The National Labor Relations Act of 1935 (NLRA) provides that employees have a right to engage in certain "concerted activities," which include strikes, for the purpose of collective bargaining or other mutual aid or protection. The NLRA also specifies that it should not be interpreted to impede or diminish employees' rights to strike. The NLRA does, however, place limits upon this right. Under the NLRA some strikes are legal and some are not.
Whether or not a strike is legal depends on the purpose of the strike, its timing, and the conduct of the strikers. These issues must often be determined by the National Labor Relations Board, which is tasked with overseeing implementation of the NLRA.
Lawful Strikes
There are two main categories of lawful strikes:
- Economic strikes and
- Unfair labor practice strikes.
Employees conducting an economic strike are seeking to obtain an economic benefit, such as higher pay or better hours, from their employer. These employees, called economic strikers, maintain their jobs and cannot be fired. An employer may, however, replace the economic strikers. If the employer has filled a striking employee's position with a bona fide permanent replacement at the time the striker applies unconditionally to go back to work, the striker is not entitled to immediate reinstatement. If the employee does not find substantially equivalent employment, however, he or she is entitled to be recalled to a job for which he or she is qualified as such openings occur. The employee must, however, have made a formal request for reinstatement.
Employees involved in an unfair labor practice strike are protesting an allegedly unfair labor practice of the employer. These strikers may not be discharged or permanently replaced. As long as they have not committed serious misconduct during the strike, unfair labor practice strikers are entitled to have the jobs back after the strike is over, even if the employer has to discharge its replacement workers. Strikers may recover back pay if the employer does not properly rehire them.
Unlawful Strikes
Strikes may be unlawful for a number of reasons, including:
- An unlawful purpose,
- Improper timing, and
- Serious misconduct of the strikers.
Strikes conducted for an unlawful purpose would include any strike being conducted to support a union's unfair labor practice or to attempt to cause an employer to commit an unfair labor practice. For example, it is an unfair labor practice for a union to conduct mass picketing in such numbers that non-striking employees are physically unable to enter the place of employment. A strike with such a goal have an unlawful purpose. An employer may permanently discharge employees who participate in an unlawful strike.
Strikes may also be illegal because they are improperly timed. For example, under the NLRA, employees wishing to change or terminate a collective bargaining agreement must comply with certain conditions. If they fail to do so, a strike to terminate or change the agreement is unlawful. Again, the employer may permenantly terminate employees who participate in a strike that is unlawful because of improper timing.
Finally, strikes may be illegal because of serious misconduct of the strikers. Strikers who engage in misconduct are likely to be ineligible for rehire. Examples of misconduct include threatening non-strikers with violence, preventing persons from entering or leaving the plant, or engaging in a sit-down strike (remaining in plant without doing any work). Sit-down strikes are illegal because they deprive employers of the use of their property.
Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.
