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.