Can Workers Bargain Over Bombs?
Megan Wachspress is a Staff Attorney at the Sierra Club.
PUBLISHED 02.14.24
On December 1, the UAW International Executive Board called for a ceasefire between Israel and Palestine. That was, in itself, major news—as of this writing two months later, only a small minority of Congressmembers have made such a call. But that was only the first part of the announcement. The Executive Board also voted to form a Divestment and Just Transition working group “to study the history of Israel and Palestine, the union’s economic ties to the conflict, and to explore how to achieve a just transition for US workers from war to peace.”
It is not yet clear what this “transition” will entail, and “divestment” may mean only the termination of union investments (through pension funds or otherwise) in Israel or Israeli military-linked securities. But the statement offered a tantalizing possibility, one that would make this a watershed moment in the nascent history of social justice unionism in the United States: What if UAW workers were to divest their labor from the construction of weaponry? What if the union tried to bargain over who employers sell their products to, or what products employers choose to make?
There is no legal precedent supporting the right to bargain over such issues, and reason to believe courts and the National Labor Relations Board would look skeptically at or outright reject such a claim. However, the purpose of this post is to argue that there is a path for unions to engage in such bargaining within the framework of the National Labor Relations Act as it currently exists, although pursing it will require certain ideological compromises. More specifically, I propose that unions can appeal to the concept of “moral injury” to make their complicity in the military-industrial complex a mandatory subject of bargaining, and thus justify at least a partial divestment of their labor.
Subjects of Bargaining
Under section 8 of the National Labor Relations Act, employers are required to bargain “in good faith” with their employees “with respect to ‘wages, hours, and other terms and conditions of employment.’” An employer’s failure to bargain over these issues—known as “mandatory subjects of bargaining”—constitutes an unfair labor practice. However, for matters beyond those issues—permissive or nonmandatory subjects of bargaining—“each party is free to bargain or not to bargain, and to agree or not to agree.”
This distinction is of enormous legal and practical significance. Because only a failure to bargain over mandatory subjects is considered an unfair labor practice, an employer may refuse to discuss permissive subjects at all without any legal repercussions. Because strikes are only lawful when aimed at unfair labor practices or as a result of an impasse on mandatory subjects of bargaining, union workers who strike to achieve workplace goals that fall within the category of permissive subjects are bereft of the legal protections (including a prohibition on termination or permanent replacement) that strikers objecting to a final offer or failure to bargain on mandatory subjects of bargaining enjoy. Indeed, if employees or an employer refuse to bargain over mandatory subjects until the other side agrees to a stipulation that falls in the realm of non-mandatory subjects (e.g., an employer insists on the presence of a court reporter during bargaining sessions as a condition to holding those sessions), that refusal itself is an unfair labor practice that opens the door to legal liability. In short, without overstating the protectiveness of the NLRA or understating the power of wildcat strikes, unions seeking to achieve a particular goal on behalf of workers will face considerably more challenges and risks if that goal—in the view of the National Labor Relations Board or the courts—is not considered to be a “term [or] condition of employment,” and thus not considered a mandatory subject of bargaining.
What counts as a mandatory subject of bargaining is, perhaps unsurprisingly, a contested and complicated question. In answering it, the Supreme Court, in First National Maintenance Corporation v. NLRB, posited a tripartite division of topics: (1) management decisions that “have only an indirect and attenuated impact on the employment relationship,” such as “choice of advertising and promotion, product type and design, and financing arrangements,” where bargaining is not required; (2) decisions that “are almost exclusively” concerned with the relationship between employer and employee, such as “the order of succession of layoffs and recalls, production quotas, and work rules,” where it is; and (3) decisions that have “as [their] focus” economic profitability, but have a “direct impact on employment.” In this latter case, the Court, privileging the employer’s “need for unencumbered decisionmaking” as to the business, held that bargaining will only be required “if the benefit for labor-management relations and the collective-bargaining process outweighs the burden placed on the conduct of the business.”
This framework presents a seemingly insurmountable legal barrier to using collective bargaining to refuse to produce military goods. The “choice of… product” seemingly falls within the firmest category of management prerogative in the First National Maintenance triad. To “divest” from US military support for Israel, UAW would have to bargain over an employer’s choice of contractual counterparties.
Bargaining for the Common Good
In recent years, certain unions—represented most prominently by the teachers’ union strikes in 2012 and 2019 in Chicago and in 2019 in Los Angeles—have attempted to expand the scope of bargaining issues by pursuing social justice unionism. “Social justice unionism” is a model of labor militancy whereby workers demand structural changes to the institution in which they work and strike on behalf of the concerns and needs of community members who are their clients or neighbors, not their coworkers. Social justice unionism differs from both professionalist challenges (i.e., attempts by professional employees to bargain over self-governance or duties) and protectionist challenges (i.e., bargaining about “economic” department closures) to the scope of bargaining because it seeks to bring a set of third-party beneficiaries to the labor contract. Social justice unions are not interested in just exerting greater control over their workplaces, but in transforming the political and social formation of the union into a vehicle for exerting power in a broader policy realm that intersects, but is not coextensive with, their work and place of employment.
These strategies provide an important model for how workers can broaden coalitions and expand the terrain on which contract battles are fought. However, there are important differences between the classroom and the shop floor that limit the direct applicability of this approach to the UAW. In striking “for the common good,” teachers unions’ have walked a fine line in public statements and formal unfair labor practice charges, calling upon widespread support for a set of community-oriented goals to sustain strikes while identifying a partial or different set of demands as the legal basis for walking out. The tension raised by these tactics is mitigated by the fact that “teachers’ working conditions are students’ learning conditions” is a mantra for a reason – smaller class sizes, e.g., are both a social benefit and a condition of employment closely tied to workload. In the industrial setting, the nexus between the day-to-day experience of the worker and the target of the technology they build is much more tenuous.
Moral Injury
There is, however, a different approach the UAW could take: I propose that moral injury offers a conceptual framework that workers can invoke to make their complicity in the military-industrial complex a mandatory subject of bargaining. A relatively recent concept in clinical psychology (although, according to one set of authors, dating back at least as far as Euripides), moral injury describes the distress experienced by an individual who is forced, through circumstances, to commit or observe (without intervening) acts she or he finds morally repugnant. During the worst of the COVID-19 pandemic, many nurses and doctors described experiencing moral injury as they lacked adequate equipment or staffing to provide care to sick individuals at the level they had been taught was necessary to uphold their professional obligations. Indeed, doctors invoked their experiences of moral injury, not just during the pandemic but as a result of the routine barriers set up to health care by the U.S. medical system, as a reason for the largest strike of health care workers in U.S. history, the 2023 California Kaiser system strike.
But moral injury is not limited to the medical context. Applied to the context of a stereotypical UAW worker, a factory employee would experience moral injury if told she or he must help construct a tank that the worker knows will be put to use to carry out genocidal acts, or be terminated from their position. In the tripartite framework of First National Maintenance Corporation, the decision to make a chassis not for a truck but a tank is focused on “economic profitability,” but also has a “direct impact on employment” inasmuch as the worker assigned to make this new product will suffer emotional and psychological distress as a result. An employer’s decision to take on such a client would thus fall within the third category of employer decisions. Unions could then argue that the benefits to employees of being able to negotiate over the process for assigning employees to such products and employees’ right to refuse such work outweigh the burden placed on the employer.
The strength of such a claim would be buttressed by precedent from other contexts privileging religious convictions as the basis for legal claims to some degree of state protection from economic vulnerability associated with the employer-employee relationship. The Supreme Court has recognized that industrial employees have a legitimate religious interest in abstaining from the production of weapons, holding Indiana could not deny unemployment benefits to a Jehovah’s Witness who resigned rather than be transferred to a department that produced turrets for military tanks. Likewise, unions could demand that they be able to compel (on penalty of a ULP charge and ultimately a legally protected strike) their employer to negotiate over a mechanism to allow employees to opt out of departments or projects where the product will be used to commit morally objectionable acts.
Admittedly, this strategy carries some strategic risks. Moral injury, after all, is the justification invoked by “closely held” corporations in evading their obligation to provide birth control and pharmacists who refuse to distribute Plan B. Invoking the kinds of moral claims typically adopted by fundamentalist Christian groups to limit companies’ ability to build drones for bombing Gazans may seem like a smart strategic play, but, as the Fifth Circuit recently demonstrated in its selective embrace of “aesthetic injury” for anti-abortion doctors but not environmentalists, right-wing judges do not feel particularly obligated to apply doctrines neutrally depending on the viewpoint espoused by a plaintiff. Unions that claim moral injury as a mandatory subject of bargaining (this counterargument goes) risk strengthening other entities’ ability to legally refuse reproductive or other disfavored health care, or more abstractly and broadly, reinforcing the legal cultural notion that individual moral beliefs are to be privileged over the common good (a tendency that courts are most likely to recognize and validate when held by white, male Christians).
But unlike the claims of the closely-held corporation or the pharmacist, any union claim to moral injury is by its nature a collective claim. Union bargaining demands are subject to majoritarian mechanisms of approval—if not directly, then by elected representatives. Striking in support of a contract term aimed at protecting workers from moral injury requires an authorization vote and (as a practical matter) widespread support among union members. Moreover, demands founded in moral injury are more likely to pass the balancing test of First National Maintenance Corporation v. NLRB if they are aimed at shielding individual workers—protecting their ability to opt out without repercussion—rather than insisting that an employer forgo a product or customer altogether.
The flip side of this criticism is a deep irony: I am proposing a means of achieving collective worker power in influencing foreign policy by way of a highly individuated, religious and psychological phenomenon. Arguably, reliance on one’s individual, personal, emotional relationship to one’s labor is actually a betrayal of social justice unionism, which is aimed at transcending the transactional quality of business unionism and reasserting unions’ role as political organizations beyond the boundaries of the workplace. For instance, the idea of “moral injury” as a mandatory subject of bargaining would be unlikely to help workers agitating for changing company policies, such as the Amazon workers who demanded the company accelerate its commitments on carbon emission reductions last May, since they do not require the employee to personally contribute to an object or situation that causes human suffering.
But the limits on such a legal strategy may actually buttress its effectiveness. Because there are a category of worker demands that cannot plausibly be described as implicating the moral integrity of the employee, opening up bargaining to “moral injury” cannot be said to give employees the keys to the company or eviscerate management discretion altogether. The theory is self-limiting. Under conditions of neoliberalism, and facing a deeply hostile judiciary, the invocation of personal morality may be a means of constructing a legal scaffold on which a social justice political orientation can be developed within unions and, in the meantime, those unions can have a material impact on US corporations’ contribution to global atrocities. That is, if the UAW or other unions are prepared to pursue a legal strategy to achieve the proposed divestment. I very much hope they do.
