Relations between workers and management do not always go smoothly. A strike is a collective organized cessation or slowing of work by employees in order to try to force an employer to accept their labor demands.
The Right to Strike and Restrictions
Under the National Labor Relations Act (NLRA), employees are entitled to join unions. They can engage in concerted activities in order to bargain collectively or get other mutual protection or aid. Under Section 13 of the NLRA, your right to strike is not supposed to be subject to interference or diminishment. There is a special notice provision for health care institutions. A labor organization is prohibited from being involved in a strike or picketing or otherwise concertedly refusing to do a job at a health care institution without initially providing at least 10 days’ written notice to the health care institution, among other things.
Read together, the provisions of the NLRA guarantee the right to strike, but they also restrict and shape the extent of the right. Whether a strike is lawful may turn partially on what the goals of the strike are, the timing of the strike, and the behavior of the strikers while engaging in a strike. Often, the National Labor Relations Board will need to decide these issues and determine whether reinstatement and back pay are proper.
When a strike is conducted for a lawful purpose, there may be both economic strikes and unfair labor practice strikes. These are two different classes of strikes. Economic strikers are striking to obtain economic changes, such as improved working conditions or higher wages from an employer. These strikers cannot be fired but can be replaced by bona fide permanent replacements. If a company has retained bona fide permanent replacements who are performing the economic strikers' jobs when the strikers apply unconditionally to come back to work, they are not entitled to be reinstated. However, if they do not get regular and mostly equivalent positions, and they have asked unconditionally for reinstatement, they can be asked back to any positions if there are openings.
Unfair Labor Practice Strikes
Strikers who are striking because of unfair labor practices have a stronger right of reinstatement. They cannot be fired, nor can they be permanently displaced (unlike the economic strikers, who can be). When an unfair labor practice strike ends, the workers who were striking are entitled to have their jobs restored. Even if workers were hired to temporarily replace them, they must be discharged to restore an unfair labor practices striker to their job. If the National Labor Relations Board (NLRB) learns that a company has illegally denied reinstatement to strikers, it can award the strikers back pay beginning with the time that they should have been reinstated.
However, there are instances in which a strike is unlawful. For example, a strike that is in support of a union's commission of an unfair labor practice or a strike that would trigger the commission of an unfair labor practice by an employer might be a strike to achieve an illegal purpose. For example, it may be an unlawful strike to force an employer to fire an employee who does not make payments to the union when there is no union security agreement compelling those payments.
There are other restrictions on the purposes of a strike. For example, it would be unlawful to hold a strike to persuade your employer to halt its business with another company, even though it would not be illegal for the union to ask your employer to do this.
Serious Misconduct in Strikes
If you are involved in serious misconduct during a strike, you can be refused reinstatement to your former position, even if the strike was an unfair labor practice strike. Serious misconduct can include violent acts or threats of violence. For example, if you physically attacked management representatives, you could be denied reinstatement. Similarly, if you physically blocked someone from going into the plant or leaving the plant during a strike, you could be denied reinstatement.