Private Sector Union Strikes: Understanding the Nuts and Bolts
Q: What is a strike?
A: A strike occurs when employees, in a group, either walk off the job or determine that they will not show up to work as a way to protest something that happened or is happening at their workplace. Typically, strikes involve a picket line where employees walk in front of the workplace with signs indicating why they are striking.
Q: What are the different types of strike?
A: Employees may start what is called an unfair labor practice strike if an employer is doing something illegal or in violation of the collective bargaining agreement.
When employees strike over anything related to their wages or benefits, it is called an economic strike.
When union members choose to strike because the same union at a different workplace is on strike, it is called a sympathy strike. For example, during a sympathy strike, Ford workers who belong to the UAW in Detroit might strike in sympathy with Ford workers who belong to the UAW in Cleveland and are striking due to a labor/management dispute, even though the Detroit workers do not have a dispute. Most contracts contain a “no sympathy strike” clause to limit this type of strike.
Q: When can a union go on strike?
A: A union can go on an economic strike only during certain times. First, though, union members must vote for a strike. A strike vote occurs at a union meeting. At least half of the members in attendance must vote to go out on strike. Once at least half the members in attendance have voted to strike, all union members must go out on strike or face possible penalties levied by the union.
Typical collective bargaining agreements contain “no strike” and “no lock out” clauses. These clauses prohibit employees from going out on economic strike or the employer from locking out the employees while a contract is in effect. But when the contract expires, so do those clauses, and employees can then go out on strike. In non-manufacturing settings, conditional “no-strike” clauses allow for strikes while the contract is still in effect, but only after certain events occur. Employees always have the right to engage in unfair labor practices strikes, if their employer is violating their rights that are protected by the National Labor Relations Act. Sympathy strikes may be prohibited under collective bargaining agreements, but sometimes are specifically exempted from the "no strike" language.
Q: Can an employer stop a union from going on strike?
A: Generally, no, as long as the union goes on strike legally.
Q: What can employers do when employees strike?
A: If the strike is blocking the entrance or exit to the workplace, then the employer can seek a temporary restraining order from a court of law limiting the number of strikers and/or the location of the picket lines.
Employers can also hire replacement workers to keep the workplace producing product or services during the strike. Whether the replacement workers will become permanent replacement workers or temporary workers that work only during the strike is an issue that must be resolved by the National Labor Relations Board.
Employers are also not obligated to continue paying employees who are on strike since those employees are no longer working. Likewise, employers can challenge striking employees’ efforts to obtain unemployment benefits while on strike. In Ohio, an employee who strikes when there is work that the employee could perform is not usually eligible for unemployment benefits.
Q: What rights do striking employees have?
A: Employees on strike cannot be disciplined for striking and generally cannot be discharged for engaging in protected, concerted activity. Strikers do not lose their accrued vacation time or other benefits, either. Also, the employer must guarantee that replacement workers will not make more money or receive additional perks for working during a strike. Furthermore, any employee who crosses the picket line and reports to work cannot be promoted to a better position, but must be returned to his or her same, or very similar, position.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was originally prepared by Columbus attorney Matthew Austin, and was updated by Toledo attorney Marilyn L. Widman of Widman & Franklin LLC.