Union Strikes

Editor's Note: Prepare for union strikes with effective policies and an action plan.

Melissa BoyceOverview: While the word "strike" is not a welcome word in the vocabulary of employers, unions and employees are permitted under the National Labor Relations Act (NLRA), to engage in strikes to:

  • Seek union recognition by an employer during organizing activity;
  • Achieve "economic" gains, such as improvements in wages, benefits or work rules; or
  • Protest "unfair labor practices" by the employer.

Sympathy strikes, which occur when employees choose not to cross a primary picket line out of sympathy for the primary striking employees may also be lawful. Some strikes (such as, intermittent strikes, violence and mass picketing, partial strikes, work to rule, and sit down strikes) are unlawful and employers can terminate employees who engage in them.

There are rules that apply to employers prior to a strike, during a strike and following a strike. Prior to a strike, employers can encourage union employees notto participate in the strike and can urge strikers to return to work. Such encouragement must be free from threats, intimidation or promises of benefits.

During a strike, employers can stop paying striking employees or contributing to their benefits (but COBRA documents must be sent). Following a strike, an employer may have certain reinstatement obligations to striking employees which may vary depending on the type of strike (legal vs. illegal; economic vs. unfair labor practice). Employers may limit a union's right to strike through a collective bargaining agreement (CBA).

Trends: More and more, a solid preparation scheme for strikes includes:

  • The development of a "No Strike/No Lockout Policy";
  • The creation of an action plan for strike situations and adequate training on this plan;
  • Analysis of potential security issues;
  • Development of a system for managing public relations concerns;
  • Creation of a plan for hiring contingency workers (where allowable);
  • Development of procedures for documenting and disciplining striking employees; and
  • Creation of a communication system with labor counsel.

Author: Melissa Boyce, JD, Legal Editor

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