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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.
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...