Keith Mack
Strikes are a fundamental right of employees, and the law protects workers who participate in lawful strikes. However, the legality of a strike depends on its purpose, timing, and conduct, and unlawful strikers may face termination. Employers can also lawfully lockout their employees to exert economic pressure and compel them to agree to terms and conditions, but this must be done in accordance with the relevant labour codes. This article will explore the legality of strikes and lockouts and the rights of employees and employers during these events.
| Characteristics | Values |
|---|---|
| Can employers lock out employees? | Yes, employers can lock out employees to exert economic pressure and encourage employees' unions to accept the employer's negotiation proposals. |
| Can employees strike? | Yes, employees can lawfully strike against employers. |
| What is the purpose of a strike? | Strikes are a legitimate part of the collective bargaining process. Employees can strike to obtain recognition of their collective bargaining rights by an employer, or to address issues such as low wages or unfair labor practices. |
| Are all strikes lawful? | No, strikes may be unlawful due to their purpose, timing, or the conduct of strikers. For example, a strike in support of an unfair labor practice or a "sitdown" strike may be unlawful. |
| Can employees be fired for striking? | Employees who participate in a lawful strike are protected and cannot be fired. However, those who take part in unlawful strikes may be lawfully terminated. |
| What is the role of the National Labor Relations Board (NLRB)? | The NLRB interprets and enforces the National Labor Relations Act (NLRA) and determines whether a strike is lawful or unlawful. |
| What is the process for declaring a strike or lockout unlawful? | In Canada, an application for a declaration of an illegal strike or lockout can be made to the Canada Industrial Relations Board. The process involves providing specific information, such as the names and contact information of the parties involved and a description of the context and relevant facts. |
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What You'll Learn
- Strikes are a legitimate part of the collective bargaining process
- Employers can lock out employees to encourage unions to accept negotiation proposals
- Strikes must be for a lawful purpose to be protected
- Employees cannot be fired for participating in a protected strike
- Employers must prepare a comprehensive Strike Book to deal with strikes
Strikes are a legitimate part of the collective bargaining process
Strikes and lockouts are a legitimate part of the collective bargaining process. The right to strike is a fundamental right of employees, and the U.S. Supreme Court has upheld this right, regardless of union affiliation. The Canada Labour Code also recognises the right of employees to lawfully strike against employers and for employers to lockout employees to encourage agreement on terms and conditions of employment.
Strikes are a powerful tool for unions to exert economic pressure on employers. The threat of a strike alone can be enough to gain concessions from employers, and unions will often threaten to strike before a walkout occurs. However, the lawfulness of a strike depends on its object, purpose, timing, and the conduct of strikers. Strikes for unlawful purposes, such as supporting unfair labour practices, are not protected. For example, a strike to compel an employer to discharge an employee for failing to make certain lawful payments to a union when no union-security agreement is in effect would be unlawful.
Employees engaging in lawful strikes are protected from retaliation by employers. Under the National Labor Relations Act (NLRA), employers are prohibited from firing workers for striking or picketing. Employees who believe they have been wrongfully terminated for participating in a lawful strike may be able to claim damages, including back pay and job reinstatement. However, it is important to note that unlawful strikes do not offer the same protections, and employees can be lawfully terminated for participating in such actions.
To ensure lawfulness, employees should review their employee manuals and seek competent legal advice before proceeding with strike action. Additionally, unions must receive a strike mandate from their members, with strike votes being valid for 60 days, and provide 72 hours' notice to the employer and the relevant labour authority before striking. Employers must also be prepared for potential strikes, with comprehensive strike plans in place to ensure the continued operation of their businesses.
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Employers can lock out employees to encourage unions to accept negotiation proposals
Strikes are a fundamental right of employees, whether they are unionized or not. The right to strike is protected under the National Labor Relations Act (NLRA) in the United States and the Canada Labour Code. While striking is a legitimate way for employees to exert economic pressure on employers, it is important to note that not all strikes are protected by law. Strikes may be deemed unlawful due to their purpose, timing, or the conduct of the strikers. For example, a strike in support of an unfair labor practice or one that involves misconduct or property damage may be considered unlawful.
Employers can indeed lock out their employees as a strategic move during collective bargaining. A lockout is when an employer denies employees access to the workplace, often as a way to encourage the union to accept the employer's negotiation proposals. Just as strikes put economic pressure on employers, lockouts exert economic pressure on union members. While lockouts are legal, they must be executed carefully and in compliance with the relevant labor laws. Employers who do not seek legal advice before implementing a lockout risk violating the law.
In the United States, the National Labor Relations Board (NLRB) is responsible for interpreting and enforcing the NLRA. The NLRB determines whether a strike is lawful and protects employees from retaliation for engaging in protected activities. Employees who participate in lawful strikes are protected from termination and are entitled to reinstatement to their former positions. However, those who take part in unlawful strikes may not be protected and can be lawfully terminated.
In Canada, the Canada Industrial Relations Board plays a similar role in interpreting and enforcing labor laws. They respond to applications involving unlawful strikes and lockouts with a remedial, non-judgmental approach, aiming to end the work stoppage and get everyone back to work. Both employers and unions can contact the Board to intervene and settle disputes before they escalate.
It is important to note that the lawfulness of strikes and lockouts is a complex issue, and specific circumstances can significantly impact their legality. As such, seeking competent legal advice is crucial for both employers and employees before taking any action.
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Strikes must be for a lawful purpose to be protected
Strikes are a legitimate part of the collective bargaining process. Employees can lawfully strike against their employers, and employers can lawfully lock out their employees to encourage them to accept the employer's negotiation proposals. However, strikes and lockouts are only lawful under certain conditions.
The lawfulness of a strike depends on its purpose, timing, and the conduct of the strikers. Strikes for a lawful purpose fall into two classes: "unfair labour practice strikers" and "economic strikers". Both classes continue as employees, but unfair labour practice strikers have greater rights of reinstatement. For example, a strike in support of an unfair labour practice committed by a union, or one that would cause an employer to commit an unfair labour practice, may be a strike for an unlawful purpose. Strikes that involve misconduct or a failure to protect the employer's property from foreseeable danger due to the sudden cessation of work may also be unlawful.
In the US, the National Labor Relations Board (NLRB) interprets and enforces the NLRA, which protects employees' rights to strike and forbids employers from firing workers who exercise these rights. Employees cannot be fired for participating in a protected strike or picketing, and the right to strike is a fundamental right under the NLRA. However, certain kinds of strikes are not protected, and employees can be lawfully fired for participating in an unprotected strike.
In Canada, the Canada Industrial Relations Board interprets each situation on its own facts and circumstances. Strikes and lockouts are not regulated, but the Board determines when they can occur. For example, a strike by employees attempting to obtain recognition of their collective bargaining rights without going through the certification process is unlawful. A strike or lockout arising from frustration with the slowness of collective bargaining is also unlawful if it occurs before the right to strike or lockout has been acquired. The Board's primary objective is to end the work stoppage as quickly as possible and get everyone back to work, rather than to punish either party.
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Employees cannot be fired for participating in a protected strike
Employees have a right to strike under the National Labor Relations Act (NLRA) of 1935. This right is upheld by the U.S. Supreme Court, which has ruled that workers in a non-unionized workplace who walk out are protected under the NLRA and cannot be fired. However, this does not apply to all workers, and certain transportation workers, agricultural laborers, and public employees are not covered by the NLRA. Government employees, for example, do not have a right to strike under federal law, although eight states allow most government employees to do so.
While the right to strike is a fundamental right, it is not without limitations and qualifications. The lawfulness of a strike depends on its object or purpose, timing, and the conduct of the strikers. Strikes for an unlawful purpose, such as supporting an unfair labor practice committed by a union, are not protected. Strikes can also be unlawful due to the misconduct of strikers or the loss of protection, such as in the case of a \"sitdown\" strike where employees occupy their workplace and refuse to work. Intermittent strikes, where employees strike on and off, are also not protected.
Most strikes are protected, and employees cannot be fired for participating in a protected strike or picketing against their employer under federal law. When a protected strike ends, employees are entitled to return to work. If the strike was against unfair labor practices, strikers must be immediately reinstated. In the case of economic issues, employees are also entitled to immediate reinstatement unless the employer hired permanent replacements, in which case returning strikers are placed on a preferential hiring list.
While employees cannot be fired for participating in a protected strike, employers can exert economic pressure by locking out their employees and hiring replacement workers. However, lockouts must be done properly and in compliance with legal restrictions, or employers risk violating the law. It is important for both employees and employers to proceed cautiously and seek competent advice when dealing with strike action.
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Employers must prepare a comprehensive Strike Book to deal with strikes
The threat of a strike can be a daunting prospect for employers, but there are steps they can take to prepare and protect their business. A comprehensive Strike Book is a vital tool for employers to effectively manage strike action and maintain business continuity.
A Strike Book is a detailed document that outlines the employer's plan of action in the event of a strike. It is a central repository of information, directives, and strategies designed to ensure the company can continue operating with minimal disruption. The Strike Book should be tailored to the specific organisation, addressing key questions and concerns that may arise during a strike.
The first step in creating a Strike Book is to understand the different types of strikes that can occur and the legal implications of each. Strikes may be classified as protected or unprotected, depending on their purpose, timing, and the conduct of the strikers. Most strikes are protected under federal law, and employees cannot be fired for participating in them. However, certain types of strikes, such as those in support of unfair labour practices or those involving misconduct, may be considered unprotected, and employers may lawfully terminate or replace participating workers. Understanding these distinctions is crucial for employers to make informed decisions and respond appropriately.
The Strike Book should also include contingency plans to address the operational challenges posed by a strike. This includes identifying essential personnel and cross-training employees to ensure key functions can still be performed. Strategies for maintaining safety inside and outside the facility during the strike should also be outlined, as well as procedures to safeguard the employer's property and assets.
Additionally, the Strike Book can outline communication strategies to keep customers, stakeholders, and the public informed during the strike. It is important to maintain transparency and assure customers that the business is still operating effectively. The Strike Book can also detail the employer's negotiation strategies and proposals to address the issues that led to the strike, with the goal of reaching a resolution and ending the strike action.
In conclusion, a comprehensive Strike Book empowers employers to proactively manage strike action, protect their business interests, and maintain continuity of operations. By understanding the legal framework surrounding strikes and developing detailed plans, employers can effectively navigate this challenging situation and minimise its impact on their organisation.
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Frequently asked questions
Yes, employers can lawfully lock out their employees in an effort to compel or persuade them to agree to terms and conditions of employment. However, there are a number of restrictions on lockouts, and employers must consult legal counsel before locking out their employees to avoid violating the law.
The lawfulness of a strike depends on its object, purpose, timing, and the conduct of the strikers. Strikes for unlawful objects are those that support unfair labour practices, such as a strike to compel an employer to discharge an employee for failing to make certain lawful payments to a union. Strikes can also be unlawful because of misconduct, such as a "sitdown" strike, or a failure to protect the employer's property.
If you suspect that the requirements for a legal lockout have not been met, you can ask the Board to declare the lockout illegal and order the employer to let the employees return to work. You will need to write a letter to the Board with the names and contact information of the union and employer involved, a description of the employer's business, and full details of the context, facts, dates, and grounds for the application.
