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Strike

From lawbrain.com

A work stoppage; the concerted refusal of employees to perform work that their employer has assigned to them in order to force the employer to grant certain demanded concessions, such as increased wages or improved employment conditions.

A work stoppage is generally the last step in a labor-management dispute over wages and working conditions. Because employees are not paid when they go on strike and employers lose productivity, both sides usually seek to avoid it. When negotiations have reached an impasse, however, a strike may be the only bargaining tool left for employees.

Employees can strike for economic reasons, for improvement of their working conditions, or for the mutual aid and protection of employees in another union. In addition, even if they do not have a union, employees can properly agree to stop working as a group; in that case they are entitled to all the protections that organized strikers are afforded.

Labor unions do not have the right to use a strike to interfere with management prerogatives or with policies that the employer is entitled to make that do not directly concern the employment relationship. A strike must be conducted in an orderly manner and cannot be used as a shield for violence or crime. Intimidation and coercion during the course of a strike are unlawful.

Contents

Federal Labor Law

The development of labor unions in the nineteenth century was met by employer hostility. The concept of collective bargaining between employer and employee was viewed as antithetical to the right of individual workers and their employers to negotiate wages and working conditions—a concept known as liberty of contract. When unions did strike, they were left to deal with management without legal protections. Employers fired strikers and obtained injunctions from courts that ordered unions to end the strike or risk contempt of court.

The unequal bargaining power of unions was remedied in the 1930s with the passage of two important federal labor laws. In 1932, Congress passed the norris-laguardia act (29 U.S.C.A. §§ 101 et seq.), which severely limited the power of federal courts to issue injunctions in labor disputes. The act imposed strict procedural limitations and safeguards to prevent abuses by the courts. The National Labor Relations Act (Wagner Act) of 1935 (29 U.S.C.A. §§ 151 et seq.) clearly established the right of employees to form, join, or aid labor unions. The act authorized collective bargaining by unions and gave employees the right to participate in "concerted actions" to bargain collectively. The major concerted action was the right to strike.

Federal labor laws require a 60-day waiting period before workers can strike to force termination or modification of an existing collective bargaining agreement. The terms of the agreement remain in full force and effect during this period, and any employee who strikes can be fired. The 60-day "cooling-off period" begins when the union serves notice on the employer or when the existing contract ends. This provision does not affect the right of employees to strike in protest of some unfair labor practice of their employer. It does help to prevent premature strikes, however.

Status

Strikes can be divided into two basic types: economic and unfair labor practice. An economic strike seeks to obtain some type of economic benefit for the workers, such as improved wages and hours, or to force recognition of their union. An unfair labor practice strike is called to protest some act of the employer that the employees regard as unfair.

When employees strike, the employer may continue operating the business and can hire replacement workers. Upon settlement of an unfair labor practice strike, the strikers must be reinstated as soon as they offer unconditionally to return to work, even if the replacement workers must be fired.

In economic strikes, however, the employer is not required to take back the strikers immediately upon the settlement of the dispute. Economic strikers are still categorized as employees and are entitled to reinstatement in the event vacancies occur, but the employer does not have to reinstate any worker who has found substantially equivalent work elsewhere or who has given the employer a legitimate and substantial reason for not reinstating that worker. The hiring of permanent replacement workers has become an important management weapon against economic strikes, giving the employer the ability to hire a nonunion workforce and to threaten the local union with destruction. U.S. labor unions have been unsuccessful in persuading Congress to amend the National Labor Relations Act to provide immediate job reinstatement to economic strikers.

An employee has no right to be paid while on strike, nor does the employee have a right to claim unemployment compensation benefits, unless state law provides the benefit. Employees who refuse to cross a picket line on principle are treated in the same way as strikers, but those who are kept from their jobs through fear of violence are entitled to collect unemployment compensation.

Employees forfeit their right to maintain the employment relationship if their strike is illegal. For example, public employees are generally forbidden to strike. If they do, they risk dismissal. In 1981, President Ronald Reagan responded to an illegal strike by federal air traffic controllers by dismissing more than ten thousand employees.

Ordinarily, however, a strike is legal if employees are using it to exert economic pressure upon their employer in order to improve the conditions of their employment. A strike is unlawful if it is directed at someone other than the employer or if it is used for some other purpose. Federal law prohibits most boycotts or picketing directed at a party not involved in the primary dispute. These tactics are known as secondary boycotts or secondary picketing, and they are strictly limited so that businesses that are innocent bystanders will not become victims in a labor dispute that they cannot resolve.

Unlawful Tactics

Picketing can be regulated by statute because of the potential for violence inherent in this activity. Mass picketing is unlawful under federal law because large unruly crowds could be used for the purpose of intimidation. Employees are entitled to picket in small numbers outside the employer's facilities, but they cannot block entrances or demonstrate in front of an employer's home. Picketing is lawful when it is used to inform the public, the employer, or other workers about the dispute. However, it cannot be used to threaten people or to provoke violence.

A strike is generally lawful if it is peaceful. A strike is never a legal excuse for violence, and acts of physical violence and damage to property will be viewed as criminal acts. Employers who use violence against strikers are subject to the same penalties.

A union or an employer can be fined or adjudged guilty of an unfair labor practice and ordered to cease and desist when violent actions occur. An injunction from a state court can stop the strike or picketing. Because no labor disputes can proceed without minor problems, an isolated minor incident, such as name-calling or a shove, does not end the right to strike.

Union Members

Labor unions can fine or expel members who cross picket lines, fail to honor a lawful strike, or indulge in violence during a strike. In addition, they can discipline members for conduct antagonistic to the union, such as spying for the employer or participating in an unauthorized strike. A union member is entitled to a written notice of specific charges against him and a full and fair hearing before he can be expelled.

Settlement

Strikes are ordinarily settled by negotiation between the employer and the employees or the union that represents them. An employer who does not want to engage in negotiations can cease operations entirely. However, an employer cannot avoid bargaining by relocating or by assigning the same work to another plant owned by the company. If the employer and employees bargain in good faith, they generally settle their differences and sign a collective bargaining agreement.

Further Readings

Smith, Robert Michael, and Scott Molloy. 2003. From Blackjacks to Briefcases: A History of Commercialized Strike-breaking and Unionbusting in the United States. Athens: Ohio Univ. Press.

Zinn, Howard. 2002. Three Strikes: Miners, Musicians, Salesgirls and the Fighting Spirit of Labor's Lost Century. Boston: Beacon Press.

See Also

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