Now that the General Motors strike is over, it’s a good time to reflect on how a recent Trump NLRB decision creates perverse incentives to unnecessarily prolong strikes.   In July, in Wal-Mart Stores, Inc., without any meaningful analysis, the Trump NLRB members decided that when workers go on strike, they have only two choices:  withhold their labor until their demands are met, or concede defeat.  Board Members Emanuel and Kaplan held that workers lose the protection of the Act if they go back to work with a plan to strike again over the same issue.  There is no support for this position in the text of the NLRA, and it makes no sense as a matter of policy.

The GM strike lasted 40 days and took a large toll on workers, the company, and the surrounding community.  The workers went six weeks without a paycheck, getting by on strike benefits of $250 per week.  Even with the strike benefits, many workers likely ran up substantial credit card debt.  A 2017 survey found that 34% of Americans have no money in a savings account, and another 35% have less than $1,000 in savings.  GM has recently stated that the strike cost the company $3 billion.  One analysis estimated that 100,000 additional workers – salaried GM employees and workers at auto parts suppliers either suffered layoffs or pay reductions as a result of the strike.  And restaurants near GM factories also suffered from six weeks of lost business.

Sometimes an employer is so intransigent that workers have no choice but to stay out “one day longer.”  But, other times, a short strike is sufficient to demonstrate the resolve of the workers and the potential damage that a longer strike might inflict.  And, when workers go out on strike, shouldn’t our labor laws give workers the incentive to go back to work to give the employer a chance resolve the dispute without further damage to both sides?

Before the Board’s Wal-Mart decision, the Board had held that workers lose the protection of the NLRA when they strike so frequently for such short durations that their conduct amounts to “neither strike nor work,” but the Board hadn’t held that workers can’t strike and return to work while announcing a plan for a future strike if an agreement is not reached.  And there is no good reason for imposing such a rule.   The rule is akin to saying that a combatant can’t declare a unilateral cease fire and retain the right to resume combat.

As far as I can tell, the only reason why the Trump Board imposed its ban on recurring strikes is that it wants to take away an effective tool from workers.  In fact, they admitted as much.  Here’s how the Trump appointees justified their ruling:  “[E]mployees are acting on a plan to strike at times that would most negatively impact the employer … and, fully intending to strike again, quickly return to work before they could realistically lose their jobs to permanent replacements.”  Exactly.  Leaving aside the absurdity of concluding that Wal-Mart, the largest employer in the country, can’t withstand a few short strikes, the Supreme Court has rejected the precise rationale used by the Board here.  In the 1960s, the NLRB barred employers from engaging in offensive lockouts because they put too much pressure on workers.  In American Ship Building v. NLRB, the Supreme Court ruled that the Board had overreached.  The Court held that Congress did not “give the Board a general authority to assess the relative economic power of the adversaries in the bargaining process and to deny weapons to one party or the other because of its assessment of that party’s bargaining power.”  The Court went on to explain that the Board may not go beyond the language of the statute to make distinctions between “justifiable and unjustifiable, proper and ‘abusive’ economic weapons.”

As usual, Board Member McFerran dissented, but even McFerran fell victim to the notion that there are constraints on workers that do not apply to employers.  Board Member McFerran stated that workers who strike repeatedly lose the protection of the Act if they don’t “risk replacement” when they strike.  But, there is no logical reason why workers must “risk replacement” for their strike to be protected.  Again, the Supreme Court has spoken to this.  In NLRB v. Brown, another case involving a lockout, the Court noted that “an employer may legitimately blunt the effectiveness of an anticipated strike by stockpiling inventories, readjusting contract schedules, or transferring work from one plant to another, even if he thereby makes himself ‘virtually strikeproof.’”  In other words, the regime we have is supposed to be one where both sides get to use their economic weapons in the ways that make them the most effective.  If an employer can make itself “strikeproof,” surely workers should be able to time their strikes in ways that make them “replacement proof.”

Over the last few years, it seems workers have rediscovered the strike as a weapon.  But when it comes to strikes, there is no reason for our labor laws to impose a one-size-fits-all model.  Forty-day strikes can be inspiring, but we shouldn’t underestimate the pain they cause to all sides.  Workers should have the option to use a more targeted weapon by withholding their labor in shorter increments.