic strike by railroad workers, a
federal court pointed out in 1893 that there were limitations on the right to strike arising
from the superior interests of the public. And in 1917, as mentioned, the Supreme Court
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held that the right to strike was “necessarily subject to limitation when employment is
accepted in a business charged with a public interest.”
The extent of such limitations from a legal standpoint is uncertain. They nevertheless
have a practical reality, derived from the fact that in any serious conflict between private
and public rights, public rights will be deemed superior. From mere considerations of
strategy, labor cannot afford in any strike action to encroach too far upon the interests
and convenience of the public. If it does, it loses public sympathy and probably the
strike.
An unconditional right for essential workers to strike would put innocent lives at
risk
Graham 63
James Graham (A.B., Fordham University; LL.B., St. John’s University). “A Reconsider‑
ation of the Right to Strike.” The Catholic Lawyer, Volume 9, Number 2, Spring 1963.
JDN. https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1434&context=tcl
In September 1962, a strike by the American Federation of Television and Radio Artists
(AFTRA) blacked out New York City’s first educational television station on its opening
night. Whatever the merits of the dispute, AFTRA’s conduct in this case constituted
at best a brutal and unnecessary demonstration of economic strength which certainly
made no friends for organized labor. It is only fair to add, however, that a double stan‑
dard seems to prevail on the question of strikes. Last summer, we witnessed instances
of direct action by the medical profession which, in the opinion of this writer, were more
outrageous than anything ever contemplated by organized labor. Some doctors in New
Jersey threatened to strike against the medicare plan of the Kennedy administration;
most of the doctors in the Saskatchewan Province of Canada did in fact strike, obvi‑
ously for other reasons. Yet criticism of either group in responsible publications, when
compared with the usual reactions to a strike of milk deliverers, for example, was sur‑
prisingly mild. Even adverse criticism of the conduct of the Canadian doctors was often
tempered with the curious assurance to readers that ”emergency” care was being pro‑
vided during the strike. Statistics may never be made available but the fallacy here be‑
comes evident when we consider the not‑so‑remote possibility that a citizen or citizens
of Saskatchewan might have died from cancer discovered two weeks too late because
at the time of the first complaint, the patient’s doctor was exercising his common‑law
103
5 Evidence
right to strike. Though not an ”emergency” case ab initio, the hypothetical patient died
all the same.
104
5 Evidence
5.3.2 Economy
Strikes cause widespread economic harm
McElroy 19
John McElroy (editorial director of Blue Sky Productions and producer of ”Autoline”
for WTVS‑Channel 56 Detroit and ”Autoline Daily” the online video newscasts).
“Strikes Hurt Everybody.”
Wards Auto Industry News.
25 October 2019.
JDN.
https://www.wardsauto.com/ideaxchange/strikes‑hurt‑everybody
But strikes don’t just hurt the people walking the picket lines or the company they’re
striking against. They hurt suppliers, car dealers and the communities located near the
plants.
The Anderson Economic Group estimates that 75,000 workers at supplier companies
were temporarily laid off because of the GM strike. Unlike UAW picketers, those sup‑
plier workers won’t get any strike pay or an $11,000 contract signing bonus. No, most
of them lost close to a month’s worth of wages, which must be financially devastating
for them.
GM’s suppliers also lost a lot of money. So now they’re cutting budgets and delaying
capital investments to make up for the lost revenue, which is a further drag on the econ‑
omy.
According to CAR, the communities and states where GM’s plants are located col‑
lectively lost a couple of hundred million dollars in payroll and tax revenue. Some
economists warn that if the strike were prolonged it could knock the state of Michigan –
home to GM and the UAW – into a recession. That prompted the governor of Michigan,
Gretchen Whitmer, to call GM CEO Mary Barra and UAW leaders and urge them to
settle as fast as possible.
So, while the UAW managed to get a nice raise for its members, the strike left a path of
destruction in its wake. That’s not fair to the innocent bystanders who will never regain
what they lost.
Strikes are harmful to developing economies
Tenza 20
105
5 Evidence
Mlungisi Tenza (Senior Lecturer, University of KwaZulu‑Natal). “The effects of violent
strikes on the economy of a developing country: a case of South Africa.” Obiter vol.41
n.3 Port Elizabeth 2020. JDN. http://www.scielo.org.za/scielo.php?script=sci_arttext
&pid=S1682‑58532020000300004
Economic growth is one of the most important pillars of a state. Most developing states
put in place measures that enhance or speed‑up the economic growth of their coun‑
tries. It is believed that if the economy of a country is stable, the lives of the people
improve with available resources being shared among the country’s inhabitants or cit‑
izens. However, it becomes difficult when the growth of the economy is hampered by
the exercise of one or more of the constitutionally entrenched rights such as the right
to strike.1 Strikes in South Africa are becoming more common, and this affects busi‑
nesses, employees and their families, and eventually, the economy. It becomes more
dangerous for the economy and society at large if strikes are accompanied by violence
causing damage to property and injury to people. The duration of strikes poses a prob‑
lem for the economy of a developing country like South Africa. South Africa is rich in
mineral resources, the world’s largest producer of platinum and chrome, the second‑
largest producer of zirconium and the third‑largest exporter of coal. It also has the
largest economy in Africa, both in terms of industrial capacity and gross domestic prod‑
uct (GDP).2 However, these economic advantages have been affected by protracted and
violent strikes.3 For example, in the platinum industries, labour stoppages since 2012
have cost the sector approximately R18 billion lost in revenue and 900 000 oz in lost
output. The five‑month‑long strike in early 2014 at Impala Platinum Mine amounted to
a loss of about R400 million a day in revenue.4 The question that this article attempts to
address is how violent strikes and their duration affect the growth of the economy in a
developing country like South Africa. It also addresses the question of whether there is
a need to change the policies regulating industrial action in South Africa to make them
more favourable to economic growth.
Recent strikes in South Africa demonstrate the potential for large scale economic
harm
Tenza 20
Mlungisi Tenza (Senior Lecturer, University of KwaZulu‑Natal). “The effects of violent
strikes on the economy of a developing country: a case of South Africa.” Obiter vol.41
n.3 Port Elizabeth 2020. JDN. http://www.scielo.org.za/scielo.php?script=sci_arttext
106
5 Evidence
&pid=S1682‑58532020000300004
When South Africa obtained democracy in 1994, there was a dream of a better country
with a new vision for industrial relations.5 However, the number of violent strikes that
have bedevilled this country in recent years seems to have shattered‑down the aspira‑
tions of a better South Africa. South Africa recorded 114 strikes in 2013 and 88 strikes in
2014, which cost the country about R6.1 billion according to the Department of Labour.6
The impact of these strikes has been hugely felt by the mining sector, particularly the
platinum industry. The biggest strike took place in the platinum sector where about 70
000 mineworkers’ downed tools for better wages. Three major platinum producers (Im‑
pala, Anglo American and Lonmin Platinum Mines) were affected. The strike started on
23 January 2014 and ended on 25 June 2014. Business Day reported that ”the five‑month‑
long strike in the platinum sector pushed the economy to the brink of recession”.7 This
strike was closely followed by a four‑week strike in the metal and engineering sector.
All these strikes (and those not mentioned here) were characterised with violence ac‑
companied by damage to property, intimidation, assault and sometimes the killing of
people. Statistics from the metal and engineering sector showed that about 246 cases
of intimidation were reported, 50 violent incidents occurred, and 85 cases of vandalism
were recorded.8 Large‑scale unemployment, soaring poverty levels and the dramatic
income inequality that characterise the South African labour market provide a broad
explanation for strike violence.9 While participating in a strike, workers’ stress levels
leave them feeling frustrated at their seeming powerlessness, which in turn provokes
further violent behaviour.10
These strikes are not only violent but take long to resolve. Generally, a lengthy strike
has a negative effect on employment, reduces business confidence and increases the risk
of economic stagflation. In addition, such strikes have a major setback on the growth
of the economy and investment opportunities. It is common knowledge that consumer
spending is directly linked to economic growth. At the same time, if the economy is not
showing signs of growth, employment opportunities are shed, and poverty becomes
the end result. The economy of South Africa is in need of rapid growth to enable it to
deal with the high levels of unemployment and resultant poverty.
One of the measures that may boost the country’s economic growth is by attracting po‑
tential investors to invest in the country. However, this might be difficult as investors
would want to invest in a country where there is a likelihood of getting returns for
their investments. The wish of getting returns for investment may not materialise if the
labour environment is not fertile for such investments as a result of, for example, unsta‑
107
5 Evidence
ble labour relations. Therefore, investors may be reluctant to invest where there is an
unstable or fragile labour relations environment.
108
5 Evidence
5.3.3 Consumer Confidence
Strikes destroy consumer confidence in business
Tenza 20
Mlungisi Tenza (Senior Lecturer, University of KwaZulu‑Natal). “The effects of violent
strikes on the economy of a developing country: a case of South Africa.” Obiter vol.41
n.3 Port Elizabeth 2020. JDN. http://www.scielo.org.za/scielo.php?script=sci_arttext
&pid=S1682‑58532020000300004
The relationship between the business of the employer and its customers is based on
loyalty and confidence. The employer is expected to keep this relationship going by
supplying goods or deliver services to clients when needed. It is expected that this
would take place without disturbance. However, during strikes or conduct in further‑
ance of a strike, this relationship gets affected since the level of production or service
delivery is reduced or does not take place.
It is well known that the continued existence of a business relies on customers’ satis‑
faction with services or goods provided. A business that does not have customers can
hardly survive as they are the backbone of the business. If a strike is violent and takes
long to resolve, this may chase away customers or clients as the possibility of not get‑
ting what they want is high if less or no production takes place. The possibility that
customers could shift loyalty to other businesses doing the same business as the em‑
ployer is high. The end result is that a prolonged strike has the potential of chasing
away customers or clients as they may not want to associate themselves with a business
environment that poses a risk to their lives. In addition, customers may want to share
solidarity with employees and refuse to associate with a business whose employees are
on strike. To stop this from taking place, the employer and the union need to speed
up the process of resolving their dispute through a non‑violent mechanism such as a
collective bargaining process.
109
5 Evidence
5.3.4 Unemployment
The threat of strikes reduces employment
Malebye 14
Cynthia Dithato Malebye (Department of Mercantile Law, University of Preto‑
ria).
“The Right to Strike in Respect of Employment Relationships and Col‑
lective Bargaining.”
Dissertation.
University of Pretoria, April 2014.
JDN.
https://repository.up.ac.za/bitstream/handle/2263/43163/Malebye_Right_2014.pdf?
sequence=1
3. Impact of Strikes and Collective Bargaining on Unemployment and the Economy
Employment provides stability, dignity and economic freedom to individuals. South
Africa has one of the highest rates of unemployment in the world. The unemployment
rate has recently been increased by the loss of approximately a million jobs during the
recession. Labour unrest is another major contributor. Collective bargaining at sectoral
level between large incumbent firms and labour unions where parties make deals that
suit each other to the exclusion of those without jobs has been pointed out as a con‑
tributor to unemployment.262 Wage increases above inflation, militant labour and an
inflexible labour regime have been pointed out as developments that will, over time, re‑
sult in companies thinking twice about expanding their labour force, rather than opting
for mechanisation.263 The extension of bargaining councils’ agreements to non‑parties
in terms of section 32 of the Act has been criticised as failing to take into account posi‑
tions of small firms that might not afford labour costs and could be forced to reduce the
labour force or close the business.264
Unemployment has reverberating harms to all of society
Tenza 20
Mlungisi Tenza (Senior Lecturer, University of KwaZulu‑Natal). “The effects of violent
strikes on the economy of a developing country: a case of South Africa.” Obiter vol.41
n.3 Port Elizabeth 2020. JDN. http://www.scielo.org.za/scielo.php?script=sci_arttext
&pid=S1682‑58532020000300004
South Africa’s primary source of income is through employment; the state relies heavily
on the income taxes it collects from employed people. The implication is that unemploy‑
ment has a negative effect on the state while if more people are employed, their income
110
5 Evidence
tax will add to the government’s coffers. Unemployment means that people are unable
to support themselves and their families, conversely the state has an obligation of en‑
suring that such people sustainable means in the form of social assistance.33 The state,
together with the private sector, bears the responsibility of alleviating poverty in society.
Unemployment is a real contributor to poverty. Other factors that contribute to poverty
include a general lack of education, lack of relevant skills in certain areas such as science,
inequality, inherited past practices and structural problems such as low wages support‑
ing big families, low domestic savings, the ongoing electricity shortage from 2013 to
2015 threatening investors, low levels of business confidence, severe drought, reduced
fiscal capacity, and the growing risk of stagflation. In addition, a lengthy strike comes
with a threat of job losses in vulnerable sectors such as mining, metals and agriculture.
It is also believed that protracted strikes contribute towards weakening the country’s
local currency (the South African rand). All these factors put a strain on the already
struggling economy of South Africa.
111
5 Evidence
5.3.5 Violence
If unrestricted, strikes can lead to violence against innocent people
Tenza 20
Mlungisi Tenza (Senior Lecturer, University of KwaZulu‑Natal). “The effects of violent
strikes on the economy of a developing country: a case of South Africa.” Obiter vol.41
n.3 Port Elizabeth 2020. JDN. http://www.scielo.org.za/scielo.php?script=sci_arttext
&pid=S1682‑58532020000300004
Even though the right to strike and the right to participate in the activities of a trade
union that often flow from a strike 17 are guaranteed in the Constitution and specifically
regulated by the LRA, it sometimes happens that the right to strike is exercised for pur‑
poses not intended by the Constitution and the LRA, generally.18 For example, it was
not the intention of the Constitutional Assembly and the legislature that violence should
be used during strikes or pickets. As the Constitution provides, pickets are meant to be
peaceful.19 Contrary to section 17 of the Constitution, the conduct of workers participat‑
ing in a strike or picket has changed in recent years with workers trying to emphasise
their grievances by causing disharmony and chaos in public. A media report by the
South African Institute of Race Relations pointed out that between the years 1999 and
2012 there were 181 strike‑related deaths, 313 injuries and 3,058 people were arrested for
public violence associated with strikes.20 The question is whether employers succumb
easily to workers’ demands if a strike is accompanied by violence? In response to this
question, one worker remarked as follows:
”[T]here is no sweet strike, there is no Christian strike ... A strike is a strike. [Y]ou want
to get back what belongs to you ... you won’t win a strike with a Bible. You do not wear
high heels and carry an umbrella and say ’1992 was under apartheid, 2007 is under
ANC’. You won’t win a strike like that.”21
The use of violence during industrial action affects not only the strikers or picketers,
the employer and his or her business but it also affects innocent members of the pub‑
lic, non‑striking employees, the environment and the economy at large. In addition,
striking workers visit non‑striking workers’ homes, often at night, threaten them and
in some cases, assault or even murder workers who are acting as replacement labour.22
This points to the fact that for many workers and their families’ living conditions re‑
main unsafe and vulnerable to damage due to violence. In Security Services Employers
Organisation v SA Transport & Allied Workers Union (SATAWU),23 it was reported
112
5 Evidence
that about 20 people were thrown out of moving trains in the Gauteng province; most
of them were security guards who were not on strike and who were believed to be tar‑
geted by their striking colleagues. Two of them died, while others were admitted to hos‑
pitals with serious injuries.24In SA Chemical Catering & Allied Workers Union v Check
One (Pty) Ltd,25striking employees were carrying various weapons ranging from sticks,
pipes, planks and bottles. One of the strikers Mr Nqoko was alleged to have threatened
to cut the throats of those employees who had been brought from other branches of
the employer’s business to help in the branch where employees were on strike. Such
conduct was held not to be in line with good conduct of striking.26
Governments can legitimately prohibit violent strikes
Tenza 20
Mlungisi Tenza (Senior Lecturer, University of KwaZulu‑Natal). “The effects of violent
strikes on the economy of a developing country: a case of South Africa.” Obiter vol.41
n.3 Port Elizabeth 2020. JDN. http://www.scielo.org.za/scielo.php?script=sci_arttext
&pid=S1682‑58532020000300004
4 1 Strikes should only be allowed to continue if they are lawful
The definition of ”strike” lends itself any obstruction of work that is lawful.51So, if
workers refuse to undertake ”work” that is illegal and unlawful, this will not consti‑
tute a strike.52 Where employees refuse to work in support of an unlawful demand
(for example the removal of a supervisor without following due process), this will also
not constitute a strike.53 Therefore, where the action involved does not constitute a
strike, participants do not enjoy the protection offered by section 67(1) of the LRA.54 If
the means used by strikers to obstruct work constitute unlawful conduct such as vio‑
lence,55then the conduct will not qualify as a strike, and will thus not be protected.55 If
a strike becomes violent and no longer pursues legitimate or lawful demands, the court
should intervene as violent and unruly conduct is the antithesis of the aim of a strike,
which is to persuade the employer through peaceful withholding of work to agree to
the union’s demands.56 For a court to intervene, Rycroft argues that the following ques‑
tion needs to be asked: ”has the misconduct taken place to an extent that the strike no
longer promotes functional to collective bargaining, and is therefore no longer deserving
of its protected status.”57 The Labour Court in National Union of Food Beverage Wine
Spirits & Allied Workers v Universal Product Network (Pty) Ltd58adopted Rycroft’s
functionality test which entails that the Labour Court could assume the power to alter
113
5 Evidence
the59protected status of a strike to unprotected action on the basis of violence.59 This
entails the weighing up of the level of violence against the efforts of the trade union
to curb it in order for a court to determine whether a strike’s protected status is still
functional to collective bargaining.60
Rycroft further argues that there is an inseparable link between strikes and functional
collective bargaining and justifies this on three grounds. First, the Interim Constitu‑
tion of South Africa 200 of 1993 provided that ”workers have the right to strike for the
purposes of collective bargaining.”61 Secondly, strikes must be orderly. And lastly, the
strike must not involve misconduct. This he infers from the fact that employees engaged
in misconduct can be dismissed irrespective of whether the strike is protected or not.62
Informed by the decision of Afrox Ltd v SACWU 2,63Rycroft argues that a strike can
lose its protection if it is no longer functional to collective bargaining. So if a strike is
no longer functional to collective bargaining, it is bound to lose protection, and those
who participate in such activities will face dismissal or an action for damages can be
instituted against those responsible.
Courts ought to deny legal protection to violent strikes
Tenza 20
Mlungisi Tenza (Senior Lecturer, University of KwaZulu‑Natal). “The effects of violent
strikes on the economy of a developing country: a case of South Africa.” Obiter vol.41
n.3 Port Elizabeth 2020. JDN. http://www.scielo.org.za/scielo.php?script=sci_arttext
&pid=S1682‑58532020000300004
In this regard, a proposal can be made in this article for the Labour Court to intervene
and suspend industrial action that is accompanied by violence. When making the order,
the Labour Court should take the following factors into account: the extent to which the
protected industrial action threatens to damage the ongoing viability of a business car‑
ried on by the person; the disruption in the supply of goods or services to an enterprise
or business; and the failure of the employees to fulfil their contractual duties in terms
of the contract of employment with the employer which result in economic loss.
This is echoed by Cheadle when he states that it would be possible where the action is
”accompanied by egregious conduct”.91 On the question of how will this work in prac‑
tice, the article proposes that the affected party may lodge an urgent application to the
Labour Court in terms of section 158(1)(a)(iv) to declare a strike or conduct in further‑
ance or contemplation of a strike not functional to collective bargaining and therefore
114
5 Evidence
unprotected as a result of damage and chaos and anarchy it has caused. On the basis
of evidence provided before the court, including the degree of violence, the court may
exercise its discretion to declare or not declare the strike unprotected. Most importantly,
the task of the court will be to determine if the strike is still functional to collective bar‑
gaining or not. If the answer is in the negative, chances are that it will grant an order
declaring the strike unprotected and the consequences for participating in an unpro‑
tected strike will follow.
115
5 Evidence
5.3.6 Arbitration
Prolonged strikes harm the economy
Pule 14
Albert Pule (Writer at GCIS South Africa).
omy.”
“Lengthy strikes bad for the econ‑
Government Communication and Information System.
May 2014.
JDN.
https://www.vukuzenzele.gov.za/lengthy‑strikes‑bad‑economy
Strikes that continue for a long time have a negative impact on the economy and do not
benefit anyone
Prolonged strikes hurt both the employer and employees and also have a negative im‑
pact on the country’s economy.
This is according to the Department of Labour, which added that wages lost because of
strikes went up from R6.6 billion in 2012 to R6.7 billion in 2013. ”There are no winners
in prolonged strikes. They hurt both employers and employees the same ‑ employers
lose income while trade unions or employees lose wages, which is hard to recover after
a prolonged industrial action.
“Strikes also have a negative impact on government’s efforts to create jobs,” the Depart‑
ment of Labour said.
In the past few years, the country has been gripped by a wave of strikes resulting in the
destruction of property, loss of income and lives.
In an effort to prevent strikes and deal with the violence accompanying them, the de‑
partment will discuss the introduction of a system of compulsory negotiations with its
social partners at the National Economic Development and Labour Council (NEDLAC).
Governments can impose mandatory arbitration to curtail the impact of prolonged
strikes
Tenza 20
Mlungisi Tenza (Senior Lecturer, University of KwaZulu‑Natal). “The effects of violent
strikes on the economy of a developing country: a case of South Africa.” Obiter vol.41
n.3 Port Elizabeth 2020. JDN. http://www.scielo.org.za/scielo.php?script=sci_arttext
&pid=S1682‑58532020000300004
116
5 Evidence
4 2 Introducing interest arbitration
As stated above, a strike that takes an unreasonably long period of time to get resolved
has devastating effects on the business, customers, economy and employment thereby
perpetuating poverty which has severe effects on the lives of people. The question that
arises is how to put a stop to a strike that is taking too long to get resolved. The article
argues that the introduction of interest arbitration could be used to stop strikers from
continuing with violent industrial action. Interest arbitration gives the court or similar
structure the power to intervene and force the parties to find a solution to their problem.
Interest arbitration gives the parties an option to agree on mechanisms that will termi‑
nate industrial action once it becomes violent or cause damage to property. This is not
yet applicable in South Africa and it is submitted that the LRA needs to be amended to
include a provision on interest arbitration.
In Canada, if a strike continues longer than expected with no solution forthcoming,
Canadian law provides certain mechanisms for ending the dispute.64 The Canadian
Labour Code confers certain powers on elected officials to intervene where there is a
compelling public interest in doing so65 Interest arbitration as a remedy is used in peri‑
ods of prolonged strikes, particularly where a work stoppage has the potential to inter‑
fere with ”public safety, public health or the general economic health of the nation.”66
The parties to a dispute have to first agree on an arbitrator and if they fail to do so, the
Minister of Labour will appoint an arbitrator in terms of legislation.67The Minister has
the discretion to refer the matter regarding the maintenance of industrial peace to either
the Canadian Industrial Relations Board or direct the Board to do what he or she deems
necessary as authorised by the Canadian Labour Code.68 The Minister is also empow‑
ered to do what he or she deems expedient to maintain industrial peace and promote
conditions favourable to the settlement of industrial disputes.69
Borrowing from Canada the concept of interest arbitration, South Africa will have to
amend the Labour Relations Act to include such a provision. Interest arbitration gives
the parties an option to agree on mechanisms that will terminate industrial action once
it becomes violent or cause damage to property. The article suggests that this will assist
in reducing the number of protracted strikes and the negative impact that these strikes
have on the economy.
Mandatory arbitration is the best means for reining in prolonged strikes
Tenza 20
117
5 Evidence
Mlungisi Tenza (Senior Lecturer, University of KwaZulu‑Natal). “The effects of violent
strikes on the economy of a developing country: a case of South Africa.” Obiter vol.41
n.3 Port Elizabeth 2020. JDN. http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682‑
58532020000300004
5 CONCLUSION
The right to strikes is important in a democratic country such as South Africa. However,
it becomes difficult if such strikes take place too often, damaging the economy and loss
of jobs which are the main sources of income in many families. Various sectors are
affected by the effects of violent and lengthy strikes. Most importantly, the economy
is affected with the result that poverty becomes the consequence. Therefore, the issue
of numerous strikes which are also violent needs to be addressed by including interest
arbitration to compel parties to resolve their issues and empower the Labour Court to
intervene and suspend the strike or picket. In Australia, the Fair Works Commission
is empowered to terminate industrial action where it is seen that the economy may be
affected due to prolonged strikes. This article argues that interest arbitration can be
added into the LRA to make it easy for the affected parties to approach the Labour
Court to suspend violent industrial action. Adopting this route will prevent the loss
of many jobs as a result of the business not making profit and effect retrenchments. If
interest arbitration is made law in South Africa there will be more advantages to strikes
than we currently have.
118
5 Evidence
5.3.7 AT: Unconditional
The right to strike cannot be unconditional as it must be balanced against other
social interests
Malebye 14
Cynthia Dithato Malebye (Department of Mercantile Law, University of Preto‑
ria).
“The Right to Strike in Respect of Employment Relationships and Col‑
lective Bargaining.”
Dissertation.
University of Pretoria, April 2014.
JDN.
https://repository.up.ac.za/bitstream/handle/2263/43163/Malebye_Right_2014.pdf?
sequence=1
Industrial action is a powerful weapon which employees can utilize against the em‑
ployer in instances where a dispute cannot be resolved by negotiations. Although it has
adverse effect for both parties in the employment relationship, it is at times essential
to achieve certain goals. Denying employees the right to strike amounts to them being
deprived of the important tool to be utilized against the employer. If a party cannot
bargain or cannot bargain in good faith, even after the rights as provided for by the Act
have been exercised, the option is industrial action.
The right to strike is never absolute or unconditional since the exercise of this right can
conflict with the interest of the larger society, especially where essential services are
affected. Under certain circumstances strikes could lead to the collapse and bankruptcy
of the employer with a resultant loss of job opportunities and devastating consequences
on the local community, hence it is necessary to have this right regulated by statute.
The right to strike is not absolute, given reasonable alternatives
Graham 63
James Graham (A.B., Fordham University; LL.B., St. John’s University). “A Reconsider‑
ation of the Right to Strike.” The Catholic Lawyer, Volume 9, Number 2, Spring 1963.
JDN. https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1434&context=tcl
We need not conclude from all this that the right to strike is, or should be, obsolete.
Proposed alternatives which have been successful in other nations, such as compulsory
arbitration and the formation of a Labor Party, might prove unworkable here and even
obnoxious to the American eco‑political system. It is also true that in this country most
119
5 Evidence
employers will never welcome unions with open arms and in the last analysis, despite
the protections and prohibitions of the federal and state labor statutes, unions, in most
cases, will be forced to resort to a show of economic strength to force recognition and/or
just bargaining demands upon recalcitrant employers. But the point sought to be made
here is that the right to strike is by no means absolute. A democratic desire to sym‑
pathize with the ”underdog” should not obscure the fact that the entire community,
including employers, has a legitimate interest in industrial peace. Mr. Justice Brennan
argued in his vigorous dissenting opinion in the Sinclair case that the justification for the
Norris‑LaGuardia Act in 1932 was that federal court injunctions had stripped unions
of their strike weapon without substituting any reasonable alternative. However, an
agreement, freely made, to arbitrate all disputes arising during the term of the contract
obviously does offer such an alternative.
An overly broad right to strike can impede union representatives
Graham 63
James Graham (A.B., Fordham University; LL.B., St. John’s University). “A Reconsider‑
ation of the Right to Strike.” The Catholic Lawyer, Volume 9, Number 2, Spring 1963.
JDN. https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1434&context=tcl
Ironically enough, the Sinclair decision will also add to the woes of many harassed
union leaders. It is unfortunate but true that those labor organizations which are most
democratic in their internal affairs are often most guilty of illegal strike activities; either
the leaders cannot control dissident elements in the ranks or, facing re‑election diffi‑
culties, must cater to the desire of the members for dramatic action to protest real or
imagined grievance. In the past, the threat of an imminent injunction has been urged
when necessary by union officials, without losing face, as a compelling reason for re‑
sorting to arbitration rather than a work stoppage for satisfaction of the grievance. It
is quite likely that in the next few years, Congress will avoid the effect of the Sinclair
decision by either amending the venerable Norris‑LaGuardia Act or, more likely, by
amending the NLRA to make an unjustified breach of a no strike clause an unfair labor
practice, enjoinable at the discretion of the NLRB. In certain vital industries or occupa‑
tions, compulsory arbitration may be the necessary alternative to strikes of any kind.
Teachers and hospital workers, for example, who in effect are denied the right to strike
under all circumstances, should not be forced to rely solely on the generosity or political
sensibilities of public officials for redress.
120
5 Evidence
5.3.8 ILO Agrees
The International Labour Organization’s Committee of Experts acknowledges
limits on the right to strike
Hofmann and Schuster 16
Claudia Hofmann (research associate at the Chair for Public Law and Policy at the Uni‑
versity of Regensburg) and Norbert Schuster (lawyer in Berlin and teaches at the Uni‑
versity of Bremen). “It ain’t over ’til it’s over: The right to strike and the mandate of the
ILO Committee of Experts revisited.” Global Labour University Working Paper, No. 40.
February 2016. JDN. https://www.econstor.eu/bitstream/10419/156305/1/849539382.pdf
The Committee of Experts certainly does not give unconditional recognition to the right
to strike. It includes restrictions. These mainly concern the modalities of a strike, the as‑
sessment of political strikes, so‑called sympathy strikes, and not least the right to strike
in public services.38 This approach shows just how much the Committee also takes the
justified interests of the employer side into account and tries, in this way, to bring them
into harmony with the interests of the workers’ side, thus helping to ensure optimum
impact for both positions. An analogy would be the securing of “practical concordance”
in constitutional law. Thus, the Committee tries to take a balanced view, guided by
international standards. Most Member States that have ratified Convention 87 have
explicitly written a right to strike into their constitutions. Equally, the case law from na‑
tional and international courts does not leave room for denying the right to strike.39 For
instance, Art 9.3 of the German Basic Law provides “only” for freedom of association.
Industrial disputes are mentioned in sentence 3 of Art 9.3 of the German Basic Law; a
right to engage in such disputes is, however, not laid down in this provision. Nonethe‑
less, although few would suspect the Federal Labour Court of strike‑happiness, it has
never, since it was first established in 1954, denied the existence of a constitutional right
to strike. 40 The Federal Constitutional Court takes a similar line.41 Nobody disputes
that employees and their trade unions need this right as compensation, at least in part,
for their structurally disadvantaged position and therefore as a means of last resort for
the improvement of their employment conditions.
121
5 Evidence
5.3.9 Labor Relations
Strikes sow animus and harm labor relations
McElroy 19
John McElroy (editorial director of Blue Sky Productions and producer of ”Autoline”
for WTVS‑Channel 56 Detroit and ”Autoline Daily” the online video newscasts).
“Strikes Hurt Everybody.”
Wards Auto Industry News.
25 October 2019.
JDN.
https://www.wardsauto.com/ideaxchange/strikes‑hurt‑everybody
The recent strike at General Motors shows traditional labor practices must change. Not
only did the strike cause considerable financial damage at GM, it drove another wedge
between the company and its workers. And worst of all, it hurt a lot of innocent by‑
standers.
Thanks to the UAW, the hourly workforce at GM earns the highest compensation in the
U.S. auto industry. But you would never know that by listening to union leaders. They
attack GM as a vile and heartless corporation that deliberately tries to oppress honest
working men and women.
Of course, they kind of have to say that. Union officials are elected, not appointed, and
they are just as political as any Republican or Democrat. No UAW official ever got
elected by saying, “You know what? Management is right. We’ve got to make sure our
labor costs are competitive.”
It’s the opposite. Union leaders get elected by attacking management’s greed and arro‑
gance.
This creates a poisonous relationship between the company and its workforce. Many
GM hourly workers don’t identify as GM employees. They identify as UAW members.
And they see the union as the source of their jobs, not the company. It’s an unhealthy dy‑
namic that puts GM at a disadvantage to non‑union automakers in the U.S. like Honda
and Toyota, where workers take pride in the company they work for and the products
they make.
122
5 Evidence
5.3.10 Counter‑Productive
Strikes are counter‑productive and harm job security
McElroy 19
John McElroy (editorial director of Blue Sky Productions and producer of ”Autoline”
for WTVS‑Channel 56 Detroit and ”Autoline Daily” the online video newscasts).
“Strikes Hurt Everybody.”
Wards Auto Industry News.
25 October 2019.
JDN.
https://www.wardsauto.com/ideaxchange/strikes‑hurt‑everybody
Attacking the company in the media also drives away customers. Who wants to buy a
shiny new car from a company that’s accused of underpaying its workers and treating
them unfairly?
Data from the Center for Automotive Research (CAR) in Ann Arbor, MI, show that GM
loses market share during strikes and never gets it back. GM lost two percentage points
during the 1998 strike, which in today’s market would represent a loss of 340,000 sales.
Because GM reports sales on a quarterly basis we’ll only find out at the end of December
if it lost market share from this strike.
UAW members say one of their greatest concerns is job security. But causing a company
to lose market share is a sure‑fire path to more plant closings and layoffs.
123
5 Evidence
5.3.11 No‑Strikes Clauses
No‑strikes Clauses can benefit union power and prevent wildcat strikes
ILJ 55
Indiana Law Journal. “Section 8(d) 4 Limitations on the Right to Strike: A Criticism.” 30
Ind. L.J. 538 (Summer 1955). JDN. http://ilj.law.indiana.edu/articles/30_4_Section‑8d4‑
Limitations‑on‑the‑Right‑to‑Strike‑A‑Criticism.pdf
A legislative prohibition of strikes lacks the beneficial effects of a voluntary no‑strike
clause since the real purpose of a no‑strike clause is to secure the promise of union lead‑
ership, not only to refrain from calling strikes, but also to cooperate with the company
in preventing and controlling unauthorized wildcat strikes.45 The former is the less im‑
portant purpose, since responsible union leaders do not call strikes in violation of a
contract which was negotiated by them; this is especially true in view of the liability im‑
posed upon the unions by section 301. Wildcat strikes constitute one of the most serious
problems in labor relations.46 Congressional prohibition would be completely ineffec‑
tive against such strikes;4 the only effective method of suppressing them is through
responsible and powerful union leadership. The acceptance of union security clauses
by management representatives indicates an awareness of the union’s importance in re‑
solving these conflicts. Only under such an arrangement can union leaders maintain the
discipline which is so essential to the avoidance of unauthorized strikes.4 ” The Wilson
case, by embodying a no‑strike clause in every collective bargaining agreement, largely
eliminates this important function of union leadership. 9
124
5 Evidence
5.3.12 AT: Bargaining Power
Violent strikes create an unequal bargaining position in favor of unions by means
of economic duress
Tenza 20
Mlungisi Tenza (Senior Lecturer, University of KwaZulu‑Natal). “The effects of violent
strikes on the economy of a developing country: a case of South Africa.” Obiter vol.41
n.3 Port Elizabeth 2020. JDN. http://www.scielo.org.za/scielo.php?script=sci_arttext
&pid=S1682‑58532020000300004
Strike violence has been described b4y5 the International Labour Organisation (ILO) as
abuse of the right to strike.45 The Labour Court has labelled strike violence as ”collec‑
tive brutality”.46 The reasons for the use of these terms in relation to strike violence is
the consequence that comes with it such as the scaring away of non‑striking employ‑
ees and replacement labour hired to continue with production while the employer’s
workforce is out on strike. Therefore, in all instances where violence prevents the en‑
gagement of replacement labour or scare away non‑strikers from work, the employer
is made to suffer an illegitimate increase in collective bargaining power from the side
of the strikers. This is not only because violence effectively increases participation in
the bargaining process, but also because non‑strikers must still be paid as they avail
themselves for work.47 In instances where violence gets completely out of control, it
scares the employer into a settlement. Myburgh argues that the perpetuation of violent
strikes in the context of protected strikes skews collective bargaining power and takes
the form of economic duress.48 As a result of violence, the employer feels obliged to
increase its wage offer or accede to union demands, not because of pressure brought to
bear by collective bargaining and strike action per se. The effect of this is not to advance
economic development in line with the purpose of the LRA.49 In fact, the strike fuels
violence, which then becomes the focal point of the strike. The employer is then placed
under economic pressure to conclude a wage agreement at a wage level that does not
reflect the forces of supply and demand, but rather the force of violence.50
125
5 Evidence
5.3.13 AT: R2S is Political
Labor movements are most effective if they narrow their focus to economic, not
political, elements
Russell 24
Charles Edward Russell (American journalist and political activist, 1928 Pulitzer Prize
winner, co‑founder of the NAACP). “A. F. of L. Doesn’t Fly Kites.” 31 American Feder‑
ationist 55, 55 (1924). JDN. Google Books.
Many persons think it ought to cut loose and be a political party and get control of
the government and imitate labor parties elsewhere. It is evidence of the intelligence
and good sense of the American worker that he has no time for these kite flyings. He
has stuck to the economic field as the right place for the operation of his organization,
and behold him now, working on the economic field, far better situated than any other
worker on earth.
Better in every way. For while ho has been securing a larger and more nearly just share
of the fruits of Industry, he has been steadily raising organized labor in the respect of
the country and as steadily multiplying its power and influence for good. These are
wonderful results. Reasoning men that know them may well give thanks as this year
closes upon such manifestations.
Parliamentarism is the fatal lure in other countries, the deadly trap, the rock on which
labor goes smash, soon or late. It has never fooled the labor movement in America. The
American worker goes into politics and uses his ballot according to his convictions, but
he does not tie his economic weapon into a bundle with his political power and then
find he has made a slapstick at which in the end everybody laughs.
The last four years have proved his wisdom about this. They have teen the fiercest and
best generaled attack ever made on his labor organization and his labor organization
comes from the ordeal stronger than ever. At this again men of any faith in the race and
its destiny rejoice and are glad. The new year opens with clearing prospects and a better
hope because of it. The great and beneficent part that organized labor plays in human
progress was never so sure. It is to win for the worker always the chance of richer, fuller
and nobler life, to gain for him always a better recognition of his place in society and to
bring men always closer together with more tolerance and wider vision. The new year
will see along this line of march the best progress we have ever made.
126
5 Evidence
Labor movements must remain non‑partisan to preserve their legitimacy
Robertson 99
David Brian Robertson (University of Missouri – St. Louis). “Voluntarism Against
the Open Shop: Labor and Business Strategies in the Battle for American Labor
Markets.”
185.
Studies in American Political Development, 13 (Spring 1999), 146–
JDN. https://www.cambridge.org/core/journals/studies‑in‑american‑political‑
development/article/abs/voluntarism‑against‑the‑open‑shop‑labor‑and‑business‑
strategies‑in‑the‑battle‑for‑american‑labor‑markets/FBE750225DADADD5C1B97BDC2
CF7C0CC
The AFL sought to maximize workers’ political impact independent of existing political
parties, and to pursue its policy priorities with an opportunistic non‑partisanship. The
creation of a labor or socialist political party, leaders argued, had in the past diverted
scarce resources into efforts with less certain payoffs. Non‑partisanship was especially
appropriate in the fragmented U.S. policy making system. In the United States, the
parties primarily aimed to secure office rather than programmatic change. Institutional
fragmentation permitted officials of both parties to compete for worker votes.21
In 1900, with solid Republican majorities in Congress and William McKinley in the
White House, AFL leaders recognized that legislative progress required access to key
Republican leaders and committee chairs. Prior to the mobilization of open shop em‑
ployers in 1902–1903, Republic legislators seemed willing to entertain AFL appeals. In
states dominated by Democrats, however, labor needed to be on good terms with Demo‑
cratic governors and legislators. Any election could shift the balance of power to the
rival party (as frequently had happened during the period of close partisan balance that
constituted most of Gompers’s adult experience by 1900).22
Non‑partisanship also was essential in a system in which a worker with established po‑
litical identity might balk at joining in a union that insisted on a rival partisan affiliation.
Labor leaders themselves were divided in party affiliation. Different labor unions had
different stands on the tariff and other issues that divided the parties. Workers in the
steel industry tended to support the argument that tariffs increased wealth and wages,
for example, while workers in other industries were more open to the argument that the
tariff was the “mother of trusts.” The AFL’s declared non‑partisanship allowed individ‑
ual unions to adapt political strategy to maximum advantage under varying industrial
or local circumstances. Specific partisan affiliations or third party politics (as in San
Francisco) were tolerable if they facilitated labor objectives. Consistent with its view of
127
5 Evidence
non‑partisan working class electoral power, the AFL endorsed the direct election of the
president and the U.S. Senate, as well as initiative and referendum.23
The AFL at the turn of the century invested considerable effort into lobbying both par‑
ties for public policy that, had it been enacted, could have legalized unions’ economic
advantages and partially disarmed employers. From its Washington headquarters es‑
tablished in the late 1890s, AFL leaders met with key members of Congress and the exec‑
utive branch to influence committee and executive agency appointments, the legislative
agenda, the details of specific bills, and the implementation of existing federal laws. In
February, 1901, observers credited AFL lobbying with the defeat of an injunction bill
objectionable to the Federation.24 Gompers’s influence with American workers, both
union and non‑union, was sufficient for President Theodore Roosevelt to ask House
Speaker Joseph Cannon to stop criticizing Gompers by name in the 1906 congressional
campaign.25 The Republican Secretary of Commerce and Labor wrote in his diary that
“No one could well know to what extent labor would be influenced” by the AFL’s com‑
mitment to William Jennings Bryan’s campaign in 1908.26
Exclusively economic movements have been historically successful in securing
workers’ rights
Robertson 99
David Brian Robertson (University of Missouri – St. Louis). “Voluntarism Against
the Open Shop: Labor and Business Strategies in the Battle for American Labor
Markets.”
185.
Studies in American Political Development, 13 (Spring 1999), 146–
JDN. https://www.cambridge.org/core/journals/studies‑in‑american‑political‑
development/article/abs/voluntarism‑against‑the‑open‑shop‑labor‑and‑business‑
strategies‑in‑the‑battle‑for‑american‑labor‑markets/FBE750225DADADD5C1B97BDC2
CF7C0CC
Leaders of the American Federation of Labor firmly had committed the AFL to “volun‑
tarism” by 1900. Voluntarism held that unions were private and voluntary institutions.
According to this view, unions should seek little from the state but absolute freedom
from state regulation. This approach emphasized “pure and simple” material gains,
such as better wages, hours, and working conditions. AFL leaders repudiated social‑
ism and alliances with existing political parties.4 Compared to a more self‑consciously
Marxist trade union movement as in Germany, voluntarism in principle seemed rela‑
tively unthreatening to established economic power.
128
5 Evidence
Many scholars assume that the critical turning point in American labor exceptionalism
occurred with the ascendance of the AFL and its voluntarist strategy. For Kim Voss,
the decline of the Knights of Labor after 1887 removed from American politics a labor
organization that advocated an expansive and inclusive labor strategy comparable to
those abroad. The erosion of the Knights’ influence left the field of labor advocacy to
the more resilient, but more narrow and conservative, AFL.5 Martin Shefter also argues
that the ascendance of voluntarism constituted the turning point in American labor de‑
velopment. In Shefter’s view, the emergence of crafts unions and political machines
defused American working class radicalism by channeling worker action into the pur‑
suit of pure and simple material benefits (through unions representing white craftsmen)
and political patronage (through urban political machines).6 Historian Julie Greene at‑
tributes labor conservatism to the leadership of Samuel Gompers, who consolidated
control of the AFL as the Knights of Labor retreated. In her view Gompers’s leadership
ensured a conservative labor strategy geared to white, male‑dominated craft unions.
Gompers steered the AFL down a path that benefited its members at the expense of
women, blacks, new immigrants, socialists, and industrial workers.7
Voluntarism espoused by AFL leaders in 1900, however, posed a militant and credible
challenge to employers’ prerogatives. AFL leaders sought no less than a fully unionized
industrial capitalist economy. This union shop economy would place unions, rather
than employers, in control of the terms of employment and worker security in the
United States .8 In July, 1900, the AFL Executive Council defined voluntarism in
sweeping terms when it called on the nation’s “wealth producers to unite and federate
regardless of whether they are located East, West, North or South; irrespective of sex,
politics, color or religion.” These workers should “organize unions where such do not
now exist, to join those already organized, and to affiliate in one common bond of labor
upon the broad platform and under the proud banner of the American Federation
of Labor.” The unity and consequent solidarity of American labor would permit
workers to counter the “oppressor,” the “possessors of wealth,” whose combination
and concentration allowed “no sectional or state lines to interfere with their power.”9
129
5 Evidence
5.3.14 Legal Change Not Key
The government should not play a role in the collective bargaining process
ILJ 55
Indiana Law Journal. “Section 8(d) 4 Limitations on the Right to Strike: A Criticism.” 30
Ind. L.J. 538 (Summer 1955). JDN. http://ilj.law.indiana.edu/articles/30_4_Section‑8d4‑
Limitations‑on‑the‑Right‑to‑Strike‑A‑Criticism.pdf
The desirability of no‑strike clauses is widely recognized in the field of industrial rela‑
tions. More than eighty percent of all collective bargaining agreements contain some
form of a no‑strike provision,” illustrating the fact that employers and employees re‑
alize that they are benefited by the limitation or prevention of strikes. At first glance
one may find it reasonable for Congress to include no‑strike clauses in all contracts, but
this disregards the basic principles of collective bargaining which call for agreements
arrived at by the parties themselves on a voluntary basis.3 ” Collective bargaining is
the product of the recognition that the complex problems of labor relations can be reg‑
ulated best by the parties involved.4” These contracts must operate in many entirely
different situations. Each industry, each individual plant, each geographic area has its
own peculiar problems. Certain contract provisions may be advantageous to both labor
and management in a certain industry, while the same terms would not be desirable in
others. Any attempt to embody no‑strike clauses into labor contracts by legislative fiat
amounts to compulsory prescription of the contents of labor agreements, and, in effect,
this procedure would replace part of the collective bargaining process.4
130