The common law right to strike is an integral part of the American system of collective bargaining. Since the formulation of the National Labor Relations Act, there has long existed a consensus that the exercise of the right to strike is a critical component for successful bargaining. The using of economic weapons creates a risk of loss for both parties, which is often a greater price to pay than a compromise in favor of agreement.1 The Taft-Hartley Act defines a strike in the following manner:

"The term "strike" includes any strike or other concerted stoppage of work by employees . . and any concerted slow down or other concerted interruption of operation by employees."2

The right to strike. Under Section 13 of the National Labor Relations Act, employees are guaranteed the right to engage in concerted activities, the Act is not to be construed as legislation which may "interfere with or impede or diminish in any way the right to strike". There are, however, certain limitations upon an employee's right to strike. As an example, Section 8 (b) prohibits strikes for certain unlawful objectives, including strikes designed to put secondary pressure upon other employers in strikes for jurisdictional or work assignment purposes. Section 8 (b)(7) restricts organizational strikes and strikes for recognition of a union as a bargaining agent under specified conditions. Further, the Taft-Hartley Act in Section 303 provides an employer with the right to sue in the federal district courts for injuries incurred as a result of certain types of unlawful strikes.

Notice prior to striking. Certain notice requirements also apply to the right to strike. Where a party seeks to modify or terminate an existing collective bargaining contract, Section 8 (d) of the NLRA requires that the party give 60 days notice to the other party. Also, work must continue for the 60-day period without any resort to economic weapons such as strikes or lockouts. The party which has given notice is also required to notify the Federal Mediation and Conciliation Service and the appropriate state mediation agency within 30 days after it tenders notice of the existence of a labor dispute.3 Further, in the healthcare industry, there is a longer "cooling off" period before a strike is permitted. As such, depending upon the industry and the nature of the strike, an employer is wise to seek counsel to determine whether a union strike is procedurally and substantively lawful.

Lawful strike activity. In order for a strike to be lawful, a bargaining agent and the unit employees in question must first be party to a labor dispute recognized under the NLRA. The term labor dispute is defined in Section 2 (9) of the NLRA in the following manner: ". . . Any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms and conditions of employment. . ."

Unfair labor practice strikes. The two primary types of strike activity are referred to as unfair labor practice and economic strikes. Unfair labor practice (ULP) strikes are strikes which have been caused in whole or in part as a response to an unfair labor practice committed by the employer. An economic strike is one which has not been caused by an unfair labor practice by the employer. The label which is attached to a strike governs the reinstatement rights of the strikers. Unfair labor practice strikers are entitled to return to their former jobs after tendering to the employer an unconditional offer to return to work. The employer must reinstate ULP strikers even if it requires discharging any permanent replacements who have been hired for the positions previously held by the ULP strikers.

Economic strikes. Economic strikers, on the other hand, have lesser rights of reinstatement than their ULP brethren. Because economic strikers have chosen, of their own free will, to engage in strike activity which was not precipitated by the employer's unfair labor practices, those strikers are given less protection under the law. As such, even where economic strikers tender an unconditional offer to return to work, they may not be reinstated if the employer has already hired permanent replacements for their positions. There is no obligation that the employer discharge the replacements, although the economic striker may be entitled to reinstatement if a vacancy later exists. Economic strikers remain employees. They are entitled to full reinstatement after departure of the replacement employees unless they've acquired substantially equivalent employment during the interim or the employer can establish that legitimate and substantial business reasons support the failure to offer reinstatement.4 For both economic and unfair labor practice strikers, engaging in strike misconduct, such as violence on the picket line, will disqualify them from being reinstated.5
It is also important to note that a strike may begin as an economic strike and later be converted to an unfair labor practice strike as a result of the wrongful acts of the employer. At that point in time, the reinstatement status of the strikers changes and the employees on the picket line could be entitled to immediate reinstatement.6

Unlawful strikes. There are various types of strikes which are unprotected under the federal labor statutes. These strikes are oftentimes prompted from an unlawful purpose or object or the strike attempts to accomplish a lawful purpose through unlawful means. Some examples include the following:

1. Sitdown strikes: A sitdown strike may occur if strikers remain on the employer's premises, particularly if they take possession of the property while attempting to exclude others from entry. The strikers lose protection under Section 7 of the NLRA.

2. Minority strikes: A minority strike can occur if authorization for the strike activity has not been given by a majority. Since the union has been designated as the bargaining representative of the employees, the employer may discipline the minority of employees who have not acted through their designated representative.7

3. Partial strikes: A partial strike could be a slowdown or other type of activity such as refusal to work overtime or to handle assigned responsibilities. This conduct, again, is not protected even though employees are utilizing economic pressure to force the employer to agree to their demands.8

4. Picket line misconduct and violence: Neither Congress nor the NLRB recognize a right of the striking employee to engage in picket line misconduct and violence in order to achieve economic goals. Employees who are guilty of assaults, malicious destruction of property, threats, and similar acts are engaging in conduct which is not protected. They may be disciplined.9

5. Breach of contract strikes: Strikes which are in violation of a contract no-strike clause are also prohibited unless they are protesting serious employer unfair labor practices.10

Picketing: Employee and employer rights. Picketing has long been used by the labor movement to bring pressure on an employer to accede to union demands. Picketing (patrolling an employer's property with informational signs) can be an acceptable part of a lawful primary strike. In turn, employees of a secondary employer may lawfully refuse to cross a primary strike picket line unless they have waived the right to engage in such a sympathy strike.11 Under certain limited circumstances, however, their employer may terminate their employment.

Recognitional picketing. The National Labor Relations Act also proscribes picketing which is done to "blackmail" the employer. As such, organizational or recognition picketing is unlawful under Section 8 (b)(7) of the Act under the following circumstances:

1. When another union has been lawfully recognized by the employer;

2. When a valid election has been held within the preceding 12 months; or

3. When no petition for an election has been filed by the picketing union within a "reasonable" period of time, not to exceed 30 days from the commencement of the picketing.

Illegal picketing. Illegal recognitional picketing can be accomplished even by threats of picketing if the threat runs beyond the reasonable 30 day time limitation. Further, it is not necessary for persons to march in front of the employer's premises carrying picket signs for a violation to occur. Injunctive relief may be granted to restrain a union from violating Section 8 (b)(7) of the Act where the clear purpose of the picketing activity is to accomplish a recognitional objective.

Area standards picketing. The NLRB has permitted "area standards" picketing finding that it is not deemed to be picketing for an organizational or recognitional objective. Area standards picketing is typically a protest aimed at publicizing an employer's payment of compensation below prevailing union rates or standards in the area. The motivation is to force the employer to adopt the employment terms and compensation rates which mirror those prevailing at the locale.

Handbilling and consumer picketing. The extent to which employees may engage in handbilling or consumer picketing has been the subject of significant debate before the NLRB and the courts. In 1940 the United States Supreme Court in Thornhill v. Alabama, 310 U.S. 88, 6 LRRM 697 (1940) cited the First Amendment of the United States Constitution in support of the right of employees to engage in handbilling as follows:

"The freedom of speech . . . guaranteed by the constitution embraces the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment."

Most courts, however, have been much more quick to scrutinize the propriety of union activity where picketing is mixed with handbilling as unlawful picketing has been declared by Congress to be contrary to legitimate public interest. While handbilling for the purpose of providing publicity to members of the public that a dispute exists with a primary employer is legal, other types of general consumer handbilling with picketing may violate the NLRA.13 Simultaneous handbilling and picketing often raise significant legal questions. An employer would be well advised to consult with legal counsel concerning the propriety of union handbilling and consumer picketing. It is beyond the scope of this text to discuss the nuances of such activities in great detail.

Secondary strikes and picketing. Unions have long found the secondary boycott to be a very effective weapon in their arsenal for creating economic pressure for employers. The typical scenario for such a boycott involves the following parties:

1. The primary union: The union who engages in the secondary pressure and has a dispute with the primary employer.

2. The primary employer: The party with whom the union has the dispute.

3. Secondary employer: The party who is pressured yet neutral and not actually involved in the primary dispute.

4. Secondary employees: The individuals encouraged to respond sympathetically to the union pressure by stopping work.

Secondary boycott attempts force the secondary employer or neutral in the dispute to take action which creates pressure for the primary employer. (i.e., the secondary employees refuse to deliver supplies to the primary employer)
The National Labor Relations Act condemns secondary union activity designed to induce a stoppage by persons other than those who normally deal with the disputed work. Again, this is a complicated area of labor law and an employer is encouraged to work with counsel to understand and address the legal issues inherent in secondary pressure situations.

Common situs picketing. In situations in which the secondary employer and the primary employer are engaged in normal business operations at a common site, the union may picket the premises of the secondary employer if the following conditions are met:

1. The picketing is strictly limited to times when the site of the dispute is located on the primary employer's premises;

2. At the time of the picketing, the primary employer is engaged in its normal business at the common situs;

3. The picketing is limited to places reasonably close to the location of the common situs; and

4. The picketing discloses that the dispute is with the primary employer, not the secondary employer.

Again, because the nuances of the law become quite complicated in this area, when an employer is confronted with such a dispute, it is wise to seek advice from counsel concerning the legality of the union's actions. Should an employer be improperly harmed by illegal union activity, Section 303 of the Labor Management Relations Act provides a cause of action and a remedy for damages resulting from illegal union secondary activity. Advice of counsel can also assist an employer in addressing the damages for union secondary activity.

The following section contains some guidelines for employers to consider when anticipating a potential strike situation. However, competent legal advice should be obtained in the state where you are doing business.

GUIDELINES FOR EMPLOYERS ANTICIPATING LABOR DISPUTES

1. Pursue a "business as usual" attitude by avoiding any incidents with the striking employees.

2. Designate a company representative to handle media inquiries.

3. Stockpile company product or work overtime to produce services to assist in "waiting out" the strike.

4. Notify any suppliers and deliver entities about the potential for a labor dispute and ascertain their positions. If they refuse to cross picket lines, other vendors should be procured. Give such vendors appropriate telephone numbers for communication with the company. Arrange for off site pick up.

5. Establish residential phone numbers for firm management and employee lists with "pyramid phone tree" calling techniques to arrange the details of employment.

6. Establish alternative pick-up and delivery points for company products and supplies. Inform vendors and management personnel of the rotating schedule for these pick-up points.

7. Contact security services to oversee the companies facilities and grounds. Insure that these investigative services have monitoring devices and good personnel to provide adequate and effective security and evidence in the event ULP's are filed.

8. Arrange for employee pick-ups at various locations to enable new labor personnel to enter the plant facility via a pre-arranged meeting place. Work force convoys are helpful.

9. Criminal statutes should be consulted and legal counsel should be available to company personnel and security services to assist in the evidentiary process.

10. Company equipment and vehicles should be properly obscured from the view and access of striking employees.

11. Unlisted phone numbers and communication techniques may be necessary depending upon the level of emotion displayed in the picketing.

12. Immediately issue paychecks for all earned compensation and accrued benefits to striking employees including insurance cutoffs with certified correspondence outlining appropriate rights of insurance conversion. Employees should also be advised to pick up personnel items at a specified location as the company cannot be responsible for lost or missing items.

13. Contact your state unemployment agency immediately after the strike commenced to notify the agency of the ineligibility of the striking employees.

14. Arrange to secure a pool of qualified labor applicants. Pay particular attention to accessible and available "friends" of the company to enable a smoother transition.

15. Prepare a comprehensive list of available police and security personnel. Notify appropriate police department heads of the inception of the strike and the necessity for close communication between the company and the police department.

16. Have company draft appropriate telegrams to unions and police department concerning establishment of separate gates with clarity concerning eligible entrances at each gate. Such notices should be mailed to appropriate union locals as well.

17. Replacement employees should be given written confirmation of their status as permanent replacements as defined under federal labor law with a signature of the employee acknowledging his/her hiring status.

18. While notifying the striking employees of the termination of their benefits and wages, great care should be taken to insure that they are not informed that they have been terminated. Discharging a striker will produce conversion of an economic strike to a ULP if strikers are terminated rather than permanently replaced.

19. After permanently replacing striking employees, unconditional offers to return will be accepted by the employer for positions which have not been permanently filled (economic strike).

20. Correspondence should be directed to the union indicating that strike misconduct is not condoned and the company will take appropriate action against striker picket line misconduct including disciplinary action against striking employees.

21. Striking employees who wish to return to work and cross the picket line may be instructed to send correspondence to the union.

22. Any employees engaging in wrongful picket line misconduct should be notified immediately by telegram of their suspension pending advisability of discharge. Specifics relating to the acts in which they have been engaged in should be listed briefly.

23. Comprehensive forms should be drafted for company security personnel to report acts of misconduct, including the time, date, agency, manner in which entrances were blocked, etc.

COMMUNICATIONS WITH STRIKING EMPLOYEES

Lawful statements

1. Explain to employees the benefits they presently enjoy, the terms of the latest offer, and how well they will compare with employees of other companies.

2. Urge another vote on the offer.

3. Caution employees about the disadvantages of strike - the loss of income, the requirement to serve on a picket line, and the right of the company to hire replacements.

4. Correct any untrue or misleading statements made by the union.

5. Advise employees of their legal right to refrain from striking.

6. Enforce normal plant rules with strikers just as with non-striking employees.

7. Consult with legal counsel about placing into effect for any bargaining - unit employees who may be working during the strike, the terms of the company's most recent offer to the union.

8. State that the plant is open and that work is available during the strike.

Unlawful statements

1. Refuse to bargain after the strike begins.

2. Insist that the strike be abandoned as a condition for resuming bargaining.

3. Promise strikers (or grant to bargaining unit employees who may be working) a wage increase or improvement in benefits or terms not previously offered to the union in negotiations.

4. Bargain individually with employees, even on minor matters.

5. Tell strikers that they will be "discharged", "terminated", "considered to have resigned", or "regarded as new applicants" if they fail to return to work.

6. Threaten to close or move the plant or reduce drastically operations.

7. Spy on union meetings.

8. Threaten any sort of reprisal for striking.

9. Take pictures of peaceful picketing for the purposes of intimidating pickets.

10. Call individuals or small groups of employees into supervisors' offices for anti-union speeches.

11. Make false statements about the union.

12. Discourage membership in or support of the union.

13. Ask how a striker voted.

Replacements for economic strikers. In an economic strike, there is no legal bar to the employer's hiring permanent replacements for the strikers. Once the striker has been permanently replaced, the employee is entitled to reinstatement only as future job openings occur. Note that an economic strike may change to a ULP strike, and employers should obtain competent legal advice before proceeding. The wisdom of a replacement program is dependent upon a number of factors, including:

1. The level of skill of the employees.

2. The availability of replacement workers in the community.

3. Wage levels.

4. Labor climate in the area.

5. The possibility of further boycotting of products by customers or customers' employees in support of the union.

If the decision is made to replace strikers, the following rules should be observed (Note that this is a very important and potentially costly decision, and employers should obtain competent legal advice before proceeding):

1. Because a striking employee has a legal right individually to abandon the strike and return to work and because, from a standpoint of skills and training investment, he ordinarily is a much more desirable employee than a new one, it is usually advisable (although not required) to invite striking employees to return before hiring replacements.

2. The communication to striking employees should:

a) Be carefully phrased to avoid coercion or any appearance of discouraging membership in, or support of, the union.

b) Be in the form of a certified letter to the home of each employee.

c) Explain the mutual rights of the parties.

d) Stress the economic reasons for hiring in order to resume or increase production.

e) Avoid use of the words "terminated" or "discharged" and use only "replaced".

f) Set a deadline for the start of hiring permanent replacements. State that the business needs of the company are such that failure to report on or before that date will be taken as an indication that the employee does not wish to return to work and that the company must then proceed to take necessary steps to meet its business demands.

3. Hire replacements from among available applicants, advertise in appropriate newspapers for replacements for strikers, or use regular private employment agencies. State employment services will generally not refer workers to fill strikers jobs. Check state law for restrictions on advertising for replacements.

4. If applicants are interviewed away from the plant, they should be advised of the strike and picketing.

5. Before communicating with replacements you should speak with a competent attorney in the state where you do business. A possible option you may consider is to inform the replacements that they are being hired on a permanent basis, and if they prove to be satisfactory employees, and provided their retention is consistent with obligations, rights, and privileges accorded under federal and state statutory and common law, they may be retained indefinitely. However, you should realize that promises made to replacements may be binding under state law, and your desire to characterize the replacements as "permanent" may conflict with a desire to limit your obligation to them. Again, you should obtain legal advice before communicating with replacements.

6. Use the same wage rate brackets for the replacement employees; do not pay higher rates.

7. Within each job classification, prepare a list of employees in seniority order, replace the employees in inverse order of seniority until all employees in the classification have been replaced, have the records show that a particular employee, by name, was replaced by a particular new employee, by name.

8. Send a letter to the last known address of the replaced striker stating, "you have been permanently replaced." Date and mail the letter the day the replacement is hired.

Unemployment compensation for strikers. To minimize the possibility that strikers will be ruled eligible, the following steps should be considered (Note that the law is different in each state, and the replacement of strikers may trigger liability under state unemployment compensation law. You should consult a competent attorney in your state before taking action.):

1. Within three days after the start of the strike, notify the appropriate unemployment compensation office of the strike, enclosing a list of the names and social security numbers of all strikers.

2. All employees (strikers and non-strikers) are to be advised that the plant is open and that they are expected to report for work as usual.

3. Supervisors are to be instructed that they are not even to suggest that work is not available during the strike.

4. Regular employee gates are to be kept open.

5. Employees reporting for work are to be admitted.

6. Timecards are to be placed in the regular racks.

7. Normal starting whistles, etc. are to be blown.

8. If the plant is not operating, power necessary to operate machinery should be ready to turn on.

9. Supervisors are to be stationed in their regular places, ready to put anyone to work who reports.

10. Any claims by striking employees for benefits are to be challenged.