Strikes and You
If you are represented by a union, the likelihood is that at some point the union will call a strike at your workplace. When it does, you must be aware of important legal rights that may affect your decision whether to participate. Using a question an answer format, this guide explains your rights.
Q. If my union calls a strike, do I have to participate?
A. No. Under § 7 of the National Labor Relations Act, the federal law that governs labor relations in the United States, you are guaranteed the same right not to strike as you have to strike. Strikes can deprive you of wages for a long period of time and may even result in your permanent replacement if the employer decides to hire someone else to do your job while you are on strike.
Q. I have heard that my job status during a strike may depend upon how the law classifies the type of strike that is involved. What are the different types of strikes and how does it affect me?
A. This is a very important question and a bit complicated. In general, however, there are three different types of strikes with differing consequences for your job status.
- Unfair labor practice strikes .. Under the law, this type of strike is caused or prolonged by an employer’s unfair labor practices, such as discharging or discriminating against employees because of their union membership or refusing to bargain with the union. Employees who participate in such a strike have the right to get their jobs back after making an unconditional offer to return to work. One problem with this, however, is that it may not be clear whether the strike was really caused or lengthened by an employer’s misconduct until months or years of legal proceedings have concluded.
- Economic strike . An economic strike is usually a strike called to support the union’s bargaining position for a new contract but can be any strike that is not an unfair labor practice strike or an illegal or unprotected strike (explained in the next paragraph). In an economic strike, an employer has the right to hire permanent replacements for those on strike. When the strike is over and strikers offer to return to work without any conditions, the employer also has the right to keep on the job any replacements he may have hired. However, the employer must put strikers who want to return to work on a preferential hiring list and rehire them if and when replacements leave.
- Illegal or unprotected strike . Some strikes are illegal and others are “unprotected” by the National Labor Relations Act. If an employee engages in an illegal or unprotected strike, the employer may discharge him or her and has no obligation ever to rehire them. This is a highly technical area that we don’t need to get into it in detail. An example of an illegal strike would be a strike called for the purpose of getting the employer to pressure another employer with which it has a business relationship, such as a customer or supplier, to recognize a union. An example of an unprotected strike would be a strike against the employer when there is a contract with the union that forbids strikes during the contract.
Q. Is there any other way a strike can affect a striker’s job status?
A. Even if a strike is a lawful unfair labor practice or economic strike, an employee may be discharged by the employer if he or she engages in misconduct during the strike, such as committing acts of violence against managers, supervisors, or employees, or vandalizing or damaging company or other employees’ property. Emotions often run high during strikes and otherwise law abiding employees sometimes do foolish things that result in loss of their livelihood.
Q. Even though you say that the law protects my right not to strike, I have heard that a union may actually fine members money for not striking, such as a specific amount for each day they do not strike? Is this true?
A. While this is unfortunately true, there is a safe way around it for employees who do not want to strike. A union may only fine members who do not obey a strike call. If you are not a member of the union, even though the union represents you at the workplace, it has no power to discipline you with fines. If you are a member, however, you have the absolute right to resign from the union, and the union loses its power to discipline you with fines from that time on.
Q. Suppose I am a union member. I don’t want to strike but I don’t want to be fined either. How do I resign?
A. Simply write out a statement that you wish to resign from the union, sign and date it. You may either personally give the statement to an agent of the union, such as the local union president or business representative, or you may mail the resignation to the agent. If you mail your resignation, you should do so by certified mail, return receipt requested, so that there will be proof it was received. If you hand deliver your resignation to a union representative, the resignation is effective immediately upon receipt. If you mail the resignation, it is effective at 12:01 a.m. on the day after you put it in the mail.
Remember that you have an absolute right under the law to resign your union membership. Any statements in the union constitution or by-laws, or elsewhere, declaring that you may resign only at certain periods of time, such as during a 30-day period once a year, or that you may not resign during a strike, or that you have to fulfill requirements in delivering the resignation other than those explained in the last paragraph, are unlawful and may be disregarded.
You should also know that even if you remain a member and do not strike, a union may not Impose a fine that is unreasonable. To collect a fine, the union will have to sue you in state court and the court will decide if the fine is reasonable. Of course, it is far better to resign before you go to work during a strike so that the union has no power to fine you at all.
Q. OK. I am clear about what I have to do to avoid fines. But what about union threats, violence, damage to my property, and so on? How can I protect myself there?
A. It is absolutely unlawful for a union to force, or attempt to force, any employee to participate in a strike or to picket against his or her will by means of threats, intimidation, coercion, violence, property damage, and similar means. Specifically, such actions violate § 8(b) (1) (A) of the National Labor Relations Act, which forbids unions from “retrain[ing] or coerc[ing]” employees who exercise their rights under the law, including the right not to take part in a strike. Unions are also forbidden from engaging in mass picketing or other means of blocking entrances to a workplace to keep out employees who want to work.
Q. I understand these things are illegal, but what can I do about it?
A. The National Labor Relations Board (NLRB) is a U.S. government agency that enforces the National Labor Relations Act. Union misconduct of the kind we have talked is an unfair labor practice and you have the right to file charges with the NLRB against the union.
The NLRB has offices in many major cities around the country. The nationwide toll-free number for the NLRB is 1-866-667-6572; its website site is www.nlrb.gov. If you believe the union has engaged threats, violence, coercion, or other such misconduct, obtain a copy of NLRB Form 508 – Charge Against Labor Organizations or its agents. Here is a link to the form and the accompanying instructions for filling it out.
The form should be filed in the Regional Office where the events or conduct took place and a copy served on the union. You can call the NLRB toll-free number to get the telephone number of the appropriate regional office and the Information Officer there can help you with any questions or further information. In the charge, you only have to give a brief description of what happened. The NLRB will investigate the charge and, if it has merit, issue a complaint against the union for violating the law; ultimately, the NLRB may require the union to cease and desist from illegal conduct and to publicly say it will do so. The NLRB may also seek a court injunction requiring the union to halt such conduct.
Although you don’t have to go into a lot of detail to file the charge, it would be wise to collect witness statements and other evidence of union misconduct to present to the NLRB when it investigates the charge.
Q. If I refuse to participate in a strike, can the union try to get the employer to discriminate against me on the job?
A. No. Under another section of the law, § 8(b) (2), it is illegal for a union “to cause or attempt to cause” your employer to discriminate against you on the job in any way for exercising your right not to strike or for exercising any other protected right. This is true both during the strike and at any time afterwards. If you believe this has happened, contact the NLRB and use the same form discussed in the previous question and answer to file unfair labor practice charges.
