(Photo: bob watt / Flickr)This is the fifth article in the Judicial Amendment Project on the history of the NLRA. The stories in the series to date include:

1. Why Today the National Labor Relations Act Is a Weak Law – and How We Can Restore its Power 28 March 2013

2. Judicial Amendments and the Attack on Worker Rights 4 April 2013

3. Solidarity NOT Forever: How the Supreme Court Kicked Retirees Into the Gutter 11 April 2013

4. Strike and You’re Out: The Supreme Court’s Destruction of the Right to Strike 25 April 2013

There is no question that employees’ right to strike increases unions’ bargaining power. Last week, we discussed how the Supreme Court decision that gave employers the right to permanently replace strikers changed the balance of power by weakening labor’s strike weapon.

Unfortunately for unions and employees, permanent replacement of strikers is not the only blow to the power of strikes. The court, followed by the National Labor Relations Board (NLRB) and lower courts, has limited union strikes in many other ways.

In the early days after passage of the National Labor Relations Act (NLRA), the law was widely resisted by employers. One of those employers was Fansteel Metallurgical . In 1936 and 1937, Fansteel not only refused to bargain with its employees’ union, it also isolated the union president from the other workers and tried to impose a “company union” in place of the union the workers had chosen. A “company union” is just what it sounds like. It is a union in name only. It does not represent the employees because it is controlled by the employer instead of the employees. The NLRA made company unions illegal.

The Fansteel employees reacted to their employer’s blatant resistance to the law by starting a peaceful sit-down strike, refusing to leave the plant until they were ultimately forced out and arrested. The employer fired the sit-down strikers, but the NLRB ordered their reinstatement because they were only responding to their employer’s illegal conduct.

In 1939, the Supreme Court in NLRB v. Fansteel Metallurgical Corp . reversed the NLRB. The court decided that the employees could be fired because they were illegally trespassing on their employer’s property. It did not matter that they were protesting the employer’s clear violation of the NLRA. The Supreme Court held that the NLRB could not order the employer to reinstate its employees as a remedy for the employer’s unlawful conduct. As for the right to strike, the court said the NLRA protected only “lawful strikes.” Occupying the plant was not lawful and, therefore, it was not protected by the law. That decision meant that employers who violated the NLRA were given a “get out of jail free” card if their employees committed any illegal action.

While it seems only fair that an employer should not have to employ workers who violate the law, the context is important. These workers were among thousands who were using the most powerful weapon available to them to protest the many employers who simply ignored and blatantly violated the new law that labor had fought so hard to win.

What has followed from the Fansteel decision are a multitude of restrictions on unions’ right to strike. When the right to strike is unprotected, as in Fansteel , employees may be fired, not just replaced. An employee who has been fired has no right to return to work. An employee who has been permanently replaced has a right to be recalled to work if the replacement leaves. While being recalled is a slim right, it is better than none.

Although the NLRA does not limit the definition of “strike,” the only strike now protected by the NLRA is one where employees stop all work, leave the workplace, and give up all their pay for a period of consecutive days. The union cannot even lawfully time its strike to target an employer when it is most vulnerable. As a result, the strike has been weakened to a point where it is almost useless.

What is particularly shocking is that the right to strike has been eaten away by the courts when the NLRA in Section 13 says that the right to strike is not to be interfered with or impeded or diminished in any way, except by clear language in the NLRA itself. The NLRA nowhere limits the right to strike as the courts have done.

Here are a few examples of judicial amendments that have eroded the right to strike. In addition to the sit-down strike, employees can be fired for a slowdown strike. Employees cannot work at a slower pace to pressure their employer, even when the slowdown reduces the amount of their work to match a paycut by the employer.

A partial strike is also not protected. This means the employees can’t do just part of their work. Doing part of their work, but not all of their work, would allow employees to retain some pay while still pressuring the employer.

Intermittent strikes are not protected, either. Employees cannot strike for a few days, return to work for a few days and then strike again. If they strike, they must stay on strike, and if they return to work, striking again risks termination.

Each of these union tactics could be powerful employee weapons to pressure the employer while still earning income and making the employees’ replacement by the employer difficult. It is the very power these tactics give employees that has led judges to limit their use. None of these tactics is illegal, according to the courts, yet each is unprotected, so employees who try these tactics risk discharge.

Las t but not least, employees may not strike when the employer is most vulnerable to pressure, lest their conduct be found “indefensible.” Employees may be fired if they fail to take what the courts decide are appropriate steps to protect the employer from damage resulting from the decision to strike. Employees cannot walk off the job when it might cause damage to the employer’s equipment or leave the employer’s facilities unprotected. While these decisions may seem reasonable to avoid serious damage for employers, they each limit the power of employees in ways not contemplated by the NLRA.

Beginning with Fansteel , employees’ right to strike has been eroded by judicial decisions. As a result, the right to strike does not balance power between employees and employers. Instead, it erodes employee power by creating a quagmire of law where legal protection is uncertain and strikes are extremely risky for employees. No wonder that strikes are now so rare.