The Right to Strike in the Age of AI

I. Introduction

After months of stalled negotiations over an annual 2.5% wage increase, the 600-member New York Times Tech Guild, comprising software engineers, data analysts, and designers, walked out on the day before the 2024 presidential election. Times Publisher A.G. Sulzberger called the timing troubling; the union declared that timing their only choice. Within only hours, however, the union’s leverage was undercut. Aravind Srinivas, CEO of the AI search company Perplexity, wrote publicly to the paper offering the company’s services to keep coverage running through Election Day. Observers called it what it was: an AI company blatantly volunteering to cross the picket line. Srinivas quickly walked back his wording, insisting that he meant not to “replace” workers, but to “provide technical infra support on a high-traffic day,” the very work the engineers and analysts did.¹

The Tech Guild declared its walkout an unfair labor practice strike, alleging that the Times had instated return-to-office policies without bargaining and interrogated union members over strike activity. By contrast, economic strikes involve workers who wish to bargain for better wages, hours, or working conditions, rather than against violations of workers’ rights such as in the Tech Guild’s case. Unlike economic strikes, unfair labor practice strikers cannot be permanently replaced, but an AI labor substitute negatively impacts strikers’ leverage all the same.

Employers have long held broad discretion to automate their own operations.² Employees hold a separate right to walk out, to organize, and to impose economic pressures.³The National Labor Relations Act (NLRA) has guided this struggle in American workplaces for over 90 years, balancing both rights separately under the assumption that whatever substitutes for a striker’s labor is itself another human being, hired or contracted, occupying a position in the labor market. AI erodes the specific economic assumptions behind two major doctrines in labor law: the strike-replacement rule from NLRB v. Mackay Radio & Telegraph Co. (1938), and the bargaining classifications set out in Fibreboard Paper Products Corp. v. NLRB (1964).⁴

Much of the current attention to workplace AI implementation focuses on issues of discriminatory hiring and algorithmic surveillance.⁵Little current work asks how AI impacts a strike’s leverage once it has already begun.⁶ This article examines both doctrines and the extent to which rules developed for human strikebreakers may extend to automated ones.

II. Strike Doctrine

Merely one year after the Supreme Court’s stamp of approval on the NLRA, the young Act was tested in NLRB v. Mackay Radio & Telegraph Co. Workers struck over economic terms, and, rather than negotiate, the employer recruited new workers to replace the striking employees and continue operations. When the strike had ended, the company reinstated most strikers while refusing to reinstate several strike leaders, leaving replacements in their positions. The National Labor Relations Board (NLRB) found the selective refusal discriminatory, and the Supreme Court agreed.⁷

However, in reaching that holding, the Court went further, stating in dicta that an employer may permanently replace economic strikers and need not discharge the replacements after the strike ends. This allows an employer to protect itself against the economic impacts of a strike by hiring permanent replacement workers rather than concede. This dictum has functioned as settled law ever since, leaving strikers forced to weigh better conditions against the risk of losing their jobs.⁸

While this rule has not since been overturned, it has been curbed in several decisions. The employer in NLRB v. Erie Resistor Corp. (1963) had granted superseniority to replacement workers, incentivizing them to cross the picket line for a guarantee of benefits usually given to senior employees. The Supreme Court held that granting replacement workers additional privileges over striking workers was so inherently destructive to the right to strike that it was found unlawful without requiring proof of anti-union intent.⁹ NLRB v. Fleetwood Trailer Co. (1967) and Laidlaw Corp. v. NLRB (7th Cir. 1969) articulated and applied, respectively, the standard that permanently replaced economic strikers retain priority for reinstatement upon the reopening of a job, unless the employer can show a legitimate and substantial business reason to refuse.¹⁰

These cases are relevant, even today, because they place significant economic burdens on employers. An employer who hopes to outlast a workers’ strike must continue operations despite lacking a significant portion of its workforce. Thus, they must recruit, train, and pay these replacement workers, and may not offer additional incentives as per the Erie Resistor holding, all while the standard set by Laidlawensures that former strikers are first in line for any open position. The imposed economic friction preserves both the employer’s ability to continue operations and workers’ rights to apply economic force to convince their employer to come to the bargaining table.

The reasoning behind these decisions, however, rests on assumptions that no longer hold as firmly as they once did. Erie Resistor’s bar on favoring replacement workers only matters if there’s a human being to be bribed into crossing the picket line. Laidlaw’s right only gives hope to striking workers if there’s another person who now sits at the striker’s desk to eventually quit, retire, or be laid off. AI needs no recruiting, is persuaded by no incentives, and creates no clear vacancy. The legal friction imposed by the Supreme Court on businesses to ensure fair, balanced negotiations has since been smoothed out by artificial intelligence, and present doctrine has no response to a replacement of this kind.

III. The Duty to Bargain

Another set of cases asks whether an employer must bargain before changing who performs work. In Fibreboard Paper Products Corp. v. NLRB, the employer responded to its maintenance workers’ union’s notice to renegotiate an expiring agreement by unilaterally subcontracting out its maintenance work to a third party contractor, whose employees conducted the same work, in the same plant, only at a lower cost and for fewer benefits. Subcontracting differs from permanent replacement in that permanent replacement takes one striker’s job and hands it to another, preserving the bargaining unit, the group of employees represented by a union, as a whole. Subcontracting, on the other hand, removes the work from the bargaining unit altogether, dissolving the body that the employer is obligated to bargain with. The NLRB determined that the refusal to bargain over that decision was unlawful under §8(a)(5) of the NLRA, the provision that makes it an unfair labor practice for an employer to refuse to bargain in good faith with its employees’ representative, notwithstanding that the employer’s motive was economic rather than anti-union. Subcontracting that merely replaces one bargaining unit’s workers with another’s for the same work, as the Supreme Court stated, is a mandatory subject of bargaining, requiring the employer to negotiate with the union. Justice Stewart’s separate concurring opinion formulated a narrower principle: managerial decisions that change only who performs the work trigger the duty to bargain; those that deal with the scope or direction of enterprise do not.¹¹

By contrast, under American Cyanamid Co. v. NLRB (7th Cir. 1979), an employer may still subcontract work without the duty to bargain only during a strike, and so long as the arrangement is temporary.¹²Permanent subcontracting of struck work, however, as a result of the D.C. Circuit Court’s holding in Land Air Delivery, Inc. v. NLRB (D.C. Cir. 1988), still generally requires bargaining because of its effects on the bargaining unit.¹³ The court reasoned that the same principle established in Fibreboard still applies.

A noteworthy defense on the employer’s side may be found in First National Maintenance Corp. v. NLRB (1981), in which the company discharged several unionized employees as a result of a non-union-related contract cancellation. The union requested to bargain over the closure before it took effect, and the employer refused. The Supreme Court sided with the employer, reasoning that the decision was entrepreneurial rather than a matter of labor relations, and granted employers the freedom to make such decisions without the obligation to bargain over all but the effects, such as severance. Additionally, the court used a balancing test, under which bargaining may be required for a managerial decision only where the benefit to labor-management relations outweighs the burden on the conduct of business.¹⁴

Though First National Maintenancemay be cited in defense of an employer’s decision to deploy AI on struck work, its holding is less applicable than it first appears. The Court expressly reserved judgment on automation, listing it alongside plant relocations and other kinds of subcontracting as decisions to be considered on their particular facts.¹⁵ Moreover, First National Maintenance involved an employer choosing to shut down a portion of its operations, while an employer using AI to perform struck work continues the same business by shifting away from union labor, more closely resembling the paradigm in Fibreboard than First National Maintenance.

An employer that gives struck work to an outside AI vendor is contracting with a third party, which formally falls within the line drawn by Land Air where temporary help may be permitted, but permanent transfer of bargaining-unit work necessitates bargaining. An employer that deploys its own AI system instead resembles an automating firm, a category that First National Maintenance expressly declined to decide. Temporary AI use is more difficult to place. It resembles the subcontracting approved in American Cyanamid, but it’s also worth noting that external subcontracting for supplemental labor carries explicit contract duration limits and substantial costs while AI does not. Furthermore, the clean exits mandated by Laidlaw for reinstating striking workers is not clearly defined with AI. Categories defining the type of replacement work were drawn by decades of law with the understanding that human labor required human substitutes and thus no longer apply cleanly to a substitute of this kind. Whether courts will see it that way remains an open question, and their decision will determine how much power strikes retain in the age of AI.

IV. Conclusion

The safeguards described above share in that they all assume a labor replacement is one who participates in the labor market. Working at a fraction of the cost of subcontractors in Fibreboard, and offering little for waiting strikers expecting to return as per Laidlaw, AI systems erode common assumptions on the market pressures that previously influenced labor relations, tipping the scales in employers’ favor. Unions, meanwhile, are actively engaging with this issue. Screenwriters, actors, and casino workers have secured contractual protections against AI automation.¹⁶ The Communications Workers of America has negotiated AI-use provisions into agreements covering tech workers, including a 2023 agreement with Microsoft covering ZeniMax employees.¹⁷Courts and the National Labor Relations Board should follow their lead and recognize the threat to workers’ rights. The strikebreakers of the future may not walk across a picket line. They may be downloaded over it.