What is a strike?
A strike occurs when the members of a union bargaining unit withhold their services from the employer as a group. It is legal for employees to strike either to support their economic demands or to protest unfair labor practices by their employer. The NLRA makes it illegal for an employer to discharge employees for engaging in a legal strike.
Strike by employees usually involves picketing outside the employer’s workplace–often accompanied by the carrying of signs and chanting of slogans or demands–to publicize the labor dispute and pressure the employer to agree to union demands.The principal weapon granted to the unions by the NLRA to back up their right to bargain collectively is the right to strike in support of their bargaining demand.
What about employers? Do they have any weapons to use?
The NLRA provides weapons to employers as well.
First, when the employees are striking in support of their economic demands and not in protest of unfair labor practices, the employer may permanently replace each striking employee. This is not the same as a right to discharge an employee. An employer’s right to permanently replace an employee striking in support of union’s economic demands, referred to as an economic striker, is limited to hiring a replacement for the employee. As long as the replacement stays in the striker’s position, the employer may decline to rehire the striker. However, at the conclusion of the strike and upon receiving notice from the union or the striker that the striker wishes to return to work unconditionally, the employer must place the permanently replaced striker on a preferential hiring list. If the former striker’s last position or a substantially equivalent position becomes vacant, then the employer must offer the vacant job to the former striker before it can fill the job with another applicant.
Another weapon that an employer can use in a labor dispute by a union is known as a lockout.
What is a lockout?
A lockout is where an employer simply refuses to allow its employees to report to work. Under the NLRA, an employer cannot use a lockout to avoid its obligation to bargain in good faith, but it can use this tactic to pressure a union to agree to an employer’s economic demands in negotiations.
Generally, lockouts are not often used by the employer, because they have a negative effect on the business of an employer. However, a lockout can be useful in situations where an employer has a seasonal business.
Example:
An employer is engaged in a vegetable wholesaling business, where the summer and early autumn months are by far its largest business periods due to annual harvest. A union representing the company’s employees, attempting to negotiate a collective bargaining agreement to replace an existing agreement to expire in January, might well agree to extend the existing contract for six months. The union may assume that if no agreement is reached by the end of January, summer and fall would be the ideal timing for a strike, which would impact the business. The employer, however, might decide that if no agreement is reached by the expiration of the old contract in January, it will begin a lockout of the employees immediately. This way the employer can place pressure on the union–its employee members will be deprived of wages during the lockout–while not suffering the damage that a loss of production during its peak business season would produce.
Can employers permanently replace their regular employees during a lockout? No. However, they do have a right under the NLRA to hire temporary replacements, who may work for the employer only for the duration of the lockout. The employer cannot maintain a “permanent lockout” in order to completely rid itself of unionized employees. Lockouts may only persist as long as the employer is continuing to bargain with the union in good faith, and the union is not agreeing to good-faith demands by the employer.