Wednesday, June 1, 2022

Do you know? Unfair labor practice strikes

Workers who recently organized a Peoria, Illinois, Starbucks walked off the job on a recent Saturday in protest of alleged unfair labor practice committed by their employer at the store. The strike lasted a half-day and there are reports of similar strikes at other stores around the country. quotes one employee on the picket line, Jon Gill, "Starbucks is breaking the law. Starbucks is retaliating against us, and if we do not organize ourselves to fight back, then we are showing Starbucks that we are allowing them to break the law."

Two provisions of the National Labor Relations Act protect the rights of workers to strike:

  • Section 7 — "Employees shall have the right … to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection."
  • Section 13 — "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right."

Read together, those provisions guarantee the right of employees to strike.

There are two basic types of strikes that the NLRA protects — economic strikes and unfair labor practice strikes. The NLRB explains each, along with their key differences:

  • 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. If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers when the strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they, or their bargaining representative, have made an unconditional request for their reinstatement.
  • 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.

Do you notice they key difference? While an employer cannot terminate the employment of any worker lawfully on strike, it can replace an economic striker (including permanently), while it cannot replace an unfair labor practice striker. Unfair labor practice strikers are entitled to their jobs at the end of the strike, even if the employer hired someone in their place to perform their jobs during the strike.

As labor unrest continues to spread across this country, and as employees continue to walk off the job to gain collectively bargaining rights, to gain something in their employment, or to protest something illegal happening in their workplace, employers need to understand the key differences in how they may lawfully respond.