A History of Making Effective Methods Illegal or Unprotected

The difference between an illegal activity and an unprotected activity is important, but often it makes little difference for workers. If an activity is illegal, then there are legal repercussions for doing it, like criminal charges or liability for damages. These exist on top of any employment repercussions. If an activity is not protected by the National Labor Relations Act (NLRA), then it means that workers can be fired for doing it and have no legal recourse for getting their jobs back. This vulnerability stems from the absence of constitutional rights in the workplace.

US labor law has a long history of taking tactics that unions use successfully and making them illegal or unprotected. After the passage of the NLRA in 1935 gave workers and unions legal rights to organize, strike, and bargain collectively, unions stepped up political donations to worker-friendly candidates. In 1943, Congress lumped unions in with banks and corporations as entities forbidden to donate to federal candidates. The sit-down strikes that were so effective in the late 1930s were soon declared illegal by the Supreme Court. A similar fate befell intermittent strikes, which are not illegal, but were determined to be unprotected.

The Fair Labor Standards Act of 1938 (FLSA), which established a minimum wage and overtime pay for hours over forty, put so much money into workers’ pockets that it had to be reined in. In 1946, the Supreme Court held that “time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace” counted as work for FLSA purposes. Within six months, unions and employees had filed 1,500 lawsuits seeking $6 billion ($93.67 billion in 2023 dollars) in unpaid wages.

Congress scurried in to defend capital by enacting the Portal-to-Portal Act in 1947, which excluded most “work-adjacent” time by only counting “principal activities” as work that requires compensation under the FLSA. It also prohibited unions from bringing FLSA lawsuits on behalf of their members. The pendulum has swung so far the other way on this issue that, in 2014, the Supreme Court unanimously held that an Amazon contractor could legally force its employees to stand in line for twenty-five minutes for a security screening at the end of their shift without paying them for that time. (If anyone besides your employer did this, we would call it false imprisonment.)

As we’ve seen over the past few years, a strike is the most powerful workplace action a union can take, and a credible strike threat one of its most powerful bargaining chips. That is why most collective bargaining agreements have “no-strike clauses,” in which the union agrees not to call a strike during the term of the contract in exchange for other benefits (often binding arbitration). It is illegal for a unit with a “no-strike clause” to go on strike unless the employer commits “serious” unfair labor practices.

Other steps can also be powerful, especially if they put pressure on supervisors who are stuck between the workers and management. But these actions are only protected under certain conditions.

Restrictions on Workplace Actions as Political Speech

In the context of action on something like the genocide in Gaza, the most important restriction on unions is the ban on “secondary boycotts.” A secondary boycott is when a union uses concerted action (strikes, picketing, boycotts, etc.) to either pressure someone besides the primary employer into action, or to pressure the primary employer to take action against another party. The only exception is that employees are allowed to honor a lawful strike or refuse to cross a lawful picket line.

What makes this ban so important is that not only are secondary boycotts illegal — but they are the only unfair labor practice I’m aware of that allows someone to bring a case directly to court instead of going through the National Labor Relations Board (NLRB). This is a huge thumb on the scale in management’s favor.

So under Supreme Court precedent, a labor union refusing to handle goods or striking until an employer divests from Israeli companies or war manufacturing would be illegal and put the union on the hook for damages. In Longshoremen v. Allied International, for instance, the International Longshoremen’s Association refused to handle cargo coming to or from the Soviet Union in protest of the Soviet invasion of Afghanistan. Allied was a company that imported goods from the Soviet Union; Allied had hired a shipping company called Waterman to ship its goods, and Waterman hired John T. Clark and Son, which was under a contract with the longshoremen, to unload its ships. The Supreme Court held that the longshoremen’s actions were an illegal secondary boycott, and that the union had to pay damages to Allied.

Less than three months later, however, the court held that a boycott of white businesses by a local National Association for the Advancement of Colored People (NAACP) branch seeking equal rights in the community was a valid exercise of First Amendment activities. Under US law, the First Amendment simply does not exist within the employer-employee relationship.

If a union today refused to handle goods (including war materials) heading to or from Israel in protest of its genocide of Palestinians, there is no doubt the court would reach the same conclusion it did in Longshoremen. This means that, while the refusal or strike may send a powerful message in the short term, the companies profiting from the genocide would ultimately suffer no loss — their bloodstained profits would be covered by the legal damages and paid for by union-member dues.

There are, of course, less dramatic — and typically less powerful — actions that unions can take. But while the NLRB is generally more protective of workers than the Supreme Court, the board still requires a nexus between working conditions and what workers are protesting. In Eastex, Inc. v. NLRB, the Supreme Court upheld an NLRB ruling that a union distributing a flyer that included political messaging (opposing right-to-work laws and condemning President Richard Nixon’s veto of a minimum-wage increase) was protected by the NLRA. The court held that these issues were related enough to employees’ working conditions to be protected.

Earlier this year, the NLRB issued a decision in Home Depot that held that employees putting “BLM” (for “Black Lives Matter”) on their company-issued uniform aprons was protected activity because there was a nexus between the BLM movement at large and the racial discrimination by management and supervisors that employees were protesting. This is the most expansive ruling yet on what messages employers must allow employees to express at work — and even then, the expression was allowed only because it was related to specific working conditions at that store.

The Path Forward

There is little hope that unions will be legally able to directly engage in broader politics via workplace actions anytime soon. Passage of the PRO Act would make secondary boycotts legal, but that does not mean they would be protected — employers could still legally fire employees who participate in them And while in Eastex the court gave an opening for unions by saying that workers are protected when they seek to change conditions for workers generally or when they act on behalf of other workers to build solidarity for future disputes, it is hard to see many courts applying that logic to Palestinian workers.

But there are other ways unions can support the people of Palestine, which some unions have made use of. When universities use force against protests that include workers, they may be turning a geopolitical issue into a workplace one. UAW Local 4811, which represents forty-eight thousand grad students and academic workers in the University of California system, has gone on strike in response to the working conditions created by the university’s crackdown on the peaceful protesters. The local’s strike vote announcement cited unsafe work conditions caused by the university failing to stop mob violence against the protesters and calling in the police to violently disperse their encampments, and it has filed an unfair labor practice charge with California’s Public Employment Relations Board (PERB). In response, the university sought an injunction, arguing that the “UAW is a labor union and its negotiations with the University must be tied to terms and conditions of employment.” According to the UAW, PERB denied the injunction request, but the question of whether the strike will be protected is yet to be determined.

Other unions have filed unfair labor practice charges based on unilateral changes in work rules and policies (like changes to free speech and expressive conduct policies aimed at the antigenocide protesters) and the creation of unsafe work conditions. These charges, if upheld by the NLRB, would be massive wins for unions. Strikes against unfair labor practices have a special status in labor law: while a worker engaged in an economic strike can be permanently replaced, a worker striking over unfair labor practices must be reinstated even if the employer hired a permanent replacement for them during the strike.

US labor law outlaws and discourages unions from acting on issues bigger than the workplace. Still, if the last few years have taught us anything, it is that labor can find a way. When an effective tactic is outlawed, unionists can develop new tactics. But one thing that has never changed is that capitalists need workers a lot more than workers need them — and when workers find ways to wield that collective power, they can win big changes.