Whenever employers and workers can’t see eye-to-eye on important issues, there’s always the possibility of a work stoppage.
Labor disputes and how they are resolved can be confusing. The most important thing to recognize is that some work stoppages are protected by federal law, while others are not.
Whether a work stoppage is lawful depends on the circumstances. No two labor disputes are exactly alike, so the outcome will always hinge on a fact-specific analysis.
The National Labor Relations Act
The National Labor Relations Act (NLRA) is the federal law that governs the relationships among workers, unions, and employers. Although the NLRA recognizes the right to organize and carry out a strike, not all work stoppages are protected by federal law.
In general, a work stoppage in the private sector is legal if it satisfies three requirements:
- There must be a lawful object. Generally, there are two types of legal work stoppages: economic strikes and unfair labor practices strikes. With an economic strike, workers are usually seeking higher pay, better benefits, or improved working conditions. In contrast, examples of unfair labor practices include an employer refusing to engage in good-faith collective bargaining or interfering with an employee’s right to join a union. Striking for any of these reasons is generally considered to be legal.
- The workers must walk out at a lawful time. The NLRA does not protect workers who strike in violation of a no-strike clause in a labor contract. Similarly, striking to change or terminate an existing contract could be illegal if certain conditions in the contract are not satisfied before the work stoppage occurs.
- The strikers must behave in a lawful manner. Employees who engage in serious misconduct are not protected by federal law. Violence, threats of violence, and physically blocking people from entering and leaving the workplace is illegal. It’s also illegal to engage in a “sit down.” In other words, strikers cannot occupy the workplace in such a way that prevents the employer from using its own equipment and property or prevents non-striking employees from getting work done.
From a legal perspective, the significance of “protected” or lawful strikes is job security. Economic strikers can be replaced by their employer but do enjoy certain reinstatement rights. Workers who are striking because of an unfair labor practice have even greater rights. The general rule is that these workers cannot be discharged or permanently replaced. They can also get back pay if they’re unlawfully denied reinstatement.
Intermittent Strikes and Work Stoppages
Striking multiple times in a short time span for the same goal is generally unprotected, even if the purpose of the work stoppages is lawful. These types of stoppages are called intermittent strikes, and the Supreme Court held that they are not protected by the NLRA in Auto Workers Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245 (1949).
The problem with conducting a series of short work stoppages is that they are extraordinarily disruptive to the employer’s business. It can be particularly difficult for the employer to find replacements workers because the work stoppages are over relatively quickly.
Recently, in Walmart Stores, Inc., NLRB No. 24 (July 25, 2019), non-union Walmart workers created an organization called “OUR Walmart” and organized four walkouts in an attempt to improve working conditions. The walkouts occurred between October 2012 and November 2013, lasted anywhere from one to six days, and involved as many as 130 employees for the third strike and an unspecified amount on the fourth. Fifty-four employees were disciplined for violating Walmart’s attendance policy as a result of the third strike, causing the dispute to end up in litigation.
The Administrative Law Judge held that the third strike was lawful and not intermittent because it occurred seven months after the second and the strike itself was fairly long, lasting five to six days. In other words, a sufficient time passed between the second and third strike and the work stoppage itself was long enough in duration.
The NLRB, however, held that the third strike was illegal because there was evidence that it was part of a larger strategy to employ a series of short, recurring strikes in support of the same goal. According to the NLRB “a plan to strike, return to work, and strike again, repeatedly” is not protected by the Act.
Work Slowdowns
Work slowdowns are not protected by the NLRA. In a slowdown, workers intentionally lower productivity in an attempt to gain leverage on their employer. Unlike lawful strikers, the employees are still collecting a paycheck from the employer, all the while undermining its business.
In these situations, the employees (or union if the workers are unionized) often argue that the slowdown is the product of low morale and not the result of a planned, concerted effort by the employees.
An employer, however, can counter this argument if it can demonstrate an appreciable business impact during the time of the alleged slowdown.
Contact a Labor Lawyer
Labor disputes are complex and can involve multiple parties with competing interests. If you're a worker or employer involved in a labor dispute that could result in a strike, walkout, or slowdown, it’s important to seek the advice of an experienced lawyer.