8.4 Unfair labor practices and strikes

Unfair labor practices disrupt the balance between employers and employees. These violations of the National Labor Relations Act can lead to legal action and serious consequences for both parties. Understanding these practices is crucial for maintaining fair workplace relationships.

Strikes are a powerful tool for workers to voice concerns and demand better conditions. However, they come with risks and legal complexities. Knowing the types of strikes, their consequences, and the rights of both employers and employees is essential for navigating labor disputes effectively.

Definition of unfair labor practices

• Unfair labor practices are actions taken by employers or labor organizations that violate the National Labor Relations Act (NLRA)
• These practices interfere with the rights of employees to organize, form unions, and engage in collective bargaining
• Unfair labor practices can lead to complaints being filed with the National Labor Relations Board (NLRB) and potential legal action

Types of unfair labor practices

By employers

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• Interfering with, restraining, or coercing employees in the exercise of their rights under the NLRA
• Dominating or interfering with the formation or administration of a labor organization
• Discriminating against employees to encourage or discourage union membership
• Retaliating against employees for filing charges or testifying under the NLRA
• Refusing to bargain collectively with the representative of its employees

By unions

• Restraining or coercing employees in the exercise of their rights under the NLRA
• Causing or attempting to cause an employer to discriminate against an employee
• Refusing to bargain collectively with an employer
• Engaging in certain types of secondary boycotts
• Requiring excessive or discriminatory membership fees

Consequences of unfair labor practices

For employers

• NLRB may issue a cease and desist order requiring the employer to stop the unfair labor practice
• Employer may be required to reinstate employees with back pay if they were discharged for union activities
• Employer may be ordered to bargain with the union if it has unlawfully refused to do so
• Repeated violations can lead to more severe penalties and court enforcement of NLRB orders

For unions

• NLRB may issue a cease and desist order requiring the union to stop the unfair labor practice
• Union may be required to notify employees of their right to refrain from union activities
• Union may lose its status as the exclusive bargaining representative if it has committed serious unfair labor practices
• Union officials may be banned from serving in leadership roles if they have committed certain unfair labor practices

Remedies for unfair labor practices

Through the NLRB

• Employees, unions, or employers can file charges with the NLRB alleging unfair labor practices
• NLRB will investigate the charges and may issue a complaint if it finds merit to the allegations
• An administrative law judge will conduct a hearing and issue a decision on the complaint
• The NLRB can order remedies such as reinstatement, back pay, and bargaining orders

Through the courts

• Parties can appeal NLRB decisions to the federal courts of appeals
• Courts can enforce NLRB orders or set them aside if they are not supported by substantial evidence
• In some cases, parties can file lawsuits directly in federal court to seek injunctions or damages for unfair labor practices
• Courts can also impose criminal penalties for certain willful violations of the NLRA

Right to strike under the NLRA

• The NLRA protects the right of employees to engage in concerted activities, including strikes, for their mutual aid or protection
• Strikes are a key economic weapon used by unions to pressure employers to agree to their demands in collective bargaining
• Strikes can be called for a variety of reasons, such as protesting unfair labor practices, seeking better wages and benefits, or opposing changes in working conditions
• Employees who engage in protected strikes cannot be discharged or discriminated against for their participation

Types of strikes

Economic strikes

• Economic strikes are called by unions to pressure employers to agree to their economic demands, such as higher wages or better benefits
• Employees who participate in economic strikes can be permanently replaced by their employer, but they are entitled to reinstatement if vacancies occur
• Striking employees retain their status as employees and cannot be discharged for their participation in the strike

Unfair labor practice strikes

• Unfair labor practice strikes are called by unions to protest an employer's unfair labor practices, such as refusing to bargain or discriminating against union members
• Employees who participate in unfair labor practice strikes cannot be permanently replaced and are entitled to reinstatement even if replacements have been hired
• The strike must be called in response to a serious unfair labor practice that is likely to affect the bargaining relationship

Lawful vs unlawful strikes

• Lawful strikes are those that comply with the requirements of the NLRA, such as being called for a legitimate purpose and not violating a no-strike clause in a collective bargaining agreement
• Unlawful strikes are those that violate the NLRA, such as sit-down strikes, partial strikes, or strikes that pose a serious threat to public health or safety
• Employees who engage in unlawful strikes can be discharged and may face other penalties, such as fines or injunctions
• Unions that authorize or encourage unlawful strikes may also face penalties, such as the loss of bargaining rights or damages

Consequences of strikes

For employers

• Strikes can disrupt production and lead to lost profits and customers
• Employers may have to hire replacement workers or transfer work to other facilities
• Prolonged strikes can damage an employer's reputation and relationships with suppliers and customers
• Employers may be required to continue providing certain benefits to striking employees, such as health insurance

For employees

• Striking employees typically do not receive wages during the strike, although unions may provide strike benefits
• Employees who participate in economic strikes may be permanently replaced, although they are entitled to reinstatement if vacancies occur
• Striking employees may face economic hardship and stress, particularly if the strike is prolonged
• Employees who engage in misconduct during a strike, such as violence or property damage, can be discharged and may face criminal charges

Striker replacement

Permanent replacements

• Employers can hire permanent replacements for employees who are engaged in an economic strike
• Permanent replacements are entitled to keep their jobs even after the strike ends, although striking employees are entitled to reinstatement if vacancies occur
• The use of permanent replacements can prolong a strike and make it more difficult for the union to reach an agreement

Temporary replacements

• Employers can hire temporary replacements for employees who are engaged in an unfair labor practice strike
• Temporary replacements must be discharged when the striking employees offer to return to work unconditionally
• The use of temporary replacements can help an employer maintain operations during a strike, but it does not put the same pressure on the union as the use of permanent replacements

Reinstatement rights of strikers

• Employees who engage in an economic strike are entitled to reinstatement if they have not been permanently replaced and they make an unconditional offer to return to work
• Employees who engage in an unfair labor practice strike are entitled to immediate reinstatement even if temporary replacements have been hired
• Employers must reinstate strikers to their former positions or substantially equivalent positions if those positions are no longer available
• Strikers who have been permanently replaced are entitled to reinstatement if vacancies occur in positions for which they are qualified

Picketing and strike misconduct

• Picketing is a common tactic used by unions during a strike to publicize their dispute with the employer and persuade others not to do business with the employer
• Peaceful picketing that does not interfere with the employer's operations or the rights of others is protected by the NLRA
• Picketing that involves violence, threats, or other misconduct can be enjoined by the courts and may result in the discharge of the employees involved
• Striking employees who engage in serious misconduct, such as assaulting replacements or destroying property, can be discharged and may face criminal charges

Lockouts by employers

• A lockout is a refusal by an employer to allow employees to work until they agree to the employer's terms in collective bargaining
• Lockouts are the employer's counterpart to strikes and are generally lawful if they are not motivated by anti-union animus
• Employers can hire temporary replacements during a lockout, but they cannot permanently replace locked-out employees
• Locked-out employees are entitled to reinstatement when the lockout ends, unless they have engaged in strike misconduct or the employer has eliminated their positions for legitimate reasons

Remedies for illegal strikes

Through the NLRB

• The NLRB can seek injunctions in federal court to stop illegal strikes, such as those that violate a no-strike clause or pose a serious threat to public health or safety
• The NLRB can order unions to cease and desist from engaging in illegal strikes and to take affirmative action to end the strike
• The NLRB can order unions to compensate employers for losses caused by illegal strikes, such as the cost of hiring replacements or lost profits

Through the courts

• Employers can sue unions in federal court for damages caused by illegal strikes, such as lost profits or damage to property
• Courts can issue injunctions to stop illegal strikes and order unions to take affirmative action to end the strike
• Unions that violate court orders can be held in contempt and subject to fines or other penalties
• Individual employees who engage in illegal strikes or strike misconduct can also be sued for damages in some cases