Malcolm Rivera
The right to strike is protected under Section 7 of the National Labor Relations Act (NLRA) in the United States, which states that employees have the right to engage in collective bargaining and other concerted activities for mutual aid or protection. The Taft-Hartley Act, introduced after a major strike wave in 1945-46, amended the NLRA by restricting union actions and designating new union-specific unfair labour practices, such as prohibiting jurisdictional strikes, wildcat strikes, and solidarity or political strikes. The lawfulness of a strike depends on its object, purpose, timing, and conduct, with consequences for both striking employees and employers, including questions of termination, reinstatement, and monetary relief.
| Characteristics | Values |
|---|---|
| Lawfulness of a strike | Depends on the object, purpose, timing, and conduct of the strikers |
| Lawful strikes | "Unfair labor practice strikers" and "economic strikers" |
| Unfair labor practice strikers | Strikers protesting an unfair labor practice committed by their employer; cannot be discharged or permanently replaced and are entitled to their jobs back after the strike |
| Economic strikers | Strikers seeking economic concessions such as higher wages, shorter hours, or better working conditions; retain employee status but can be replaced under certain circumstances |
| National law | Section 7 of the National Labor Relations Act (NLRA) protects the right of employees to strike, regardless of unionization |
| Constitutional amendments | Taft-Hartley Act amended the NLRA, restricting union actions and designating union-specific unfair labor practices |
| Prohibited actions | Jurisdictional strikes, wildcat strikes, solidarity or political strikes, secondary boycotts, secondary and mass picketing, closed shops, monetary donations to federal political campaigns |
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What You'll Learn
The right to strike
However, it is important to note that there are limitations and qualifications to this right. The lawfulness of a strike depends on various factors, including its object or purpose, timing, and the conduct of the strikers. These factors are not always easy to determine, and the National Labor Relations Board often decides on the legality of strikes. Strikes can be classified as "unfair labor practice strikers" or "economic strikers," depending on the object of the strike. Unfair labor practice strikers protest against unfair practices committed by their employer and have stronger reinstatement rights, while economic strikers seek economic concessions such as higher wages or better working conditions.
The Taft-Hartley Act, enacted after a major strike wave in 1945-1946, amended the NLRA by adding restrictions on union actions and designating certain unfair labor practices. It prohibited specific types of strikes, such as jurisdictional strikes, wildcat strikes, and solidarity or political strikes. The act also allowed employers to express their opposition to unions without threatening employees or offering incentives for not unionizing. Additionally, it gave states the power to pass right-to-work laws, banning union shops and agency fees.
While employees have the right to strike, there can be severe consequences for both striking employees and affected employers. Employers may face questions about their ability to terminate or replace workers, while striking employees may face challenges in returning to their jobs and could be subject to termination or replacement under certain circumstances. Therefore, both parties should proceed cautiously and seek competent advice when anticipating strike action.
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Lawful and unlawful strikes
The right to strike is protected under the National Labor Relations Act (NLRA). However, not all strikes are legal. The NLRA guarantees the right to strike, but it also outlines limitations and qualifications on the exercise of that right. The lawfulness of a strike may depend on the object or purpose of the strike, its timing, or the conduct of the strikers.
Lawful Strikes
Employees who strike for a lawful object fall into two classes: unfair labor practice strikers and economic strikers. Unfair labor practice strikers are employees who strike to protest an unfair labor practice committed by their employer. Such strikers cannot be discharged nor permanently replaced. When the strike ends, unfair labor practice strikers are entitled to have their jobs back, even if employees hired to do their work must be discharged. Economic strikers, on the other hand, are employees whose strike aims to obtain economic concessions such as higher wages, shorter hours, or better working conditions from their employer. They retain their status as employees and cannot be discharged, but they can be replaced by their employer under certain circumstances.
Unlawful Strikes
A strike may be unlawful due to its purpose, the misconduct of strikers, or other losses of protection. A strike in support of an unfair labor practice committed by a union or one that would cause an employer to commit an unfair labor practice is considered unlawful. For example, it is an unfair labor practice for an employer to discharge an employee for failing to make certain lawful payments to the union when there is no union-security agreement in effect. A strike to compel an employer to do this would be considered unlawful. Additionally, the NLRA does not protect strikers who fail to take "reasonable precautions" to protect their employer's property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work. The US Supreme Court has also ruled that a "sitdown" strike, when employees occupy the workplace and refuse to work, is not protected by law. Strikes that involve violence and threats of violence are also considered unlawful.
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Unfair labour practice strikers
The right to strike is protected under Section 7 of the National Labor Relations Act (NLRA). The U.S. Supreme Court has upheld the right of employees to go on strike, regardless of unionization. However, the legality of a strike depends on its purpose, timing, and the conduct of the strikers.
The National Labor Relations Board (NLRB) may award monetary relief to unfair labour practice strikers who have been unlawfully denied reinstatement by their employer. This includes situations where strikers have made an unconditional request for reinstatement.
However, it is important to note that not all strikes are protected by the NLRA. Strikes that violate a no-strike provision of a contract are generally not protected, unless they are called to protest certain unfair labour practices by the employer. Additionally, the NLRB has held that intermittent strikes and strikes without "reasonable precautions" to protect the employer's property are not protected.
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Economic strikers
The right to strike is protected under Section 7 of the National Labor Relations Act (NLRA), which states that "employees shall have the right... to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection". The U.S. Supreme Court has upheld this right, ruling in 1962 that workers in a non-unionized workplace who went on strike were protected under the NLRA and could not be fired. However, there are limitations and qualifications to this right.
Employees who strike for a lawful object fall into two categories: "unfair labor practice strikers" and "economic strikers". Economic strikers are employees who strike to obtain economic concessions from their employer, such as higher wages, shorter hours, or better working conditions. They retain their status as employees and are protected from being discharged, but they can be replaced by their employer under certain circumstances.
The lawfulness of a strike may depend on its object or purpose, timing, and the conduct of the strikers. These issues are often decided by the National Labor Relations Board, and the consequences can be severe for both striking employees and employers. Employers may face questions about their right to terminate or replace workers, while employees may face uncertainty about their right to return to their jobs and the possibility of monetary relief.
The Taft-Hartley Act, introduced after a major strike wave in 1945-1946, amended the NLRA by adding new restrictions on union actions and designating new union-specific unfair labor practices. The amendments prohibited certain types of strikes, such as wildcat strikes, solidarity strikes, and secondary boycotts, and allowed states to enact right-to-work laws banning union shops. They also gave employers the right to deliver anti-union messages in the workplace, as long as they did not threaten employees or offer incentives for not unionizing.
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The Taft-Hartley Act
The Labor Management Relations Act of 1947, better known as the Taft-Hartley Act, is a United States federal law that restricts the activities and power of labour unions. The Act was introduced following a major strike wave in 1945 and 1946, during which nearly 2 million workers were engaged in strikes or other labour disputes. The Act amended the 1935 National Labor Relations Act (NLRA), adding new restrictions on union actions and designating new union-specific unfair labour practices.
The Act imposes on unions the obligation to bargain in good faith, prohibits them from charging excessive fees, and requires them to make extensive financial disclosures to all members. It also includes a free speech clause, protecting the expression of views, arguments, or opinions. The Taft-Hartley Act allows union members to organise and collectively bargain with employers, and it protects employees' rights from unfair practices by unions.
The Act also gives employers certain rights, such as allowing them to deliver anti-union messages in the workplace and giving them the right to file a petition to determine if a union represents a majority of its employees. It also excludes supervisors from coverage under the Act and allows employers to terminate supervisors engaging in union activities.
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Frequently asked questions
The NLRA states that "employees shall have the right... to engage in... activities for the purpose of collective bargaining or other mutual aid or protection". Strikes are included in these protected activities. The act also upholds the right of employees to go on strike regardless of unionization.
The Taft-Hartley Act amended the NLRA by restricting the activities and power of unions. It prohibits certain actions, including jurisdictional strikes, wildcat strikes, solidarity strikes, and secondary boycotts. It also allows employers to deliver anti-union messages in the workplace.
Unfair labour practice strikers are employees who strike to protest an unfair labour practice committed by their employer. They cannot be discharged or permanently replaced. When the strike ends, they are entitled to their jobs back.
Economic strikers are employees who strike to obtain economic concessions from their employer, such as higher wages or better working conditions. They retain their status as employees but can be replaced by their employer under certain circumstances.
