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North American regimes of industrial legality provide workers with protected rights to organize, bargain collectively, and strike. However, they also limit the freedom to strike. Trade unions commonly accept and enforce these limits but at great cost to solidarity and militancy. This article examines the many ways law works against labour by restricting the freedom to strike and explores the practice of unlawful strikes in North America, including recent examples that resulted in successful outcomes. It concludes with reflections on the revival of unlawful strikes as a tactic for rebuilding and remobilizing the North American labour movement. While the article's focus is North America, the discussion of unlawful strikes may also be relevant in other countries that limit the freedom to strike.
North American regimes of industrial legality provide workers with protected rights to organize, bargain collectively, and strike. However, they also limit the freedom to strike. Trade unions commonly accept and enforce these limits but at great cost to solidarity and militancy. This article examines the many ways law works against labour by restricting the freedom to strike and explores the practice of unlawful strikes in North America, including recent examples that resulted in successful outcomes. It concludes with reflections on the revival of unlawful strikes as a tactic for rebuilding and remobilizing the North American labour movement. While the article's focus is North America, the discussion of unlawful strikes may also be relevant in other countries that limit the freedom to strike.
Keywords: Labour Law; Strikes; Unlawful Strikes; Political Strikes; Wildcat Strikes
I. INTRODUCTION
NORTH AMERICAN REGIMES OF INDUSTRIAL LEGALITY,1 like those of most jurisdictions, aim to accomplish two competing goals. On the one hand, they facilitate unionization and collective bargaining by creating some combination of protected rights to organize and requiring employers to recognize and bargain with unions freely chosen by their employees. On the other, they aim to reduce industrial conflict through a variety of mechanisms, sometimes including prohibitions or limitations on the freedom to strike, which are the focus of this article. Canadian labour laws are among the most restrictive. For example, all strikes during the life of a collective agreement are prohibited as are recognition strikes, and procedural requirements must be satisfied before a strike is legal. Public sector workers face further restrictions ranging from total prohibitions to expansive maintenance of service requirements to back-to-work legislation. In the United States the source of no-strike provisions is in negotiated collective agreements. These laws and agreements are not paper tigers; employers and the state have effective remedies to deter unions and their members from striking unlawfully.
While for many years, North American unions were able to expand their reach and negotiate beneficial terms for their members under these regimes, their ability to continue to do so, especially in the private sector, has been challenged in recent decades (van der Velden, 2024). Trade union density is falling, and the union advantage is declining. So too is strike frequency. Indeed, in many jurisdictions, not only is strike frequency at or near historic lows but strike laws have become more restrictive. While these laws are not the root cause of labour' travails, they contribute to the taming of labour militancy, which is both a cause and effect of organized labour's general decline.
Recently, a number of commentators have suggested that one way of remobilizing the North American labour movement is to expand its repertoire of struggle by reviving unlawful strikes as a tactical choice rather than a no-go zone (e.g., Blanc, 2020; Burns, 2014; Camfiled, 2009; Gourevitch, 2018; White, 2018). The goal of this article is to contribute to this discussion first by examining in some detail a recent and largely successful unlawful strike by education workers in Ontario, Canada.2 This is followed by an interrogation of strike illegality that unpacks the many ways in which the law limits the freedom to strike. The article then examines three kinds of unlawful strikes, wildcat strikes, strikes against temporary strike prohibitions, and political strikes. It concludes with some reflections on the potential for unlawful strikes to be part of a larger strategy to revive trade union militancy.
II. ONTARIO EDUCATION WORKERS WIN AN UNLAWFUL STRIKE
In early November 2022, 55,000 education support staff represented by the Ontario School Board Council of Unions (OBSCU) were preparing for a legal strike against an austerity-minded Conservative Ontario government. The government saw no need to compromise since it had already declared that in the absence of an agreement it would impose a settlement and prohibit a strike. True to its word, just before the union reached a legal strike position, the government rushed through Bill 28.3 The legislation, however, was almost certainly unconstitutional since Canada's Charter of Rights and Freedoms protects collective bargaining and the freedom to strike. Rather than risk losing a Charter challenge, the government invoked the Charters "notwithstanding clause," which allows governments to override certain Charter guarantees, including freedom of association.' Bill 28 also imposed substantial penalties on individuals and unions that defied the law. Individuals could be charged with an offense and fined up to $4,000 for each day of contravention, while unions could be fined up to $500,000 a day. Strikes in violation of Bill 28 were also deemed unlawful strikes for the purposes of the Labour Relations Act (LRA). This legislative action allowed the government to access the labour board's considerable powers to end unlawful strikes and punish participating workers and unions.
In the normal course, Bill 28 would have ended the strike. The education workers would have obeyed the law and remained at work. Although a Charter challenge was barred, perhaps the OBSCU would have complained to the International Labour Organizations Committee on Freedom of Association alleging that the Ontario law violated Canada's obligations and, in a year or two the complaint likely would have been upheld but without any immediate legal or political consequences (Braley-Rattai, 2021; Evans et al., 2023, pp- 171-72).
Instead, the education workers struck illegally. Certainly, the workers were angered by the government's gross violation of the norms of industrial and constitutional legality, but for anger to lead to concerted unlawful action at a provincial scale there needed to be commitment from the union and advance preparation among the members. In an interview subsequent to the strike, the union president, Laura Walton, emphasized the importance of the worker-to-worker organizing that had been taking place in the union in response to previous rounds of legislative wage capping and strike bans (Milton, 2023; Lukacs & Paling, 2022). The OBSCU members were joined by another group of education workers represented by the Ontario Public Service Employees Union (OPSEU), who had also been negotiating with the government. Picket lines went up around the province and massive rallies in support of the education workers were quickly organized. Unable to safely operate without these workers, school boards closed the schools even though teachers had not joined the strike.
The government quickly moved to enforce Bill 28, by seeking an unlawful strike declaration from the labour board to force the teachers back to work.' Although the application seemed straightforward, lawyers for the union argued that the declaration was a discretionary remedy and that the board should not lend its powers to efforts by the government to undermine constitutionally protected labour rights. The board seemed receptive, making it unclear how it would rule. At the same time, provincial labour leaders were threatening to call a general strike, and the few unions that had endorsed the Conservatives in the previous election withdrew their support. Public opinion blamed the government for the school shut down and opposed its use of the notwithstanding clause (Bush, 2022; City News, 2022; Gindin, 2022; Lukacs & Paling, 2022).
In the face of this backlash and with the possibility that the board would not declare the strike illegal, a shaken Doug Ford, the usually pugnacious Conservative premier, retreated. He announced that Bill 28 would be repealed, and that the government would return to the bargaining table with an increased wage offer - if the unions ended their strike. Although the decision to take down the picket lines before a deal was reached was controversial, the unions agreed, and a deal was reached that was overwhelmingly ratified by the members (Lukacs & Paling, 2022). The repeal legislation, enacted in a single day, declared that Bill 28 "is deemed for all purposes never to have been in force" and was made retroactive to the day it was enacted." In sum, the unlawful strike forced the government to return to the pre-existing norms of industrial legality and constitutional law.
There have also been recent unlawful strikes in the US producing labour victories, notably by teachers in West Virginia and Arizona, both states that do not permit public sector strikes. Despite the threat of sanctions, teachers in both states struck, forcing the schools to close. The teachers enjoyed widespread public support, which shaped the states' responses. Rather than punish striking teachers, the governments ended the strike by granting significant pay increases (Blanc, 2020). Two years later, West Virginia teachers conducted a second unlawful strike, this time to protest a state law that would have created seven charter schools and subsidised private school tuition in certain circumstances (Will, 2019). The government withdrew the bill, and no discipline followed. However, the states' restrictive regimes of industrial legality, including the bans on public sector strikes remain in force (Will, 2023). Indeed, in West Virginia, where the strike prohibition derived from a court judgement, the legislature enacted a law in 2021 putting the ban on a firmer legal foundation and making it more coercive by stipulating that participation in a strike is grounds for termination (Gelernter, 2021).
III. THE LAW AGAINST LABOUR: INTERROGATING STRIKE ILLEGALITY
Labour rights and freedoms and the norms of capitalist legality stand inadialectical relationship, historically engaged inan evolving conflict that shapes and reshapes the law over time, while also influencing labour and capitals understandings of their legitimate entitlements. I do not mean to propose a reified understanding of law, in which law determines social relations. Rather, the starting point is the contradictory and opposing class relations that are a structural feature of capitalist social formations and that are instituted in historically specific ways (Steinberg, 2016). Broadly speaking, in the North American and other capitalist democracies, law is a crucial site for exercising class power, while also being a terrain of struggle over the terms and limits of that power. Where the law is perceived to be primarily an instrument of class rule, labour's likely strategy will be to seek freedoms, understood here as a legal relation that limits the use of the law to vindicate and enforce capitals rights claims, such as a right to unimpeded access to private property. Labour will be 'against' the law (Dimick, 2019; Forbath, 1991). Yet at other times law may be perceived as a terrain on which workers can win protective rights that impose duties on employers, such as a duty to recognize and bargain with unions freely chosen by workers. When labour perceives they can benefit from a protective regime of industrial legality, it may seek more rights and the regime is likely to enjoy a measure of legitimacy. However, labour rights are often accompanied by restrictions on labour freedoms, including the freedom to strike.
It bears emphasizing that the law is not a neutral terrain of struggle. Law itself is constitutive of the capitalist social formation that it regulates (Adams, 2020). As such, the legal foundations of capitalism, including private property and freedom of contract - or more broadly the norms of capitalist legality - are naturalized within the legal regime, so that struggles to create more labour rights and fewer restrictions on labour freedoms must overcome deeply ingrained values and assumptions (Atleson, 1983; Glasbeek, 2024). Additionally, as labour becomes more enmeshed in regimes of industrial legality, it risks legitimating and becoming subordinate to norms of capitalist legality that limit its ability to challenge the unequal power relations underwritten by those norms (Gourevitch, 2018; Palmer, 2009, ch. 7; Fantasia, 1988).
This brings us to the notion of an "unlawful strike." Each of these words needs clarification. The term 'strike,' refers to a collective withdrawal of labour. Of course, there are nuances and specific legal definitions of strikes (e.g, Langille, 2009), but these can be set aside for now. Then there is the term "unlawful." What makes a strike unlawful? This is determined by the regime of industrial legality in force at the time and place of the strike, but in general terms we can say that strikes can be unlawful in at least three distinct ways (see Table 1).
Before proceeding it is important to distinguish between illegal and unprotected strikes. An illegal strike is one in which workers do not have the freedom to strike in the sense that the strike is prohibited by state law. As a result, participating workers may be ordered to return to work, and workers and union officials may be punished, including by imprisonment. Workers who lack the freedom to strike will also not have a right to strike in the sense that their employers may take adverse action against them, including terminating their employment or suing them for damages.
By contrast, unprotected strikes involve situations in which workers have a bare freedom to strike, but no right to strike. This means that while the state cannot force them back to work or punish them, their employers may take adverse action against them, as described above. This situation prevailed in Canada and the United States after strikes were decriminalized but before they were closely regulated by collective bargaining laws (Fudge & Tucker, 2001; Tomlins, 1985). It also exists today in jurisdictions like Australia that prescribe the conditions that must be met for strikes to be protected but do not make it an offence for workers to engage in unprotected strikes. Onerous conditions may severely limit the ability of unions to conduct protected strikes (Creighton et al., 2020), and the consequences of conducting an unprotected strike may be severe. While the focus of this article is on unlawful strikes as defined above, the difference between them and unprotected strikes may not be particularly consequential for our understanding of illegal strikes.
The first category of unlawful strikes involves strikes in which workers engage in unlawful actions to make their strike effective. Historically, the state has narrowly limited the legal repertoire of strike support actions. For example, occupying workplaces and engaging in mass picketing are often prohibited as is picketing other than at the premises of a struck employer (Evans et al., 2023; White, 2019). When strikers engage in illegal actions, courts may issue injunctions, and workers and their leaders may be prosecuted or fined.
While these are obviously important restrictions on the freedom to strike, they will not be the focus of this article for several reasons. One is simply prudential. A single article cannot deal comprehensively with all forms of strike illegality. Second, strictly speaking, the use of unlawful means does not make the strike itself unlawful. It can continue even though, stripped of the means to make it effective, it may be futile. Finally, these kinds of restrictions on strike tactics pre-date contemporary regimes of industrial legality, and, despite some modifications, there is a large measure of continuity. By contrast, the restrictions on the freedom to strike stricto sensu are the product of contemporary regimes of industrial legality.
The second category of unlawful strikes involve violations of prohibitions on striking. However, different regimes of industrial legality limit the act of striking in various ways. Most fundamentally, the law may prohibit the collective withdrawal of labour tout court as it arguably did for most workers at the dawn of industrial capitalism (Orth, 1991; Tomlins, 1993, p. 128; Tucker, 1991). Today that is rare. More often, states allow strikes for most groups of workers but prohibit them for others, such as public sector workers.® Often strike prohibitions are even more refined. For example, public sector workers may be free to strike generally, but specific groups of workers deemed to be essential, such as police and firefighters are not. In other cases, restrictions are less categorical, and some workers may strike so long as essential services are maintained. This is common in Canada when health care workers are allowed to strike (Mironi & Schlachter, 2018).
In addition to total and partial strike prohibitions, temporary strike bans may be imposed on workers who ordinarily have the freedom to strike. For example, when Canadian governments impose temporary wage controls, they prohibit strikes over wages for the duration of the controls. Another example is back to work legislation terminating lawful strikes, a common phenomenon in Canada (Evans et al., 2023).
Another set of laws limit when workers can legally strike. In North America strikes during the life of a collective agreement are generally prohibited. This restriction is near absolute in Canada, including a prohibition on strikes over hazardous working conditions.9 Often there are also procedural prerequisites for lawful strikes. For example, in most Canadian jurisdictions, unions may only strike after state conciliation has failed. They may also have to conduct a valid strike vote or provide advance notice to the employer. For example, under federal Canadian law workers must provide a 72-hour notice of a strike, as port workers recently discovered.10
The final group of strikes in the second category are sympathy or general strikes for economic purposes. The difference between a sympathy and a general strike for economic purposes is its scale. When a small number of workers or unions strike in support of another group of striking workers it is described as a sympathy strike; when the size expands, for example all public sector workers, then the action is more likely to be labelled as a general strike. Regardless of the label, both are almost always unlawful because they will violate the ban on strikes during the life of a collective agreement. Combined with the extremely decentralized framework of North American collective bargaining, it is almost impossible for different bargaining units legally to act in solidarity, unless they have coordinated the expiry of agreements, as recently occurred in the UAW negotiations with US automakers (Lichtenstein, 2023).
The third category of illegal strikes are those conducted for political rather than collective bargaining purposes (Leier, 2003; Reddy, 2020-2021). While the line between the two can be blurry, especially in the context of public sector strikes, for our purposes political strikes are defined as strikes outside the context of a particular round of collective bargaining that aim to pressure the state, acting as the state and not as the employer, to respond to worker demands, such as repealing legislated wage controls. But what makes political strikes illegal? In Canada the illegality of political strikes is most firmly rooted in the prohibition on strikes during the life of a collective agreement. However, historically, some political strikes have also been treated as insurrectionary and suppressed by force and criminal prosecutions of leaders.
In sum, the boundaries of strike legality are not timeless but rather are a feature of historically evolving regimes of industrial legality, themselves shaped by class conflict. While North American labour laws created labour rights, including a protected right to strike, they narrowly limited the freedom to strike. Moreover, the regime sharply defined those limits and created more effective tools to enforce them. Yet, despite these restrictions, these regimes achieved a high degree of acceptance among trade unions and unionized workers, in part because new labour rights, including a protected right to organize, administrative recognition procedures, and grievance arbitration, facilitated unionization and provided a degree of workplace justice in an era when unionized workers made significant material gains. Under these conditions, the regime of industrial legality shaped trade union praxis; 'responsible' trade union leaders accepted the regime's restrictions on trade union freedoms (Camfield, 2009; Fudge & Tucker, 2001).
In recent decades, the efficacy of organizing rights and strike substitutes has eroded. For example, the tolerance of management's increasing use of coercive tactics such as captive audience meetings and the abolition of card-count certifications in most Canadian jurisdictions has contributed to declining private sector union density (Riddell, 2004; Slinn, 2008). As well, the material basis of legitimation has also weakened as wage growth has flattened and failed to keep up with productivity growth (Economic Policy Institute, 2024). There is growing recognition that North American regimes of industrial legality do not provide many workers with meaningful access to collective bargaining, the means to secure a fair share of socially produced wealth or a modicum of workplace justice. Moreover, in recent decades as governments embraced neoliberal austerity, they often narrowed the space for legal strikes, raising the question of whether labour should revive unlawful strikes to its repertoire of resistance.
IV. LABOUR AGAINST THE LAW: THREE VARIETIES OF UNLAWFUL STRIKES
To my knowledge, there is no database of unlawful strikes in Canada or elsewhere. Hence the following analysis will be driven by case studies that may not fully capture the causes, frequency, or outcomes of unlawful strikes. It is also impossible to examine every kind of unlawful strike, so I focus on three: strikes during the life of a collective agreement in response to shopfloor grievances (wildcat strikes); strikes against permanent or temporary strike bans; and political strikes.
A. WILDCAT STRIKES: DEFYING THE EMPLOYER
Based on the level of attention they attracted, it is likely that wildcat strikes were the most common form of unlawful strike from the end of World War II to the late 1960s. These were strikes that occurred while a collective agreement was in force and often without the union's formal authorization. Nearly all occurred in the private sector if only because few public sector workers were unionized in this era.
In broad terms, wildcat strikes challenged a foundational trade-off of the post-war regime of industrial legality: labour rights in exchange for labour peace during the life of the collective agreement. In Canada, the ban on strikes during the life of a collective agreement was usually guaranteed by a requirement that every collective agreement include such a prohibition and provide for binding arbitration to resolve disputes. In the United States, in the absence of a statutory ban, no-strike clauses were negotiated as a standard term, in upwards of ninety percent of all agreements (Schwartz, 2023). Despite the seeming neutrality of this arrangement, it advantages employers. Like all work contracts, collective agreements are incomplete. This leaves lots of space for ambiguity over the parameters of managerial authority. To fill in this space, arbitrators held that management rights prevail except to the extent they are specifically limited by the agreement. But even when unionized workers claim management has violated the agreement, they cannot disobey management orders. Instead, the general rule is that workers must "obey now and grieve later." Workers who disobey are liable to disciplined, even if an arbitrator subsequently determines the order violated the collective agreement. Enforcement of the peace obligation is strict. Trade unions are under an obligation to make every effort to prevent wildcat strikes lest they be held liable for any resulting damages (Drache & Glasbeek, 1992, pp. 127-148).
Still, North American workers in the 1950s and 1960s frequently engaged in wildcat strikes, which attracted lots of attention from industrial relations scholars, aggrieved employers, and enforcers of industrial legality. Alvin Gouldners classic study, Wildcat Strikes (1954) argued that wildcat strikes occurred when management violated workers normative expectations about workplace governance. Gouldner did not emphasize the illegality of the workers' action, perhaps because at the time it was less clearly established in the US that wildcats violated the collective agreement. Nevertheless, the willingness of unionized workers in the 1950s and 1960s to walk off the job rather than defer to the grievance procedure arguably indicated that the infrastructure of industrial legality had not fully suppressed shopfloor militancy (Scott & Homans, 1947; Jamieson, 1962; Fisher, 1982; Zetka Jr., 1992; Minchin, 2024).
In Canada, a large wave of wildcat strikes in the mid-1960s seemed to threaten the regime's promise of labour peace. According to one estimate, 53 percent of the more than 1,100 strikes recorded for 1965-66 were wildcat actions, a figure that likely undercounts their true extent since stoppages of very short duration were not officially recorded (McInnis, 2012, р. 157)." Unlike legal strikes, whose goal was to secure improved terms and conditions, wildcats usually occurred in response to shopfloor grievances that workers were unwilling to tolerate while awaiting the outcome of a bureaucratized and legalized grievance procedure. The spike in wildcats was attributed to a number of causes, including the entry of a rebellious generation of workers who were unwilling to tolerate the authoritarian management style that typified so many industrial workplaces. Further fuelling this youthful labour rebellion were strains of radical politics, including separatism in Quebec and resurgent (anti-American) nationalism in English Canada. Finally, although women's labour force participation was growing, wildcat strikes were most common among men in male-dominated workplaces (McInnis, 2012; Palmer, 2009).
It seems that the incidence of wildcat strikes dropped in the following decades. In the absence of data this is hard to verify, but it is noticeable that concern over wildcat strikes declined sharply (but see Fantasia, 1988) as they no longer seemed to threaten the regime's promise of labour peace. Assuming there was a decline, it can be explained by a number of developments. Perhaps most importantly, labour militancy as measured by legal strike frequency began declining in the mid-1970s. At the same time, private-sector union density began dropping and concession bargaining became common alongside de-industrialization (Chaison, 2012; High, 2003; Troy, 1990). Economic and job insecurity likely reduced the willingness of unionized workers to risk discipline or make their workplaces candidates for closure. As well, disciplinary measures were strengthened to repress the wildcat wave. Arbitrators held unions liable for damages if they did not take every possible step to prevent wildcat strikes and legislators amended collective bargaining statutes to make it unlawful to even threaten an unlawful strike or do any act that would encourage another person to strike unlawfully (Drache & Glasbeek, 1992). Finally, the law was amended to make it easier for employers to obtain damages.12
In sum, the combination of growing worker insecurity and increased coercion seemingly reduced the frequency of unlawful wildcat strikes in the last decades of the twentieth century and has continued into the twenty-first. However, it has not eliminated them entirely. For example, in 2020 Alberta health care workers engaged in a one-day wildcat strike to protest a proposal by hospital employers to contract out some jobs. The labour board ordered the union to forfeit $1.6 million worth of union dues for its failure to oppose the walkout. As well, the employers took disciplinary action against hundreds of participating workers, including suspensions and letters of reprimand (French, 2023).
B. UNLAWFUL STRIKES: DEFYING STATE STRIKE BANS
While private sector workers face timing restrictions and procedural prerequisites for lawful strikes, they are rarely prohibited from striking tout court and only occasionally do they face temporary prohibitions from back-to-work or wage restraint legislation. Thus, strikes in defiance of strike bans largely occur in the public sector but only after securing coverage under collective bargaining laws in the late 1960s, in response to growing labour militancy and unlawful strikes (Jamieson, 1968, pp. 422-427).'3 These laws, however, placed greater restrictions on the freedom to strike than in the private sector.
Emblematic of the new public sector regime was the federal law enacted in 1967. Bargaining agents were required to choose between arbitration and strikes as a dispute resolution mechanism, but even when strikes were chosen, the freedom to strike was limited by the requirement to maintain essential services. '· Within a few years, most Canadian jurisdictions enacted similar public sector collective bargaining laws. However, beginning in the late 1970s, this freedom has been subject to awide range of limitations, including temporary prohibitions rooted in the turn toward neoliberal austerity. It is the violation of these 'excess' restrictions that tend to make public sector strikes unlawful.
A comprehensive assessment of these unlawful strikes is clearly beyond the scope of this article, but it would be fair to say that the majority have been conducted by education and health care workers. The article's opening scenario involved an unlawful education workers strike that violated ad hoc legislation imposing a wage settlement. Here we will describe strikes by Alberta nurses and BC health care workers and teachers that achieved limited success and the disastrous PAT CO strike in the US.
Alberta nurses, like many others, switched from being organized as a professional association to unionization in the 1960s, at a time when they were covered by the private sector collective bargaining law that permitted strikes (Coulter, 1993). However, when nurses first exercised their legal freedom to strike in 1977, the government declared a public emergency after four days and ordered them back to work. The nurses complied but discontent ran high. In 1980 the nurses struck at 79 hospitals and were ordered back to work after three days. This time the union defied the order and challenged it in court, but while the case was being argued negotiations resumed and a settlement was reached. Two years later, in 1982, the nurses struck again to which the government responded with even more draconian back-to-work legislation that imposed serious sanctions for defiance, including large fines, the threat of union decertification and restrictions on violators ability to work for the union or hold office. In the face of these threats, the nurses returned to work, and the outstanding issues were resolved by binding interest arbitration.
The following year, the Alberta government banned strikes by all workers in the broader public sector including nurses. Instead, disputes were to be decided by an arbitrator who was to have regard, inter alia, to government fiscal policy. The legislation provided stiff penalties for unions and union members who defied its provisions, including a six-month suspension of dues collection. (Fudge & Glasbeek, 1992). Nurses were becoming increasingly angry about government interference with what they viewed as a basic democratic right and the union leadership worked hard to strengthen membership engagement and support for its collective bargaining agenda.
By the time of the 1988 round of bargaining, the union was well prepared. There was, however, an added wrinkle. In 1987 the Alberta government imposed a wage freeze on the broader public sector. Negotiations proceeded and when the union advised the employers it was recommending rejection of the frozen wage offer, the employers sought a labour board declaration prohibiting union locals from voting since rejection amounted to an unlawful threat of a strike. The board issued a cease-and-desist order to prevent the vote, which the union defied. All 104 locals held votes with over three-quarters of eligible nurses participating. Seventy-six percent voted to go on strike. The employers went back to the labour board and secured a declaration that a strike would be unlawful, which it filed with the court, making it enforceable as a court order (Coulter, 1993).
The nurses struck anyways and were immediately met by a coercive response. Some employers secured permission to cease collecting union dues for six months and the courts issued an injunction prohibiting picketing at three hospitals. One-thousand nurses defied the injunction, and some were served with civil contempt citations. The government also charged the union with criminal contempt and sought a $1 million fine. The union was convicted and fined $250,000. The strike continued and another charge was laid, this time resulting in a $150,000 fine (Fudge 87 Glasbeek, 1992).16 Local unions and individual nurses were also held to be in civil contempt and fined, while employers sent out disciplinary letters to union members and threatened termination. Yet, despite the use of coercion, few nurses returned to work and shortly thereafter a deal was reached that achieved some but certainly not all of the union's bargaining objectives.
The 2004 strike by BC health support workers was the culmination of a series of government actions beginning in 2002 aimed at privatizing their work and worsening their working conditions. There was some discussion of a political strike to oppose the 2002 law, but it never materialized and instead the Health Employees' Union (HEU) pursued a constitutional challenge that ultimately resulted in the Supreme Court of Canada holding that collective bargaining was constitutionally protected freedom of association.17 However, while the case was being litigated, HEU was negotiating with the government over the terms of the laws implementation. Little progress was made, and the union began a lawful strike. Within days the government enacted back-to-work legislation and imposed a collective agreement that retroactively cut wages and made additional changes implementing the employer's bargaining position. In defiance of the law, HEU members remained on strike. Other workers, including teachers who faced similar measures, engaged in unlawful sympathy strikes. Plans were being made to escalate the sympathy strike, including a full-blown public-sector strike and strikes by some private sector unions. While this was happening, the employers' association obtained a cease-and-desist order from the labour board, which it sought to enforce by applying to the BC Supreme Court to hold HEU in contempt for not ordering its members back to work." Meanwhile, behind closed doors, HEU leaders were negotiating with government officials and before the strike escalated, they reached a deal that modified some of the terms of the legislatively imposed contract. Despite some grassroots resistance, the strike soon ended (Camfield. 2004; Isitt & Moroz. 2007).
Then, in 2005, the British Columbia Teachers' Federation (BCTF) began legal on-the-job actions that they planned to escalate into a province-wide strike. In response, the government enacted legislation extending the existing contract, effectively banning the strike. Despite this, the teachers voted overwhelmingly to strike illegally. Two days later the BC Supreme Court held the BCTF in contempt and prohibited it from issuing strike pay. Many unionized education workers respected the teachers' picket lines, effectively engaging in an unlawful sympathy strike. CUPE-BC, the union that represented education workers, planned to escalate their action by organizing rotating regional sympathy strikes, leading potentially to a province-wide strike. Despite the disruption, public support for the teachers was high. Nevertheless, the BCFL refused to support or organize sympathy actions and pressed фе BCTF to accept a mediators recommendations, which members voted to accept, even though it did not incorporate any of the teachers" key demands (Camfield, 2009).
Against these limited successes, it will be helpful to contrast what was perhaps the most spectacularly unsuccessful unlawful strike of this kind - the 1981 PATCO strike. There are of course considerable differences between Canadian and US public sector strike laws, but in the case of US air traffic controllers, the collective bargaining regime for federal employees barred strikes as well as bargaining over wages (Trudeau, 1983). Nevertheless, PATCO had conducted several job actions since its establishment in 1968, some of which resulted in disciplinary action, including a standing injunction barring future strike activity (Northrup. 1984). Yet despite this, the union remained militant. It established a thinly disguised strike fund and was quite successful in advancing its bargaining agenda. A change in leadership in 1981 brought to power a leader, Robert Poli, who viewed the strike weapon as key to winning its bargaining demands and plans were made to prepare the membership to support this action, including a strike authorization vote taken prior to the strike deadline set by the union. A tentative settlement was reached just prior to the deadline, but the union's executive board voted unanimously to reject it, even though it contained a generous wage increase and set a precedent by the de facto wage bargaining that occurred. The membership overwhelmingly voted to reject the contract and after fruitless negotiations an unlawful strike began on August 3 in which the vast majority of air traffic controllers participated.
Despite its preparations, PATCO failed to anticipate the government's response. First, it underestimated the governments contingency preparations for maintaining air traffic control in the event of a walk out. Only about half of all flights were cancelled initially, and the government moved quickly to replace the striking workers with supervisors and military personnel. Second, PATCO failed to anticipate President Reagan's resolve. He issued an ultimatum to return to work within 48 hours or face permanent replacement and being barred from future employment not just as an air traffic controller but in the federal government. Over 11,000 PATCO members failed to return and were permanently replaced. This defeat not only destroyed PATCO but also heralded a sharp decline in strike frequency in the public and private sectors in the following decades (McCartin, 2011; Northrup, 1984).
Why did this strike fail, while Alberta nurses and, more recently, Ontario education workers and red-state teachers partially succeed? Certainly, it was not from lack of planning or member engagement. As well, while it might be tempting to think that the difference was President Reagan's hard right politics, it should not be forgotten that all of the governments involved in the other strikes were also deeply conservative and generally hostile to unions. Perhaps, then, the most important factor in the success of the other illegal strikes was the union's ability to make its case to the public that they were low-paid workers who were also fighting to protect the quality of public services. This was not the case for air traffic controllers who were well-paid, even compared to most unionized workers, and who failed to convince the public that their strike was not just about wages but also aimed to protect the safety of the flying public by reducing the incredibly stressful conditions of their work. In the absence of broad public sympathy, or the ability to garner strong support from the rest of the labour movement, President Reagan was unconcerned that he would pay a political price for his actions.
C. POLITICAL STRIKES: DIRECTLY CHALLENGING THE STATE
Political strikes, defined as strikes that aim to influence or alter government action outside of the context of negotiating a specific collective agreement, are uncommon in the North American context,19 but not unheard of and remain a potential tactic for a beleaguered labour movement. But as noted, the boundary between lawful economic and illegal political strikes can be blurry. This was illustrated in the 1919 Winnipeg General Strike, Canada's best known general strike. While the idea of a general strike is often associated with revolutionary activity, perhaps most famously but not originally by Rosa Luxemburg (1906), the origin of the Winnipeg General Strike was an attempt by the metal and construction trades to establish collective bargaining with their respective employers. Faced with employer recalcitrance, both trades struck and soon thereafter the Winnipeg Trades and Labour Council voted to strike in solidarity. In the ensuing weeks, the Strike Committee became involved in coordinating and maintaining essential services, which was used as evidence by strike opponents that the strikers were usurping state power. Ultimately the militia was called up, a bloody confrontation ended the strike, and its leaders were prosecuted for seditious conspiracy based on the theory that the strike aimed to overthrow the lawful government, which clearly was not the case. Nevertheless, the strike leaders were convicted (Kramer & Mitchell, 2010). That year several other, smaller general strikes occurred to support local strikes, but none were as large or attracted as repressive a response as in Winnipeg (Kealey, 1984). Thus, while in practice, the distinction between economic and political strikes may not always be clear (MacNeil, 1988), it is useful analytically.
Since 1919 there have been very few general strikes in Canada. As discussed below, under contemporary regimes of industrial legality, they are almost always illegal because participating workers are violating mid-term strike ban. Nevertheless, there have been several political strikes (Leier, 2003) when unions defied the law or pressed its limits in response to state actions that, in their view, profoundly attacked basic labour rights.
The first and only Canadian national general political strike was a "Day of Protest" on October 14, 1976, called by the Canadian Labour Congress in response to the federal government's imposition of wage and price controls. Over 800,000 workers participated, but this limited action was, as named, a protest rather than a concerted effort to pressure the government to repeal wage controls." Predictably, the federal government stayed the course and, since then, has never faced the threat of a national political strike (Evans et al., 2023).
The Day of Protest, however, provided an opportunity to clarify the legality of political strikes as some employers sought labour board orders enjoining workers from participating. The Ontario labour board was unequivocal; it interpreted the statutory definition of a strike broadly to encompass any collective activity that disrupted the employer's operation, even if its purpose was to influence the government, not the employer." The BC board reached the opposite conclusion based on a different statutory definition, but in 1984 a right-wing government amended the strike definition to cover all concerted withdrawals that disrupted production. This is now the definition of a strike in all but three Canadian jurisdictions." (Adams, n.d., §11:2; MacNeil, 1988; Wright, 1998, pp. 44-57).
Their illegality, however, has not completely stopped Canadian unions from conducting political strikes. A few examples from BC and Ontario are illustrative. In 1983 a newly elected right-wing government in BC introduced a package of 26 bills that stripped collective bargaining rights for public sector workers and rolled back human rights and renter protections, among others. An extra-parliamentary opposition formed comprising the labour movement and community groups under the banner "Solidarity." They organized mass rallies and some public sector workers took strike actions. As momentum was building toward a general strike by public sector workers, leaders of the BC Federation of Labour made a deal with the government that salvaged some bargaining rights and protected workers and their unions from retaliation for their actions to that point. Much has been written about these events, ranging from condemnations of a labour bureaucracy that sabotaged an emergent militant grassroots struggle to more pessimistic assessments of what was possible in the moment. In both accounts, however, there is general agreement that labour leadership's commitment to the norms of industrial legality weighed heavily against support for a broader mobilization to challenge state authority (Richmond & Shields, 2011). In any event, the actions of the Solidarity movement did not deter the BC government from continuing its assault of labour rights (including the prohibition on political strikes in 1984), leading to another confrontation in 1987 over anti-union legislation. This time, the BC Federation of Labour organized protests anda one-day general strike that attracted 300,000 workers designed as a limited protest rather than a political strike challenging the government. The limited nature of the action was recognized by the BC Supreme Court which dismissed an application by the government after the event to enjoin any further strikes as a seditious conspiracy to subvert the democratic process.23
A similar pattern of political strikes as days of protest occurred in response to the 1995 "Common Sense Revolution" initiated in Ontario by a newly elected right-wing government to roll back labour, equality, and welfare rights. In response, a number of community groups and the Ontario Federation of Labour organized "Days of Action," involving rolling one-day general strikes in several Ontario cities. The largest was in Toronto where about 200,000 people took to the streets, including a large number of public sector workers, particularly teachers, who struck illegally. Most private sector unions, however, did not participate. While the Days of Action were an impressive display of grassroots militancy, the strategy fizzled as there was no plan to build on the momentum by organizing a province-wide general strike or other actions. The "Days" did not influence the government; it neither moderated any of its measures nor was it deterred from continuing its "revolution" (Camfield, 2000).
Ontario's teachers were the target of the governments next assault on labour rights. The Ontario Teachers Federation, a federation of the five major teachers' unions, called a job action dubbed as a political protest. Picket lines went up and parental support for the teachers was high. The government attempted to secure an injunction ending the strike but failed for technical reasons. This was perhaps the largest and most sustained illegal political strike in Canada but, again, rather than trying to build on its momentum, three of the five teacher unions ordered their members back to work, proclaiming a moral victory even though the government had toughened the bill without making any compromises (Camfield, 2000; Glasbeek, 1999; Palmer, 1996). The strike collapsed and the offensive legislation was enacted. Teachers struck again during the 1998 round of bargaining, which the government ended by unfavourable back-to-work legislation and the teachers returned to work (Rose, 2022).
These case studies indicate that even when Canadian workers have evinced a willingness to engage in unlawful political strikes when outraged by government legislation attacking what they view as fundamental rights, union leaders are not prepared to go beyond organizing limited protests. This reluctance is, no doubt, partially rooted ina prudential calculation of the serious penalties that might be imposed on the union and its leadership for engaging in a full-blown political strike, but it also likely reflects a discomfort with extra-parliamentary political opposition more generally.
V. CONCLUSION: WHITHER LABOUR AGAINST THE LAW?
This article began with what at first glance appears to be an outstanding example of the potential for unlawful strikes to challenge repressive regimes of industrial legality that sharply limit the freedom to strike. Ontario education workers struck in defiance of pre-emptive back-to-work legislation, and the government backed down. But the strike was not without its ironies. Perhaps the most significant was that in many ways it was a strike to defend the existing, very restrictive regime of industrial legality, not change it. Arguably, the most offensive aspect of the government's bill was its invocation of the notwithstanding clause to preclude the union from challenging its constitutionality. Thus, not only did the law violate norms of industrial legality, but it also transgressed a constitutional norm by denying workers the opportunity to vindicate their Charter rights. Second, the legislation was exceptional even by the recent standards because it imposed a contract rather than referring outstanding matters to binding interest arbitration. Had the law been enacted after the strike commenced, referred outstanding matters to binding interest arbitration, and not invoked the notwithstanding clauseitis unlikely that, even if education workers had continued to strike illegally, they would not have enjoyed massive public and labour support. Nevertheless, a successful unlawful strike, even one defending a highly restrictive regime of industrial legality from further attacks, still demonstrates that, in the right circumstances, unlawful strikes can be a potent weapon in labour's repertoire and contribute to a revitalization of labour militancy. The very fact that workers defied the law and won is likely to build confidence that militant action can succeed.
It is impossible to prescribe the right circumstances for unlawful strikes given the variety of regimes of industrial legality, the forms of illegal action and the different historical practices of labour movements and states.24 Perhaps the most general lesson is that the decision to engage in unlawful action should be treated as a tactical choice rather than ruled out entirely or limited to being a safety valve, as now seems to be the predominant attitude of most labour leaders. No doubt the regime's highly coercive framework for enforcing restrictions on the freedom to strike explains much of the leadership's reticence. Not only may they be punished personally, $0 too may the union as an institution. However, that reticence is also reinforced by the fact that today's unions have been shaped by the legal frameworks that gave them legitimacy and facilitated their recognition as bargaining agents. As Offe and Wiesenthal (1980, рр. 106-109) argued, while union power derives initially from the demonstrated willingness of workers to strike, concessions are premised on the ability, and sometimes the legal obligation, of unions to restrain that militancy. The resulting commitment to industrial legality is perhaps reinforced by a belief that playing strictly by the rules and being responsible trade unionists pays material dividends, a belief reinforced by faith that workers interests will be adequately protected by the election of social-democratic or liberal leaning governments. Building a militant labour movement with a transformative vision, therefore, is not a goal, and unlawful strikes are to be opposed.
However, if the compromise with capital begins to unravel and external support from liberal and social democratic governments becomes attenuated, as arguably has happened in recent decades, then rebuilding grassroots militancy may become a strategic priority, and breaking out of the bounds of industrial legality, including by engaging in unlawful strikes, a tactic. But militancy and a willingness to defy the law cannot be turned on like a switch; it must be built from the ground up, based on the lived experience of workers. Successful unlawful action requires unions to have tapped into workers discontent and built a culture of solidarity (Fantasia, 1988) that will help withstand the pressure that employers and the state will likely bring to bear. But while internal preparedness and broad participation are necessary, they may not be sufficient as demonstrated by the PATCO strike. Unions must also seek strong public support for their action, as well as support from the broader labour movement. Public sector workers, particularly education and health care workers, have been quite successful in linking their collective bargaining demands to the protection of public services. Private sector unions face bigger challenges in defeating the mainstream media image of them as self-interested organizations benefitting their members at the expense of others, but the recent lawful strike by the UAW provides an example of how unions can explain their fight as one for fairness for all workers. Re-building support within the North American labour movement for sympathy strikes, particularly in the private sector, is perhaps even more challenging than convincing the broader public of the justness of union demands, but the experience of seeing that even threat of a general strike helped force the Ontario government to back down might contribute to labour's reorientation.
In sum, unlawful strikes are hardly a panacea for a labour movement whose militancy has been eroded by decades of neo-liberal and neo-authoritarian assaults on labour rights and collective bargaining. Nevertheless, historically strikes, both legal and illegal, have been the crucible in which the labour movement was built. Rebuilding the capacity to strike and reviving unlawful strikes as a tactical choice should be part of an iterative process in which action and changing consciousness of what is possible can be mutually reinforcing.
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* Osgoode Hall Law School, York University, Canada. I would like to thank David Camfield, Harry Glasbeek, and Tonia Novitz for helpful comments on an earlier draft.
1. The term industrial legality, first coined by Antonio Gramsci, refers to the phenomenon in capitalist democracies of relying on law and the state to mediate the conflicts between labour and capital through law, typically involving some recognition of workers right to organize and bargain collectively while also containing industrial conflict within limited boundaries. Industrial legality is institutionalized in a variety of ways, described here as regimes. For a more extended discussion, see Fudge & Tucker (2001, pp. 1-15).
2. I make no claim that the case study is "exemplary" in the sense that it provides a template for how to organize an unlawful strike or that it is representative of unlawful strikes generally. Rather, case studies are useful because they provide insight into a complex phenomenon that may be lost when the analysis moves to higher levels of abstraction.
3. Keeping Students in Class Act, S.O. 2022, c. 19.
4. Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule В to the Canada Act 1982 (UK), с 11. For a recent overview of constitutional labour rights in Canada and their limited impact on government strategies for legislative interference with public sector collective bargaining, see Foster et al. (2023).
5. The bill also barred legal challenges under the provinces Human Rights Code, R.S.O. 1990, c. H. 19 and Labour Relations Act, S.O. 1995, c. 1, Sched. A (LRA).
6. Under Ontario labour law, labour board orders can be filed with the superior court and enforced as court orders.
7. An Act to repeal the Keeping Students in Class Act, S.O. 2022, c. 20, ss. 1, 3.
8. These prohibitions are common in the EU and have been endorsed by the European Court of Human Rights (Mutluer, 2024).
9. There is an individual right to refuse unsafe work but not a collective one. The US prohibition is not based on a statutory prohibition but on express or implied clauses in collective agreements and is subject to negotiated and implied exceptions (Craver, 2012).
10. Canada Industrial Relations Board, Order 1460-NB, 19 July 2023.
11. Also, see Palmer (2009, pp. 222-223).
12. For example, see various provision of Act to Amend the Labour Relations Act, S.O. 1970, c. 85.
13. For an example of an unlawful protest against a strike ban imposed on private sector workers, see Stevens and Nesbitt (2014).
14. Public Service Staff Relations Act, S.C. 1967, с. 72. For an excellent discussion of the act and its background, see Trudeau (1983). Saskatchewan was the first Canadian jurisdiction to provide public sector workers with the right to strike in 1944. Quebec followed in 1964.
15. The union unsuccessfully challenged the legislation as a violation of the freedom of association guaranteed by the Charter of Rights and Freedoms. This was one of so-called original trilogy of cases heard by the Supreme Court of Canada, which at the time effectively denied meaningful constitutional protection of labour rights. Reference Re Public Service Employee Relations Act [1987] 1 S.C.R. 313.
16. The unions challenged their conviction on a number of grounds, all of which were ultimately rejected by the Supreme Court of Canada in United Nurses of Alberta v. Attorney General (Alta) [1992] 1 S.C.R. 901.
17. Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia [2007] 2 S.C.R. 391, 2007 SCC 27.
18. HEABC v. Facilities Subsector Bargaining Assoc. 2004 BCSC 603. In holding HEU in contempt, Bauman J. emphasized that "this case is not about politics, economics social or other ills; it is about the rule of law... Adherence to the rule of law is what buffers an ordered society from anarchy" (paras. 14-16). The judge postponed his decision about remedies but warned HEU officials that they faced potentially onerous fines and imprisonment. He then called upon the union to use "your better instincts as responsible citizens - as responsible trade unionists" (para. 53). The following month, after the strike had ended, Bauman, J. fined the union $150,000 for its contempt taking into account by way of mitigation that the union maintained essential services during the strike and ordered its members back to work after the contempt citation. HEABC и. Facilities Subsector Bargaining Assoc. 2004 BCSC 762.
19. See Leier (2003) for a partial inventory of political or politically tinged strikes in Canada both before and after the adoption of the WAM.
20. There were also a number of local political strikes to protest the federal government's measures (Leier, 2003).
21. Domglass Ltd. And United Glass & Ceramic Workers of North America et al. [1976] 2 Can. L.R.B.R. 394 (Carter).
22. British Columbia Hydro and Power Authority and 1.B.E.W., Local 258 and Local 213 [1976] 2 Can. L.R.B.R. 410 (Weiler); Labour Relations Code, RSBC 1996, c 244, s. 1(1).
23. B.C. (A.G.) v. Georgetti 1987 CanLII 2656 (BC SC).
24. The following reflections draw on many of the authors previously cited, including Blanc (2020), Burns (2014), Camfield (2009), Reddy (2020-2021), and White (2018).
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