Practice Pickets: solving the problem of no-strike, no-picket clauses before contract expiration

What is a practice picket?

A practice picket is a picket carried out during the life of a union contract that includes a no-strike, no-picket clause. Almost all American union contracts contain these no-strike clauses, which state that until the contract expires, employees will not strike. Most unions also agree not to engage in activity that resembles a strike, such as picketing. A union violating these clauses is liable for losses the employer can claim it suffered as a result of the picket or strike. 12 Employment Coordinator § 56:7 (2010).

What is problematic about no-strike, no-picket clauses?

Leftist labor experts oppose no-strike, no-picket clauses because they bargain away employees’ most powerful leverage. Employees may put up with years of contract violations before they can make an effective protest. However, these clauses have become the typical consideration unions offer employers: the employees promise to continue working in exchange for raises and other benefits. Most unions do not question accepting no-strike clauses.

Why are practice pickets potentially useful?

The no-strike, no-picket clause becomes most problematic during negotiations shortly before a contract expires. If an employer does not fear that workers may strike, it will stick to its harshest proposals. Thus workers need an effective tactic for convincing management they are willing to strike. Unfortunately, with a no-strike, no-picket clause, picketing cannot be one of those tactics.

In the absence of picketing as an option, unions build the strike threat by organizing days when workers wear union stickers, circulating leaflets in which member leaders declare themselves ready to strike, making picket signs in the cafeteria, and other small-scale tactics.

Unfortunately, none of these tactics has the punch of an actual picket. A leaflet cannot put as much fear into managers as seeing their employees marching in an action that looks just like a strike.

The inability to picket can also make it difficult for the union to assess member support. A member who is brave enough to wear a sticker is not necessarily brave enough to strike. A member who is brave enough to picket is probably closer to being ready to strike.

An example practice picket

I first developed the “practice picket” strategy to get around a no-strike, no-picket clause while I was working on a campaign in Stockton, California in 2005. When I first came to their laundry plant in February, most of the union members were cordial, but only three seemed as though they would be strong enough to strike when the contract expired in May. I spent months pushing the usual strike preparation: sticker days, sign-making, and circulating a petition that demanded Hepatitis B vaccinations for the sorters. However, the members remained lukewarm. I had explained to them that, as laundry workers, their strike would require following delivery trucks to clients’ locations, then setting up instant pickets (see http://emoglen.law.columbia.edu/twiki/bin/view/LawContempSoc/AmandaBellFirstPaper). They understood that this would be difficult and occasionally dangerous.

Planning

I wanted management, not my members, to be afraid of a strike. In April I talked to the union’s attorney. He sent me a copy of the contract. It had a typical no-picket clause. However, the language was vague about what “picketing the employer’s establishment” meant. The term “picketing” has a clear legal meaning – “patrolling at a site with a message . . . on . . . sign[s].” Howard Lesnick, The Gravamen of the Secondary Boycott, 62 Colum. L.Rev. 1363, 1364 n. 5 (1962). But the contract language did not say that no picketing could occur during the contract. It said only that no picketing could take place at the “establishment.”

There was a vacant lot a block away from the laundry. I sent a description to our lawyer of its distance from the plant. I told him we wanted to “practice” picketing the chainlink gate to the lot. He agreed with me that although the lot was within sight of the plant, it was sufficiently unrelated to the plant for us to picket.

Member turnout

On the day of the picket, the first to arrive were not union members, but two managers and their video camera. They stood across the street to record whatever happened – probably on the advice of their own lawyer. Soon members arrived. We practiced patrolling and learned the basic chants. One enthusiastic worker volunteered to drive his minivan up to the gate of the lot so we could imitate the arrival of a delivery truck. We practiced slowing the “truck’s” entry into the gate. Finally everyone left, to punch in to the swing shift or go home. I compared my attendance list to the full shop list. We had seventy-three percent participation.

Management reaction

I was relieved, and so were the original three members who had helped bring their co-workers to the picket. Management was less relieved. They installed a surveillance camera and hired a guard. Management held a “fire drill” that turned into a meeting about how the union was going to put everyone out of a job. The GM even bolted the ladies’ room window shut because he thought I was sneaking into the plant through it. Fortunately, the members found all this funny rather than intimidating. Seeing their managers frightened of them – simply because they had marched around like strikers – had shifted their sense of the balance of power. When the contract expired two weeks later, the members volunteered to picket the plant itself.

A few weeks after those real pickets began, we won the best contract the members had achieved in 30 years. It included their highest raise in all that time and fairer schedules. The contract did not contain everything the workers had hoped for, but it represented an important break from the past.

Conclusion

A practice picket is a creative, effective tactic. It can assess employees’ strength, give them confidence, and, most importantly, pressure management into bargaining a better contract.

The swing shift's practice picket, April 15, 2005. The man kneeling in the middle is my co-worker Heraclio, a shop steward at San Diego Airport Sky Chefs. He took several months off of work to help organize the laundry.

View Larger Map

Our vacant lot is the gray rectangle labeled "1201 South Airport Way." The building labeled "Angelica Textile Services" is the laundry. A week before the picket we talked to the lady who lived in the neighboring house and to the imam of the mosque across the street to let them know what we would be doing.

-- AmandaBell - 17 Apr 2010

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