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The Right to Strike

Section 7 of the National Labor Relations Act (NLRA) states in part, “Employees shall have the right. . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Strikes are included among the concerted activities protected for employees by this section. The U.S. Supreme Court has upheld the right of employees to go on strike whether they have a union or not. Specifically, in 1962, the Supreme Court in NLRB v. Washington Aluminum upheld the NLRB’s decision that workers in a non-unionized workplace who walked out because it was too cold were protected under the NLRA and the employer could not fire them.

While the right to strike is a fundamental right under the NLRA, there are also many limitations and qualifications on the exercise of that right. The following is only a brief outline. A detailed analysis of the law concerning strikes, and application of the law to all the factual situations that can arise in connection with strikes, is beyond the scope of this site. Employees and employers who anticipate being involved in strike action should proceed cautiously and on the basis of competent advice.

Lawful and unlawful strikes. The lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers. The object, or objects, of a strike and whether the objects are lawful are matters that are not always easy to determine. Such issues often have to be decided by the National Labor Relations Board. The consequences can be severe to striking employees and struck employers, involving questions of whether employers can lawfully terminate or replace workers or whether workers have a right to return to their jobs, with reinstatement and monetary relief.

Strikes for a lawful object.Employees who strike for a lawful object fall into two classes “unfair labor practice strikers” and “economic strikers.” Both classes continue as employees, but unfair labor practice strikers have greater rights of reinstatement to their jobs. 

Unfair labor practice strikers defined.Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged. 

Economic strikers defined. If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. They retain their status as employees and cannot be discharged, but they can be replaced by their employer under certain circumstances. 

If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers monetary relief starting at the time they should have been reinstated. 

Strikes unlawful because of purpose. A strike may be unlawful because an object, or purpose, of the strike is unlawful. 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, may be a strike for an unlawful object. For example, it is an unfair labor practice under Section 8(a)(3) of the NLRA for an employer to discharge an employee for failure 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 a strike for an unlawful object and, therefore, an unlawful strike. 

Furthermore, Section 8(b)(4) of the Act prohibits strikes for certain objects even though the objects are not necessarily unlawful if achieved by other means. An example of this would be a strike to compel Employer A to cease doing business with Employer B. It is not unlawful for Employer A voluntarily to stop doing business with Employer B, nor is it unlawful for a union merely to request that it do so. It is, however, unlawful for the union to strike with an object of forcing the employer to do so. These points will be covered in more detail in the explanation of Section 8(b)(4). In any event, employees who participate in an unlawful strike may be discharged and are not entitled to reinstatement. 

Section 8(b)(7) of the Act also restricts picketing with a purpose of gaining recognition for more than 30 days under certain circumstances.

Strikes unlawful because of timing—Effect of no-strike provision in a contract. A strike that violates a no-strike provision of a contract is not protected by the Act, and the striking employees can be discharged or otherwise disciplined, unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. It should be noted that not all refusals to work are considered strikes and thus violations of no-strike provisions. A walkout because of conditions abnormally dangerous to health, such as a defective ventilation system in a spray-painting shop, has been held not to violate a no-strike provision. 

Same—Strikes at end of contract period.Section 8(d) provides that when either party desires to terminate or change an existing contract, it must comply with certain conditions, including providing written notice to the other party and notifying the Federal Mediation and Conciliation Service and State or Territorial agencies. If these requirements are not met, a strike to terminate or change a contract is unlawful and participating strikers lose their status as employees of the employer engaged in the labor dispute. If the strike was caused by the unfair labor practice of the employer, however, the strikers are classified as unfair labor practice strikers and their status is not affected by failure to follow the required procedure. 

Strikes unlawful because of misconduct of strikers or other loss of protection. The U.S. Supreme Court has ruled that a “sitdown” strike, when employees simply stay in the plant and refuse to work is not protected by the law. The NLRB has also held that workers who engage in intermittent strikes, or strikes that involve “a plan to strike, return to work, and strike again” are not protected, though the NLRB General Counsel is urging the NLRB to reconsider this area of law. The NLRB has also held that 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.

Strikers who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and unfair labor practice strikers.

Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement are:

  • Strikers physically blocking persons from entering or leaving a struck plant.
  • Strikers threatening violence against nonstriking employees.
  • Strikers attacking management representatives. 

Section 8(g)—Striking or Picketing a Health Care Institution Without Notice. Section 8(g) prohibits a labor organization from engaging in a strike, picketing, or other concerted refusal to work at any health care institution without first giving at least 10 days’ notice in writing to the institution and the Federal Mediation and Conciliation Service. 

For more information please see the  Basic Guide to the National Labor Relations Act. For those workers covered by the Railway Labor Act, you may contact the National Mediation Board with questions.

This page was posted by the Office of the General Counsel, and it represents the General Counsel’s positions. It has not been reviewed or approved by the Board. The information contained here may be subject to unstated exceptions, qualifications, or limitations, and it may be rendered unreliable without prior notice by subsequent changes in the law.