Joe Burns is a labor attorney and negotiator and the author of Reviving the Strike, and he says unions need to be prepared to commit acts of civil disobedience if they want to be effective:

For now, retail workers have positioned themselves smartly by striking over employers’ unfair labor practices. Legally, ULP strikers cannot be permanently replaced, and they avoid restrictions on intermittent strikes.

Ultimately, though, the goal must be to force concessions from employers, big enough concessions to convince workers of the benefits of unionization. It is unlikely that legal, short-duration, harassing strikes can force such concessions from the nation’s largest corporations.

Unions cannot escape the fact that effective strikes will mean civil disobedience and illegal tactics that disrupt business as usual.

We can look to history for guidance. In 1958, there were only 15 public employee strikes in the entire nation. Public employee unions were weak and ineffectual. Their leaders did not believe in the right to strike, and most union constitutions prohibited striking.

Yet a generation of union reformers fought for a change in strategy. They removed the strike prohibitions from their union constitutions and boldly asserted their right to violate injunctions.

In one of the greatest campaigns of civil disobedience in U.S. history, between 1 million and 2 million public workers engaged in illegal strikes during the 1960s and 1970s.

Through this illegal strike wave, public workers won contracts, improved the lives of public employees nationwide, and even forced reluctant legislatures to legalize striking in many states. Union density in the public sector rose from 9 percent in the late 1950s to almost 40 percent in the mid-1970s.

CONSTITUTIONAL RIGHT

Breaking free from the legal restrictions surrounding strikes will not be easy, but the first step is calling things what they are. Restrictions on picketing are restrictions on our right to free speech: censorship, pure and simple.

Judges use a variety of rationales to justify their censorship of workers, including saying that picketing is somehow not real speech or is not truly political speech.

That is ridiculous. A picket is words on a sign that communicate a message: to the employer, to the public, to fellow workers. And unionism is intensely political, dealing with the distribution of wealth in society—exactly the kind of speech the constitution was intended to protect.

Yet in the wake of the Walmart injunction, the labor movement has been virtually silent about these restrictions on freedom of speech.

TO BREAK THE LAW
The success of any strike-based strategy hinges on the labor movement’s ability to reject illegitimate constraints and embrace the violation of restrictive labor laws.

Here again retail workers can point the way. After Shalonda Montgomery was fired in retaliation for last fall’s one-day fast food strike in New York, restaurant workers and supporters briefly took over the lobby of a Brooklyn Wendy’s until management reinstated her.

Likewise, when owners of the Hot and Crusty sandwich shop in New York closed in retaliation for forming a union, workers relied on direct action—including a sit-in by Occupy Wall Street allies, with six arrests—rather than the NLRB. They forced the store to reopen and sign a union contract.

The January court ruling that may invalidate past and future NLRB decisions for lack of a quorum should provoke discussion about breaking free from the rules of the game.

After all, anti-labor forces are trying to keep the NLRB from enforcing even the minimal protections of labor law. That gives worker organizations a strong moral argument for violating the law ourselves.

Why should we be obliged to follow a set of labor laws that Congress and the courts refuse to enforce?