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. The purpose of the practice picket is to re-create the leverage over the employer that the union gave up when it signed the no-strike, no-picket clause. Almost all American union contracts contain such a clause, which states that employees will not strike until the contract expires. Most unions also agree not to engage in pre-expiration 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 clauses?

Leftist labor experts oppose no-strike 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 accept no-strike clauses as a fact of modern bargaining. Despite the criticism from the left, employers do not usually violate union contracts so much that employees feel oppressed by no-strike clauses. Also, most union members do not want to strike repeatedly against contract violations, but prefer to build up to a strike only every few years.

Why are practice pickets useful?

The no-strike, no-picket clause becomes truly problematic shortly before a contract expires. If, during negotiations, 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. When picketing cannot be one of those tactics, unions instead build the strike threat by workers to wear union stickers, making picket signs in the cafeteria, circulating leaflets in which member leaders declare themselves ready to strike, and other small-scale tactics.

Unfortunately, none of these tactics has the punch of a 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 clause while I was working 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 ready to strike when the contract expired in May. We pushed the usual strike preparation: sticker days, sign-making, and circulating a petition demanding Hepatitis B vaccinations for the soil-sorters. However, 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 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 only forbade picketing 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. Soon members arrived. We practiced patrolling and learned the basic chants. One enthusiastic worker volunteered to drive his minivan up to the lot gate so we could imitate the arrival of a delivery truck. We practiced slowing the “truck’s” entry. Finally everyone left, to punch in to 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 co-workers to the picket. Management was less relieved. They installed a surveillance camera and hired a guard. They 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 gray-roofed building with white trucks in the parking lot is the laundry. The lot full of rusty-brown dumpsters next to it is a scrap yard, and the white-roofed building across the street is a homeless shelter. Most workers lived in the Union Square and Stribley Park neighborhoods behind the plant. A week before the picket we talked to the lady who lived in the house west of the vacant lot and to the imam of the mosque across the street to let them know what we would be doing.

-- AmandaBell - 17 Apr 2010

• swing_shift_picket_small.bmp: swing_shift_picket_small.bmp