What should we do if our employees decide to strike?
Quick Answer
Determine whether the strike involves economic strikers or unfair labor practice strikers, and proceed accordingly. Be prepared to bargain, and place any needed safety measures in place.
Legal Perspective
Wickens Herzer Panza
Avon, Ohio
First things first: Call your labor lawyer, says employment law attorney Jon Hyman.
That’s an important first step because legal strikes come in two flavors: 1) economic strikes (in response to complaints about wages, hours, or other work conditions), and 2) unfair labor practice strikes (in protest of an employer’s alleged unfair labor practices). The law differentiates between the two in how you can respond. You need to know what you can and cannot legally do to avoid making an already bad situation even worse.
Here are several more do’s and don’ts to be aware of in the event of a strike:
- DON’T retaliate against striking workers.
- DO hold striking employees accountable for their own serious misconduct such as threats, violence, or vandalism.
- DON’T make promises to entice employees to abandon their jobs and return to work.
- DO prohibit your managers and supervisors from joining their subordinates on the picket line. The NLRA does not protect managers and supervisors; you can lawfully prohibit them from walking off the job in solidarity and discipline them if they do.
- DO stop paying striking employees. They’re not working, so why pay them?
- DON’T replace employees out on an unfair labor practice strike. That’s an unfair labor practice in and of itself.
- DO consider permanently replacing employees out on an economic strike.
- DO seek a restraining order in court to limit violence, threats, vandalism, and disruptive picketing, if necessary.
Relevant Case Law
Rodriguez v. Ohio Dep’t of Job & Family Services
Pattern Makers’ League of North America v. NLRB
Air Line Pilots Ass’n Int’l v. O’Neill
HR Insight
Broaster Company
Beloit, Wisconsin
First, decide if the strike is legal/protected or illegal/unprotected, says HR Manager Lindsey Herrera. Then, you’ll also need to:
- Meet with management to discuss the strike
- Have a contact point with someone on the other side of the line for negotiations
- Contact HR legal counsel, and
- Try to keep business moving or notify customers that you cannot for a period of time while protecting financial interests.
CertiK
New York, New York
Understand the reasons for the strike, says HR Leader Erin ImHof. For example, do they want more money? Better working conditions, etc.?
Come prepared to bargain with the union and work closely with leadership to determine what they can negotiate with and what are their sticking points. Keep good communication with the union, work closely with attorneys and bargain in good faith.
Key Takeaways
- Federal law gives employees the right to strike, but it also places limitations on that right.
- The lawfulness of a strike can depend on its timing, its purpose, and the conduct of the strikers.
- Lawful strikes involve what are known as “economic strikers” or “unfair labor practice strikers.”
- Economic strikers can be replaced.
- Unfair labor practices strikers cannot be permanently replaced.
- Make plans for replacement workers if appropriate.
- Enhance security measures.