One of the most powerful weapons in labor’s arsenal is a strike. Like most powerful weapons there is a dichotomy in a strike. On one hand, it can bring about concessions from management that labor seeks. On the other hand, it can permanently change the relationship between management and labor. However, one thing is certain, strike are – to put it mildly – chaotic.
During this chaotic period, employees and employers may wonder what rights they have during union-initiated strikes. We provide some brief explanations below, along with how union litigation can help enforce your rights.
Employers can Not Fire or Threaten Striking Employees
The National Labor Relations Act expressly protects union workers who engage in lawful strikes. Therefore, except in limited circumstances, employers cannot fire striking workers. Indeed, even in the limited circumstances under which an employer can lawfully terminate a striking employee, such as when employees engage strikes unendorsed by unions or when there exists a “no strike clause,” employers should proceed with caution before terminating the striking employee. Terminating an employee who strikes lawfully may result can result in an award of back due to the employee and immediate reinstatement of employment.
Lawful strikes are those that occur at the conclusion of a collective bargaining agreement and relate to economic conditions (an economic strike) or arise from an alleged unfair labor practice the employer has committed (an unfair labor practice strike). Workers can also potentially lawful strike over unsafe workplace conditions. Unlawful strikes are those which endorse violence, block workers from entering a facility, or promote unfair labor practices.
An employer can hire replacement workers.
Employers have the right to hire replacement workers for their striking employees. The striking employees have the right to reinstatement at the conclusion of the strike. The extent of the striking worker’s reinstatement rights depends on whether the strike is an economic strike or an unfair labor practice strike. If the strike is an economic strike, the employer has the right to hire permanent replacement workers. At the conclusion of the economic strike, the striking working is not entitled to unconditionally receive her old job back. Instead, she is placed on a preferential hiring list. On the other hand, if the strike is an unfair labor practice strike, the employer may only hire temporary replacement workers. At the conclusion of the unfair labor practice strike, the striking workers are entitled to their old positions back if they make an unconditional offer to return to work.
Conclusion
Regardless of the union that is striking, issues without an amicable resolution will undoubtedly turn into a long legal dispute spanning months. Employees may go without pay, employers may fall behind in production schedules, and innocent persons who cross picket lines will find themselves accosted by union members vying for better treatment.
Strikes are tough on employers, unions, and employees who brave the elements to stand up for workplace values. There are no wrongs or rights in strikes, but laws do protect the interests of all involved. Employees concerned about strike pay, employers concerned about legalities, and unions that wish to remain compliant would find retaining an attorney beneficial during any contentious argument.
Wally Zimolong
Wally represents contractors (and subcontractors) and developers. His clients build and develop residential, commercial, and industrial properties nationwide. Wally enjoys working with the owners of the businesses he represents because they tend to be entrepreneurs and all around interesting people.
