Robert M. Schwartz, a Boston-area labor lawyer, is author of several
labor law handbooks including Strikes, Picketing and Inside Campaigns.
Subway restaurant workers at the Oakland airport walked out for a day
in an unfair labor practice strike to protest the firing of a co-worker
for organizing. Workers can’t be legally fired for a ULP strike. Photo:
Marilyn Bechtel/People's World.
and more unions are turning to one-day or other short-term strikes to
add punch to contract campaigns. Walmart, fast food, and other non-union
workers have also used the tactic to demand changes in wages, working
conditions, and safety, and to protest discharges. A short-term strike
sends a powerful message to management, dramatizing workers’ anger and
determination. Workers, both union and non-union, who take part in a
short-term strike have the same legal protections as workers who engage
in open-ended strikes. They cannot legally be disciplined for failing to
give advance notice or failing to call in early the day of the strike
(an exception is the health care industry, where 10 days’ advance notice
is required). Nor can the employer count the days as absences under an
attendance-control program. Once the strike is over, if the union or an
individual offers to return “without conditions,” the employer must
allow the worker to return to his or her original position. A union or a
non-union worker who is illegally discharged or refused reinstatement
can file an unfair labor practice charge at the National Labor Relations
Board. The NLRB can order the employer to reinstate the worker with
back pay—although the legal process can be frustratingly lengthy.
INTERMITTENT STRIKES -
pitfall for union and nonunion workers who engage in short-term strikes
is the poorly understood NLRB intermittent strike doctrine. The
doctrine prohibits union and non-union workers from taking part in a
“series” or “pattern” of short-term strikes for a common goal. Workers
who participate in what the Board calls “intermittent” or “hit and run”
activity lose their NLRA protections and can be fired. Although most
Board decisions on this topic have required three walkouts before
falling under the intermittent label, in some cases the Board has
applied the label after two walkouts. Walmart will probably cite the
intermittent strike doctrine to defend its recent discharges of
short-term strikers. The surest way to avoid classification as an
intermittent strike is to limit the number of short-term walkouts to one
(this does not forfeit the right to later call an open-ended strike). A
union or organizing committee that wants to hold multiple walkouts
should take the following precautions:
* Hold the walkouts for different reasons
* Hold the walkouts weeks or months apart
* Hold the walkouts quickly after a triggering event
* Avoid literature (or emails) referring to a campaign based on strikes.
PERMANENT REPLACEMENT -
threat to short-term strikers, especially if the strike is for more
than a day, is the risk of permanent replacement. A 1938 Supreme Court
ruling (Mackay Radio) allows employers to hire permanent replacements
for workers engaging in an “economic” strike—whether the walkout is one
day or open-ended.
The replacements may be hired before the
strike or while it is in progress. A permanently replaced striker must
wait for vacancies to open up. In most states, however, he or she can
collect unemployment benefits. One way to protect short-term strikers
against permanent replacement is to send the employer an offer-to-return
letter immediately after the strike begins. The letter should state
that the worker or workers will return to work “without conditions” the
following day or soon thereafter. Example:
a.m. October 3, 2013, and an offer to return to work without conditions
at 7:00 a.m. on October 3, 2013 is hereby made on behalf of all persons
in the above-described bargaining unit and all employees who honor the
union picket line.
Under NLRB rules, an employer
served with an unconditional offer to return to work cannot hire
permanent replacements during the remainder of the strike. In an
organized workplace, the union can submit the letter for all its
members. In a non-union workplace each striker must submit an offer. A
second technique that protects strikers against permanent replacement is
to position the walkout as an unfair labor practice strike. Workers who
participate in a ULP strike cannot be permanently replaced. A walkout
qualifies as a ULP strike if its purpose, or one of its purposes, is to
protest an employer violation of the National Labor Relations Act.
Examples include surveillance of concerted activity, threats of
punishment for taking part in organizing activity; or the issuance of
job rules that deter or discourage workers from taking part in protests.
(Note: an employer violation of other employment laws, such as OSHA,
Title VII, or the Fair Labor Standards Act, does not create a basis for a
ULP strike.) The union or the organizing committee should take the
following steps to link the walkout to the ULP violation:
the walkout is preceded by a vote of employees, there should be a
discussion of the ULP at the meeting and a reference to the ULP in the
* Picket signs should refer to the ULP.
Examples: “On strike against illegal threats,” “On strike against
* References to the ULP should be included in all press releases and interviews.
* Descriptions of the ULP should be included in letters seeking support from politicians and clergy.
is important that all strikers understand the ULP strike strategy. If a
reinstatement claim goes to an NLRB hearing, the employer may subpoena
rank-and-file workers in the hope of eliciting testimony that the strike
was called solely to protest low wages or another non-ULP matter.