An employee’s right to strike is a critical component of the right to organize but is not without limitations. Certain strikes qualify as protected activity under the U.S. National Labor Relations Act (NLRA), but not all strikes are protected. The main types of strikes covered by the NLRA are:
- Unfair labor practice strikes, which protest employers’ illegal activities.
- Economic strikes, which may occur when there are disputes over wages or benefits.
- Recognition strikes, which are intended to force employers to recognize unions.
- Jurisdictional strikes, which are concerted refusals to work to affirm members’ right to particular job assignments and to protest the assignment of work to another union or to unorganized employees.
A unionized employee’s right to reinstatement after a strike ends varies based on the type of strike and the underlying reason for the strike. Employers are allowed to hire replacement workers during unfair labor practice strikes and economic strikes.
Economic strikers who are striking as a result of the employer’s failure to reach an agreement over wages or other working conditions may be permanently replaced but cannot be terminated. Strikers who are striking as a result of an unfair labor practice cannot be permanently replaced or terminated.
At the end of a strike, unfair labor practice strikers are entitled to be reinstated to their former positions (even if that means the employer has to terminate replacement workers) as long as they have not participated in any misconduct. Economic strikers who offer to return to work after the employer has hired permanent replacement workers are not entitled to reinstatement. However, if they can’t find equivalent employment elsewhere, they are entitled to be recalled as job openings become available.
Union members lose protection when they engage in strikes considered unlawful under the NLRA (e.g., sit-down strikes, strikes that endanger employers’ property, strikes during “cooling-off” periods or strikes to force acceptance of featherbedding practices). The right to strike also may be limited by any agreements employees may have with the employer to submit disputes to arbitration for a specified period of time before striking.
Additional information regarding the NLRA is available on the National Labor Relations Board website.
See also: NFIB's Guide to Managing Unionization Efforts
Please Note: This material is provided as general information and is not a substitute for legal or other professional advice.
Article provided by SHRM