What happens when a union goes on strike?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Employees have the right to strike to gain better wages, benefits, or working conditions. There are protections for striking workers, but only for lawful strikes. A lawful strike is one that is for work-related conditions or issues: wages, benefits, time off, safety practices, working conditions, and the like. Strikes for non-workplace or job reasons—for example, to protest a company executive or owner who engaged in sexual abuse of non-employees—would not be protected. 

Also, a strike is a concerted or collective or group action by employees—if you happen to walk off your job to protest low wages but colleagues don’t, that’s not a strike. It is you abandoning (and presumably therefore losing) your job. An unlawful strike deprives workers of the protections that they would otherwise have under the National Labor Relations Act, which is enforced by the National Labor Relations Board

It would also be an unlawful strike if the union contract includes a “no strike” clause prohibiting strikes during the term or duration of the contract (i.e., you can only strike when the contract expires), but the union goes out on strike while the contract is still in effective. 

If union workers go out on strike without authorization from its leadership– called a wildcat strike, its striking workers don’t get paid. Worse—from the workers’ point of view—workers engaged in a wildcat strike can be fired, since they lack the protection afforded lawful strikes. 

If the strike is lawful, then you can’t be fired for striking, and when the strike is resolved, you would still have your job. If you are fired or terminated illegally, your employer can be liable for (1) some or all of back pay (money unpaid from when you were unlawfully fired to the earlier of when the case is heard or when you found a new job), (2) front pay (wages for going forward for a reasonable time until the illegally fired worker is re-employed), (3) reinstatement (getting the job back), and (4) sometimes other “damages” (additional monetary compensation which may awarded in cases of egregious, or especially blameworthy, employer conduct). 

It is this protection from being fired—from permanently losing your job—that makes strikes possible. It provides a powerful weapon for union workers to force an employer to respond to employee grievances. 

However, that’s effectively the only protection that union workers have while out on strike. For example: their employer does not have to pay them while they are on strike. Also, striking workers are generally not eligible for unemployment, unless the employer did something to deprive them of the opportunity to work (e.g., termination; locked out from the workplace). If you strike, you are not receiving benefits, either, or accruing time for seniority or PTO. You have health insurance, but you are responsible for its full cost (unless the employer, such as in a new contract or otherwise settling the strikes, agrees to retroactively count the time out on strike as time employed for some or all purposes). Striking workers must be able to economically fend for themselves and/or receive help from their union (such as a union strike fund to provide payments to striking members). 

This means that going on strike essentially becomes a game of “chicken” between the union and the employer: which one will “blink” first, because it cannot afford the strike:

  1.  the employer, because it can’t get work done? or
  2.  the workers, because they can’t go without pay?

In this connection, nothing stops your employer from hiring temps or contractors, outsourcing work, and/or redeploying managers or non-striking workers to cover the work going undone due to the strike. This means that an employer may be able to get through a strike, or at least survive several weeks of it. This in turn means that the main weapon of striking workers—protection against being fired—may not be enough, if the employees cannot financially survive a protracted standoff.

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