Under what circumstances may an employer discipline or terminate a striking employee?

Author: Jed L. Marcus, Bressler, Amery & Ross, P.C.

Ordinarily, a striking employee remains an employee under the National Labor Relations Act (NLRA) and may not generally be terminated or refused reinstatement at the conclusion of the strike. Serious misconduct by a striker, however, is not protected by the NLRA. Consequently, reasonable discipline, including the refusal to reinstate an employee for such misconduct, does not constitute an unfair labor practice. Examples of serious misconduct justifying termination are vandalism and violence. However, the termination of a striker would be an unfair labor practice charge where the employer terminates the striker but not a non-striker for the same conduct. An employer may not knowingly tolerate misconduct by a non-striker that is at least as serious as, or more serious than, the misconduct of a striker whom the employer has terminated.