UAW's strike strategy exploits leeway created by expired contract

The UAW's plan to strike only a handful of plants to pressure the Detroit 3 into better contracts would, under most circumstances, be illegal.

Workers at individual plants can strike only over local bargaining issues, and UAW President Shawn Fain made clear that the walkouts he plans to order late Thursday in the absence of new deals with the automakers would relate to national issues.

But labor law experts say the union has legal cover to implement its unprecedented "stand-up strike" plan because it would be happening under an expired contract.

Any walkout would occur only after the current four-year deals run out at 11:59 p.m. Thursday. Fain said the union absolutely will not agree to extend the contract, which has often happened in past negotiations if a deal seems close.

Most terms and conditions of the contract continue to be enforced after it expires, and management must maintain the status quo on items such as wages, overtime pay, bonuses, break time and profit sharing. But the contract's no-strike clause also expires, along with provisions related to arbitration, union security and management rights.

The expiration of that no-strike clause gives the union leeway to strike at whatever plants it wants, experts told Automotive News.

"This allows our union to call on a local to stand up and strike at a moment's notice," Ben Dictor, the UAW's legal counsel, said Thursday in a video explaining the situation to members.

Fain said the UAW planned to increase the number of striking plants as more time passes without a deal as a way of keeping the companies guessing and maximizing the union's leverage.

Even if the union engages in illegal strike tactics and the automakers file unfair labor practice charges with the National Labor Relations Board, such legal action may not serve any practical purpose.

Any case would likely take months to litigate, said L. Steven Platt, an attorney at Howard & Howard specializing in labor law. The two sides likely would come to a tentative agreement well before any ruling is made, making the case moot.

In the meantime, taking such legal action could backfire and cause a further rift with the union amid what already have been unusually contentious negotiations.

"It doesn't seem like management is looking to inflame the issue," Platt said.

Experts also said automakers might opt to preemptively close additional plants as a tactic to diminish the union's leverage. That also would be a costly move, because it would cut production more than necessary and could force the companies to compensate workers not eligible for strike pay in some states.

"You really don't want this to go on for a long period of time," said Art Wheaton, director of labor studies at Cornell University.

Marick Masters, a management professor at Wayne State University in Detroit, said he doesn't expect the automakers to passively wait for the union to announce more plants that will go on strike. He said it's possible the companies might decide to shut down their facilities first.

"I just don't think they'd want to be in that vulnerable position," Masters said. "The companies are going to use whatever they have to respond. ... and I'm certain that their legal teams are working around the clock now to come up with ways in which they can handle this."

Wheaton said it would not take long for a strike against components plants to affect the assembly lines they supply. Automakers don't have thousands of engines on the sidelines waiting to be put into vehicles, he said.

"It only takes one part to not finish them," he said. "We saw that with the computer chips."

That trickle-down effect could reach dealerships if the UAW strikes parts distribution centers, Wheaton said. Not only would dealers have problems receiving new vehicles if assembly plants are not running, but taking parts centers offline would constrain dealerships' service business because they couldn't get parts to fix their customers' vehicles.

"It impacts not just the vehicles that you're going to sell now," Wheaton said. "It impacts all the vehicles you sold previously, and that could hurt your brand loyalty."

While the UAW has been adamant it's ready to strike if necessary, Platt suggested that Fain releasing details of the union's plans a day in advance could be a ploy to scare the automakers in the final hours of negotiations.

"What they've done through all the theatrics is try and ramp up the pressure on management and gain leverage," he said. "It may all be a bluff."