Labor strikes are an important part of this country’s economic history. Workers have gone on strike to demand better wages, safer working conditions, and many other improvements.
The labor movement of the early 20th Century is arguably responsible for many features of the workplace that people take for granted today, like the five-day, 40-hour work week.
In 1935, Congress passed the National Labor Relations Act (NLRA), which protects the right of workers to organize and form unions, to engage in collective bargaining with their employers, and to go on strike under certain circumstances. Other statutes, however, bar workers in certain industries from going on strike.
Whether a particular strike is “legal” or not depends on several factors, based on both federal and state law. Saying that a strike is “illegal” or “unlawful” does not necessarily mean that it is “criminal.” In most cases, calling a strike “unlawful” means that federal labor statutes do not protect striking workers from losing their jobs. As discussed below, however, criminal penalties can be an issue.
The key questions for determining whether a strike is lawful are:
- why the strike is happening
- how it is happening, and
- who is going on strike.
What Is the Purpose of the Strike?
The NLRA protects workers who engage in a strike for a lawful purpose, using lawful methods. This means that employers may not interfere with workers lawfully participating in a strike, nor may they retaliate against them. Employers can hire replacements, but they cannot fire the striking workers.
Lawful Strikes
Workers may lawfully go on strike for certain purposes, including:
- Unfair labor practices: Strikes intended to oppose unfair or unlawful practices by an employer, such as violations of minimum wage or overtime compensation laws, unsafe working conditions, or interference with labor organizing efforts.
- Economic reasons: Strikes intended to gain concessions from the employer, such as higher wages, improved working conditions, or additional employment benefits.
- Sympathy strikes: Refusal to cross a picket line in sympathy for or solidarity with striking workers.
Unlawful Strikes
Workers engaged in an unlawful strike are not protected by the NLRA. Unlawful strikes are largely defined by the methods used by the striking workers, such as:
- Slowdown strikes: A strike in which workers remain on the job, but do not perform their ordinary job duties, resulting in slowing or stopping of the employer’s business.
- Sit-down strikes: A strike in which workers occupy the employer’s facility and prevent others from entering.
- Intermittent strikes: Strikes that only last a short time, but are repeated frequently, allowing the striking workers to continue to receive paychecks while ostensibly on strike.
- Violence or other unlawful or disruptive activity: An otherwise lawful strike can become unlawful, losing its NLRA protection, when striking workers turn to violence or other forms of mass disruption.
Has the Union Agreed Not to Strike?
One of the primary purposes of labor unions is to engage in collective bargaining with the employer on behalf of the workers. This allows the workers to present a unified front to management, which they hope will lead to better contractual terms. Contracts between unions and management are known as collective bargaining agreements (CBAs).
Both sides can ask for concessions from the other. In exchange for concessions to the workers, management may ask the union to agree that, during the term of the CBA, the workers will not go on strike. This is known as a “no-strike” clause. If workers are subject to a CBA with a no-strike clause, any strike will not be protected by the NLRA, regardless of whether it might otherwise be lawful.
Statutes Prohibiting Strikes in Certain Industries
Some state and federal laws either bar workers in certain industries from striking, or significantly limit their right to go on strike.
The Railway Labor Act (RLA), for example, applies to workers in the railroad and airline industries. Congress first passed this law in 1926, and has amended it several times.
The statute makes a distinction between “major” disputes, which may arise while negotiating a CBA; and “minor” disputes, which involve disagreements about existing CBAs.
Workers may go on strike because of a major dispute, but only after they have gone through a lengthy process of negotiation and mediation with management. For minor disputes, workers must use mediation procedures established by the statute.
Federal courts have authority to stop a union from striking, which essentially orders the workers to go back to work.
Strikes by Public Employees
Government employees at the local, state, and federal level may be limited in their right to go on strike, or barred from going on strike altogether. State laws prohibiting strikes by public employees often apply to workers whose jobs are deemed too essential to risk any work stoppage.
Police officers, firefighters, and paramedics are prohibited from striking in most jurisdictions in the U.S. Many states also place restrictions on strikes by public school teachers and other government employees.
New York state has one of the strictest laws in the country. It prohibits strikes by all public employees at the local and state level, except those covered by laws like the RLA. The state enacted the statute, commonly known as the Taylor Law, in 1967 after a series of strikes by transit workers.
The law establishes dispute resolution procedures for public employee unions and government employers, which includes mediation and binding arbitration. Work stoppages may result in monetary fines, or even jail time.
Contact an Attorney
If you're an employer concerned that your employees are conducting an illegal work stoppage, or if you're a worker who's contemplating a strike, slowdown, or walkout, it might be worthwhile to speak to a labor lawyer in your area before taking action.