OPINION□ SYMPATHY STRIKES Is solidarity legal? I dropped clauses Solidarity signed for many arbitration grievance no-strike off in strikes unions return when droppedoffwhen manyunions signed no-strike clauses inreturn forgrievance arbitration ROBERT SCHWARTZ writes for Labor Notes journal This article was first published in Labor Notes journal Production by members different of workers different collective and unions, technicians agreements. and covered may If the be Production members of different unions,and covered by different collectiveagreements. If the technicianscall a strike,can the production workers respect their picketlines? Possibly. Formuchofthe20thcentury crossing anotherunion's picket line was unheardof. When one union went out, workersin other unionsand workers at othercompanylocations wouldoften stopworkinsupport. Insomecases, whole cities shut down. Solidaritystrikes dropped offafterWorldWar II when many unions signed no-strike clauses in returnfor grievance arbitration. Theseclausessubjectworkers to discharge for striking during thecontract. Somecontracts even expressly barsympathy strikes. Congress dealta further blow in 1947whentheTaft-Hartley Act gave employers theright to sue unionsforcontractviolations .In some cases, courts have awardedmillions ofdollarsindamagesforillegal strikes. The right to sympathise Labourlaw recognises two exceptions to a ban on sympathy strikes. Thefirst appliesifthestrike being supportedis an unfairlabour practice strike,such as a walkout triggered by the employer's refusal to bargain. Ifworkers honour the picketline of a ULP strike, theyhave the same statusas thestrikers theyare supporting: theycannotbe firedor permanently replaced. (Some contracts close thisloopholebyinserting languagethat barsunfair labourpractice strikes.) Thesecondexception comesfrom theNational LaborRelations Actitself. The law says thata stoppage to avoid an 'abnormally dangerous' workingconditionis not a strike. Avoidinga picket linemaymeetthisstandard ifpickets have threatened linecrossers. No-strike clauses in some contracts do not expressly barsympathy strikes. Theysimply ban strikes, stoppages, and slowdowns. Does such generallanguageprohibit workers from respecting picketlinesor conducting other forms ofsympathy strikes? Foryears, theNational LaborRelations Board and thecourtsheld that general no-strike clausesdidnotprohibit sympathy strikes. Judges citedthelegalrulethat a waiver ofa legalright mustbe 'clearand unmistakable '- ortheright was notwaived.In 1985,however , theLaborBoardruledthat a broadno-strike clause should be presumed'as prohibiting all strikes, including sympathy strikes.' Unionscould overcomethe presumption only by proving, through bargaining history, pastpractice, orother evidence, that thetwoparties intended topermit sympathy strikes. The federalNinthCircuit Courthas criticised the 1985 decision.The largest circuit, it covers Alaska, Arizona, California,Hawaii, Idaho, Montana,Nevada, Oregon,and Washington. It said nursesrepresented bytheCalifornia Nurses Association couldrespect thepicket linesofanxray technicians union representedby the Longshore Workers because a generalno-strike clause thatdoes not specify whether sympathy strikes areincludedorexcludeddoes notconstitute 'a clearandunmistakable waiver.' Wheredo you stand? Whatdoes thismean forworkers whose contractscontaingeneralno -strike clauses?If you workin a stateintheNinth Circuit, and thereis no evidencethat yourunionintended togiveup itsright to conducta sympathy strike, you may be able to respecta picketlinewithout risking discharge.(If the strikeis economic,however, yourjob, likethatof the strikers you are supporting , can be givento a permanent replacement ).IfyouareoutsidetheNinth Circuit, there is no clearevidencethat youremployer intended toallowsympathy strikes, andyoudo notfit one oftheexceptions described above,youandyour fellowemployeescan be discharged forrespectinga picketline. A contract that forces workers tocrossthepicket linesoffellowemployeesis a symptom ofa weak labourmovement. Fighting forlanguage thatpermitssympathy strikesis necessaryto rebuild labour'spower. Don't cross picketlines Some unions have won the expressrightto respectpicketlines.Article 9 of theTeamsters National Master Freight Agreement saysit'snota violationif an employee'refusesto enterany property involving a primary labourdispute,or refuses togo through orworkbehindanyprimary picketline'. Similarlanguageexistsin the Teamster contracts withother companies. Sometimes, however, supervisors willtelldrivers to parktheir trucks outsidea picket line.Thena management person from thestruck company will comeoutto drivethetruck acrossorto pickup the package.Still, the delayand hassleforthe companymeanstherefusal to crossis a worthwhileshowofsolidarity . Often truck drivers will calltheunionhalltofind outwhattodo. Ifyou're planning a strike andwantTeamsters tohonour it, notify their localunionsandtheir Joint Council in advance,requesting support. INTERNATIONAL union rights Page 20 Volume 16Issue 1 2009 OPINION□ SYMPATHY STRIKES A sympathystrikewithinthe same local Universityof California public employees planneda strike thissummer - andfacedhurdles trying toorganise a sympathy strike oftheir own members. UC workers areunderCalifornia state law rather thantheNational LaborRelations Act. Contracts had expired forbothservice workers such as janitorsand groundskeepers and for patient careworkers atUChospitals. Management was bargaining withthe patientcare workers, which meant they weren't legally allowedtowalk. Buttheservice workers wereatan impasse - and theycalleda five-day strike. The union,AFSCME Local 3299, knew the serviceworkers'strike wouldbe moreeffective ifthepatient careworkersstayedout ,too.But,saysUC Davisorganiser Amy Hines,"wewerenotlegally allowedtopoint patientcare workersin thatdirection. Neither were board members. We had MemberAction Team leaderswho aren'ton...