What can employers do when their employees plan a strike?

The word "strike" is not one that employers want to hear from their employees. However, it is one that Uber-faced earlier this year.

Los Angeles Uber drivers organized the strike to protest their low wages and benefits, which spread to several cities nationwide. Some California employers may worry that their own company could suffer the same fate, so here is a brief primer on union employee strikes, which are governed by the National Labor Relations Act (NLRA).

There are three fundamental things that employers should do if they are facing an employee strike.

1. Understand employees' right to strike

The National Labor Relations Act provides that employees have the right to "...engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 13 of the NLRA specifically calls out striking as a right guaranteed to union workers. It also protects employees' rights to:

  • Organize a union, which is necessary for a legal strike
  • Bargain collectively with their employer regarding working conditions
  • Discuss conditions of work with the union and other striking employees

Generally, employees can legally organize a strike over economic issues or unethical business practices. Other reasons may be unlawful, such as:

If the strike is called in support of a union unfair labor practice (e.g., attempting to force individuals to pay dues when they choose not to);

If the purpose of the strike is to attempt to force employers into actions that are normally outside the employee's range of influence, e.g., if employees wanted their employer to boycott a particular brand or company. It is generally understood that employers have the right to make such decisions, with or without input from employees; but employees may not legally force their will onto employers through a strike;

When a no-strike contract exists between employers and workers, it must be followed unless it is related to unfair labor practices or unsafe working conditions;

Strikes timed to coincide with the end of a contract;

Strikes that involve illegal misconduct (including blocking entryways, threatening violence, or attacking managers); and

Picketing, striking, or otherwise organizing a refusal to work in any health care institution without at least 10 days' written notice to both the institution and to the Federal Mediation and Conciliation Service.

Union workers must strike to achieve specific objectives which fall into two categories: (a) economic issues, and (2) unfair labor practices. Those in the latter category have stronger rights related to job reinstatement.

(a) Economic Strikers

When individuals go on strike in order to secure better working conditions, hours, or compensation, they are referred to as "economic strikers." Employers who replace these workers with bona fide permanent workers are not required to discharge the replacement workers when the strike ends. On the other hand, if the replacement workers are not equivalent to the previous workforce, strikers are entitled to be recalled to their previous jobs.

(b) Unfair Labor Practice Strikers

Unfair labor practices relate to employers who in some way interfere with workers' rights to unionize or to carry out union activities. This may involve discrimination, retaliation, or punitive measures in association with union activities. A striker in this category is entitled to their job at the conclusion of the strike, regardless of the classification of replacement workers.

2. Identify what they cannot do when employees strike

The NLRA also restricts employers' power. Primarily, employers cannot terminate or threaten any of their employees engaged in a legal strike. However, it is also against the law for employers to:

  • Provide financial incentives to return to work
  • Interrogate employees about their actions
  • Spy on striking employees

3. Know their rights during a strike too

During an employee strike, employers have the right and ability to:

  • Implore striking employees to return to work, without offering financial benefits
  • Hold an employee's pay and their benefits
  • Hire temporary contractors to complete the employees' work
  • Perhaps even hire permanent replacements for the employees

It is possible for employers to terminate striking employees. However, they can only terminate employees if the strike is illegal, or the employee engaged in severe misconduct during the strike, such as vandalizing the employer's property.

Navigating what employers can and cannot do during a strike can be complex, but it is critical that employers understand the legal matters they face in an employee strike to prevent complicated-and expensive-employment issues and disputes. Clearly, the decision to strike is neither simple nor easy. Understanding the legalities is paramount to your job security. Before, during and after a strike, the experienced labor law attorneys at Beck Law P.C., in Santa Rosa can protect your rights. Call today for your confidential consultation.

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