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On January 28, the New York Taxi Workers Alliance called an hour-long work stoppage as a way to express their opposition to President Trump’s Executive Order banning immigration from seven Muslim majority countries and suspending refugee intake. A week later, Yemeni-American bodega owners in New York City protested the Order by closing their businesses and holding a thousands-strong protest in Brooklyn. On February 16, as part of an action called A Day Without Immigrants, thousands went on strike to highlight the contributions of immigrant workers. Each of these demonstrations employed the tactic of work stoppages to send a message. Each was labeled a “strike” in the media. But unlike traditional workplace strikes, the protesters’ messages were not targeted exclusively or even primarily at their employers.
Similar “political strikes” might become more common in the era of President Trump. The organizers of the Women’s March on Washington have joined in the call for “A Day Without a Woman” on March 8 – International Women’s Day – in solidarity with an International Women’s Strike. If women respond in large numbers as they did to the march, the Day could mark the largest political strike in this country’s history.
Such actions are not without risks. At least one hundred workers were fired for participating in the Day Without Immigrants. Ten years ago, the first Day Without Immigrants strike was held to protest legislation that increased barriers to hiring immigrant workers. Then, too, many strikers were fired or faced other forms of retaliation.
So, what can be learned from the Day(s) Without Immigrants to minimize risks for those who choose to take part in A Day Without a Woman?
A guidance letter issued by the National Labor Relations Board following the 2006 Day Without Immigrants provides some instruction. The letter suggested that the Board will consider two factors when determining whether workers are shielded from retaliation for participating in political advocacy: the workers’ objectives and the means employed.
Are the objectives of A Day Without a Woman protected under the National Labor Relations Act?
The website for the women’s strike lists six principles around which participants are uniting: An end to gender violence, reproductive justice for all, labor rights, full social provisioning, anti-racist and anti-imperialist feminism and environmental justice for all.
The National Labor Relations Act protects workers from retaliation if they take part in “concerted activities for the purposes of collective bargaining or other mutual aid or protection.” The Supreme Court has interpreted the “mutual aid or protection” clause to protect workers who take part in coordinated advocacy, even if the target of that advocacy is someone other than their direct employer, such as a politician. However, political advocacy is only safe from retaliatory action if its subject matter has a sufficiently ‘immediate relationship to employees’ interest as employees.’
Because the 2006 Day Without Immigrants strike was specifically targeted at a piece of legislation that impacted the strikers’ interest as employees, the NLRB’s guidance letter stated that its goals were protected under the “mutual aid or protection” clause.
But A Day Without a Woman is organized around a much wider-ranging platform than the 2006 strikes. This matters because the NLRB has previously found that wider-ranging advocacy campaigns do not create protective umbrellas over participating workers, in the same way that targeted campaigns might. In the NLRB case Five Star Transportation, Inc., for example, the Board held that six bus drivers who sent complaints to a local school committee about their working conditions had taken part in protected activity. Five of their colleagues who wrote to the committee with concerns about student safety, however, were not protected. This despite the fact that all eleven had been part of one coordinated letter-writing campaign.
In wider-ranging campaigns, the NLRB might only consider individual participants who personally express complaints with a “direct nexus” to their working conditions to be shielded from retaliation.
Is striking a protected means of attaining A Day Without a Woman’s objectives?
In Eastex, Inc. v. NLRB, the Supreme Court clearly held that that workers’ distribution of newsletters containing political appeals to non-employer third parties was protected activity. The court hedged on the reach of their holding though, stating that “[t]he argument that economic pressure [such as strikes] should be unprotected…is more convincing.” In the NLRB’s guidance letter, the General Counsel cited this passage to support a position that political strikes are not protected activity. Whether the NLRB under a Trump administration will take a similar position, and whether courts will enforce it, is yet to be seen.
What actions can workers at risk of retaliation take to protect themselves?
In the lead up to the Day Without Immigrants, the Centro de Trabajadores Unidos en Lucha (CTUL) suggested that their members who wanted to participate should take three precautions to mitigate their risks:
Women who want to participate in A Day Without a Woman could consider taking similar actions. Still, participants should be aware that these steps do not guarantee protection. The NLRB might deem any participation in a “political strike”, even with workplace-specific demands, to be unprotected. Challenging employer actions to the NLRB is time consuming, sometimes expensive, and outcomes under the new administration are unpredictable. Still, for those who plan on participating anyways, taking these steps might open up communication with employers and prevent retaliation before it takes place, and having a reason for striking in writing could build a more compelling argument for reinstatement. Like any concerted action, participating in A Day Without a Woman has risks, and each woman will have to determine whether the risks are worth it.
How can workers who are not at risk of retaliation help enable the participation of those who are?
One person on the “Istrikefor” hashtag tweeted “I strike for women who can’t afford to: the poor, undocumented, working class, caregivers.” This sentiment has been expressed a number of times on the hashtag.
Clearly, some women face less risk in striking than others. Yet, those who do should recognize that history is filled with women who took part in, and indeed led social movements, in the face of intense personal risk. Rather than marching for those women, people in more privileged positions should think of how they can support others who will surely show up despite the possible fallout.
Some ways in which women who face no risk for participating can support those who do include:
Given the huge turnout for the Women’s March on Washington, and the momentum that protest built, A Day Without a Woman could turn out to be a similarly historic event. Women who plan on participating should take whatever precautions they can to protect themselves from retaliation so that in the days following the protest they can continue working for pay, at the same time as they continue to work for political change.
Leora Smith is a student at Harvard Law School.