The National Labor Relations Act (NLRA) allows both union and nonunion employees in the private sector to participate in strikes. Make sure you understand when and how a strike could affect your company before one occurs.
[Read here to see whether your organization is subject to the NLRA.]
What Is a Strike?
A strike is a work stoppage resulting from employees collectively refusing to work. Since most union contracts have no-strike clauses, strikes most often occur during negotiations after the collective bargaining agreement expires. Official strikes take place after a majority vote by union members.
Although strikes are rare, employers should be aware of the labor laws surrounding this process. While the NLRA guarantees the right to strike, it also places limitations on exercising this right. Whether a strike is lawful depends on its purpose, timing, and the conduct of striking employees.
Employer Limitations
Companies cannot terminate or take other adverse actions against employees who participate in legal strikes. Employers also may not harass or otherwise question employees about their intent to strike or offer special benefits or other incentives in exchange for individual employees not striking.
Types of Strikes
Strikes generally fall into one of two categories: economic strikes and unfair labor practice strikes. Economic strikes occur in response to complaints about work conditions, such as wages or hours. Unfair labor practice strikes protest alleged unfair labor practices by an employer.
Unfair labor practice strikers have greater rights to reinstatement than economic strikers, whom employers may permanently replace. After an unfair labor practice strike ends, the employer must terminate temporary replacement workers and allow the strikers to return to their positions.
The NLRA does not protect all strikes. It is illegal for employees to strike against secondary employers or engage in “sympathy” strikes. Sit down strikes and workplace slowdowns also do not receive NLRA protections. “Sick-outs,” where employees who cannot legally strike (e.g., because of a no-strike clause) collectively call in sick, are not protected.
“Wildcat strikes” occur when represented employees engage in a work stoppage without union authorization. These unofficial strikes are usually illegal.
Employees who participate in illegal strikes may be subject to discharge.
Strike Pay
Employers do not have to pay striking employees or offer benefits during the strike. Unions often have strike funds that provide some pay or occasionally employee benefits. Striking employees do not receive unemployment benefits.
Picketing
Picketing often occurs during strikes. It involves employees congregating outside the employer’s location to protest grievances and discourage others (employees, customers, vendors, etc.) from crossing the picket line. Similar to the right to strike, the right to picket is subject to limitations relating to its purpose, timing, and potential misconduct on the picket line.
Employers can discipline employees for inappropriate conduct during picketing, such as physically blocking workers from entering the building or threatening violence.
Unions may fine employees who cross the picket line.
Healthcare Exception
Unlike employees in other industries, employees working for healthcare institutions must give at least a 10 days’ written notice to the employer and the Federal Mediation and Conciliation Service before picketing or going on strike. The notice must indicate when (date and time) the activity will begin.
Conclusion
The laws surrounding labor strikes are complex, and employers who anticipate a strike are highly recommended to obtain the assistance of an experienced labor lawyer.
The good news is strikes are rare. Almost all union contracts in the United States eventually settle without a strike. Nonetheless, employers who anticipate a work stoppage may take out strike insurance to offset potential losses.
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