Kara Sears
The right to strike is protected under the National Labor Relations Act (NLRA) in the US, but not all strikes are legal. The NLRA guarantees the right to strike, but also restricts and shapes the extent of this right. The lawfulness of a strike depends on its object or purpose, its timing, and the conduct of the strikers. Strikes may be deemed unlawful because of their purpose, the misconduct of strikers, or other losses of protection. In the UK, there is no right to strike in UK law, and employees who strike risk dismissal. In Germany, the Basic Law bans civil servants from going on strike. In Canada, the federal and provincial governments can introduce back-to-work legislation to block strike action. In the US, the Taft-Hartley Act, introduced in 1947 after a major strike wave in 1945 and 1946, restricts the activities and power of labour unions and adds new restrictions on union actions.
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What You'll Learn
The right to strike
In the US, private sector employees have a legally protected right to strike to gain better wages, benefits, or working conditions, and they cannot be fired. However, federal laws may bar workers in certain industries from striking or significantly limit their right to do so. For example, the Railway Labor Act bans strikes by airline and railroad employees except in specific circumstances. The Taft-Hartley Act, passed in 1947, also added new restrictions on union actions, designating new union-specific unfair labor practices and prohibiting certain types of strikes, such as wildcat strikes and solidarity strikes.
The lawfulness of a strike may depend on its purpose, timing, and the conduct of the strikers. Strikes may be deemed unlawful if they are in support of an unfair labor practice, such as compelling an employer to discharge an employee for failing to make certain lawful payments to a union. Unfair labor practices also include jurisdictional strikes, where a union strikes to assign particular work to its employees. Additionally, the US Supreme Court has ruled that "sitdown" strikes, where employees remain in the plant and refuse to work, are not protected by law. Strikes that involve violence or other disruptive activity may also become unlawful and lose their NLRA protection.
Strikes can be classified as either "unfair labor practice strikes" or "economic strikes". Unfair labor practice strikers are those who strike to protest an unfair labor practice committed by their employer, and they cannot be discharged or permanently replaced. When the strike ends, they are entitled to have their jobs back, even if employees hired to do their work must be discharged. On the other hand, economic strikers are those who strike to obtain economic concessions from the employer, such as higher wages or better working conditions. These strikers can be permanently replaced, and they must wait for a vacancy to return to their jobs.
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Lawful vs unlawful strikes
The lawfulness of a strike depends on several factors, including its purpose, timing, and the conduct of the strikers. While workers generally have a right to strike, not all strikes are considered legal. Strikes for unfair labour practices, economic reasons, and sympathy are considered lawful. Unlawful strikes are often defined by the methods used by the striking workers, such as slowdown strikes or intermittent strikes.
Lawful Strikes
Employees who strike for a lawful object fall into two classes: "unfair labour practice strikers" and "economic strikers". Unfair labour practice strikers are workers who strike to protest an unfair labour practice committed by their employer, such as violations of minimum wage laws, unsafe working conditions, or interference with labour organizing efforts. Such strikers cannot be discharged or permanently replaced and have a right to reinstatement after the strike ends. Economic strikers are workers who strike to obtain economic concessions from the employer, such as higher wages, shorter hours, or better working conditions. These strikers cannot be fired but can be replaced by permanent replacements.
Sympathy strikes, or refusing to cross a picket line in solidarity with striking workers, are also considered lawful.
Unlawful Strikes
Strikes may be considered unlawful due to their purpose, the misconduct of strikers, or other loss of protection. A strike may be deemed unlawful if its purpose is to support an unfair labour practice committed by a union or if it would cause an employer to commit an unfair labour practice. For example, a strike to compel an employer to discharge an employee for failing to make certain lawful payments to the union when there is no union-security agreement in place would be considered unlawful. Additionally, strikes that involve violence or other forms of mass disruption may lose their legal protection.
Certain industries, such as the railroad and airline industries, have restrictions on the right to strike, and some workers, such as civil servants in Germany, are banned from striking altogether. In the UK, there is no legal right to strike, and employees who do so risk dismissal unless it is an official strike called or endorsed by their union, in which case they are protected from unlawful dismissal for at least 12 weeks.
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Limitations on the right to strike
The right to strike is protected under the National Labor Relations Act (NLRA), but not all strikes are legal. 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 lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers.
Firstly, the purpose of the strike must be lawful. Strikes in support of unfair labour practices, such as violations of minimum wage laws or unsafe working conditions, are unlawful. Strikes may also be unlawful because of the misconduct of strikers or other losses of protection. For example, the U.S. Supreme Court has ruled that a "sitdown" strike, when employees occupy the workplace but refuse to work, is not protected by the law. Workers who engage in intermittent strikes, or strikes that involve a plan to strike, return to work, and strike again, are also not protected. Furthermore, the NLRA does not protect strikers who fail to take "reasonable precautions" to protect their employer's property from foreseeable danger due to the sudden cessation of work. Strikers who engage in serious misconduct in the course of a strike, such as violent acts or threats of violence, may be refused reinstatement to their former jobs.
Secondly, the timing of the strike matters. Some state and federal laws either bar workers in certain industries from striking or significantly limit their right to strike. For example, the Railway Labor Act (RLA) bans strikes by United States airline and railroad employees except in narrowly defined circumstances. The Taft-Hartley Act, which amended the NLRA, also added a list of prohibited actions, including jurisdictional strikes, wildcat strikes, solidarity or political strikes, secondary boycotts, secondary and mass picketing, closed shops, and monetary donations by unions to federal political campaigns.
Finally, the behaviour of the strikers must be considered. An otherwise lawful strike can become unlawful if the striking workers turn to violence or other forms of mass disruption. Additionally, a strike may lose its NLRA protection if the striking workers fail to provide adequate notice. For example, a labour organization is prohibited from striking at a healthcare institution without providing at least 10 days' written notice.
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Striking for economic reasons
However, it is important to note that while economic strikers cannot be fired, they can be permanently replaced by their employers. This means that the employer can hire bona fide permanent replacements to fill the positions of the striking workers. When the strike ends, the economic strikers must wait for vacancies to become available before they can return to their previous positions.
The lawfulness of a strike, including economic strikes, may depend on factors such as the purpose or object of the strike, its timing, and the conduct of the strikers. Strikes may be deemed unlawful if they involve violence, serious misconduct, or other forms of mass disruption. Additionally, certain industries or sectors may have restrictions or limitations on the right to strike, as outlined in laws such as the Railway Labor Act, which applies to workers in the railroad and airline industries.
In some cases, governments may also intervene to end strike action through the use of "back-to-work legislation," which blocks the strike from continuing. This has been used in countries like Canada for federally regulated industries, including rail and air travel.
It is worth noting that the laws and regulations surrounding strike action can vary from country to country, and even within different sectors or industries within a country. As such, it is important for employees and employers to seek competent advice and carefully consider the specific circumstances and legal framework applicable to their situation.
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Unfair labour practices
In the United States, the National Labor Relations Act (NLRA) of 1935 protects the right of private sector employees to strike for better wages, benefits, or working conditions. However, there are limitations and qualifications to this right. For instance, striking workers are not protected by the NLRA if they engage in violence or other disruptive activities, or if they fail to take "reasonable precautions" to protect their employer's property.
While the NLRA protects the right to strike, certain industries, such as the railroad and airline industries, are subject to the Railway Labor Act (RLA) which significantly limits this right. Additionally, strikes may be deemed unlawful if the purpose or object of the strike is unlawful, such as supporting an unfair labour practice committed by a union.
In the UK, there is no legal right to strike, and employees who participate in unofficial strikes risk dismissal. Official strikes, which are called or endorsed by a union, offer some protection from unlawful dismissal, and participants cannot be fired for at least 12 weeks.
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Frequently asked questions
The Taft-Hartley Act, or the Labor Management Relations Act, is a United States federal law that restricts the activities and power of labour unions. It was enacted in 1947 after a major strike wave in 1945 and 1946. The Act adds new restrictions on union actions and designates new union-specific unfair labour practices.
The Taft-Hartley Act outlaws jurisdictional strikes, wildcat strikes, solidarity or political strikes, secondary boycotts, secondary and mass picketing, closed shops, and monetary donations by unions to federal political campaigns.
The NLRA is a United States federal law that protects the right of workers to organise and form unions, to engage in collective bargaining with their employers, and to go on strike under certain circumstances.
The RLA is a United States federal law that bans strikes by airline and railroad employees except in specific circumstances.
Back-to-work legislation is a special law that blocks strike action from happening or continuing. It has been used by the Canadian federal government in industries such as rail and air travel.
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