Am I Allowed to Participate in a Strike?

what makes a strike legal or illegal

Worker strikes have been making headlines in recent months. Some experts have even called this past summer, the “summer of strikes.”

Now we’re into fall and it seems that the “summer of strikes” will continue well into 2024. As of the date of this article, we’ve seen more than 300 strikes in the United States involving some 450,000 workers. That’s up 57% from just two years ago.

It’s not just the increased number of strikes that’s causing headlines, but also the high profile of the organizations that workers are striking against.

For example, the Writers Guild of America went on strike over a labor dispute with the Alliance of Motion Picture and Television Producers. At 23 weeks, this was the longest strike in entertainment history, but yielded big wins for the writers.

UPS workers also held a successful strike this summer that resulted in a new five-year contract with increased pay for part-time and full-time workers along with better schedules. 

Meanwhile, other strikes are ongoing. Amazon delivery drivers and dispatchers are still on strike to address low wages and unsafe working conditions. The United Auto Workers are currently striking against the “Big 3” automakers for better pay and improved working conditions.

And, more than 1,700 nurses at Robert Wood Johnson Hospital in New Jersey are currently striking against the hospital’s high staff-to-patient ratio and the fact that their medical insurance was discontinued, among other grievances.

All this strike activity has prompted our clients to ask questions such as: “Can I participate in a strike?” “What if I’m not in a union?” “Can my employer fire me if I participate in a strike?”

The answers to these questions may surprise you. Let’s get into it.

Can I Participate in a Strike?

what makes a strike legal or illegal

Almost any employee in the United States can participate in a strike. It does not matter if you are in a union or not. You have a right to strike.

The reason why workers have a right to strike comes from the National Labor Relations Act, became law in 1935 during the Eisenhower administration.

Section 7 of the Act states:

“Employees shall have the right. . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The “concerted activities” referenced in Section 7 refers to strikes, work stoppages, or walk outs. Legally speaking, those terms all mean the same thing.

They all involve a stoppage of work by employees to protest employer practices. So, don’t get too caught up in these terms as we’ll use them interchangeably throughout the article.

Section 13 of the Act states:

Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.”

The simple interpretation of this section is that all workers, union and non-union workers alike, have a right to strike. Furthermore, it is unlawful for employers, co-workers, or anyone else to impede workers’ right to strike.

Of course, Section 13 also says “except as specifically provided for herein …” That means certain employees do not have a protected right to strike.

Who Is Prohibited from Striking?

what makes a strike legal or illegal

The National Labor Relations Act was written to protect private sector employees, who were most at risk of being exploited at the time it was passed into law.

However, the law prohibits government employees at the federal, state, and local levels from striking. Likewise, public workers (e.g., public school teachers, firefighters) as well as workers in the agricultural and transportation sectors do not have a right to strike. Members of the military are not permitted to strike either.

That said, 12 states have made it legal for public school teachers (who are employees of local governments) to strike. Those states are:

  • Alaska
  • Vermont
  • Oregon
  • Illinois
  • Pennsylvania
  • Hawaii
  • California
  • Mississippi
  • Louisiana
  • Ohio
  • Montana
  • Oregon

 

What is a Legal Strike vs. an Illegal Strike?

what makes a strike legal or illegal

There are two types of legal strikes:

  • Economic strikes in which striking workers are seeking improvements to pay, benefits, and/or working conditions.
  • Unfair labor practices strikes in which workers strike in solidarity with a co-worker who gets fired for filing a grievance, trying to unionize, or otherwise engaging in union activities protected under the National Labor Relations Act.

Of course, there are times when strikes are illegal or unprotected. For example, a worker’s right to strike isn’t protected if:

  • Their contract specifically prohibits them from striking. However, if the worker strikes due to dangerous or abhorrent working conditions, then they do have a protected right to strike regardless of the contract terms.
  • The reason for the strike itself is not protected. For example, a union cannot go on strike to compel their employer to terminate a co-worker or to prevent the employer from doing business with another company.
  • The worker causes damage to property, threatens violence, commits violent actions, and/or prevents others from entering or leaving the workplace during the strike.
  • The worker decides to slow down work, but not stop working altogether.
  • The worker strikes “intermittently,” which means they stop work or threaten to stop work repeatedly over the span of a relatively short period of time.
  • They attempt a “sit-in.” It’s not legal for workers to occupy the manufacturing plant or place of work and simply refuse to work or block others from getting work done. This action is considered to be theft of the employer’s property and could land the participating workers in jail.

 

Can I Get Fired for Going on Strike?

what makes a strike legal or illegal

Employers may fire employees if they take part in illegal or unprotected strikes as described above.

But, it is illegal for an employer to outright fire anyone who chooses to go on strike for a protected reason. However, there is a loophole that employers may take advantage of.

In 1938, the Supreme Court of the United States made a landmark decision in the case of Labor Board v. Mackay Radio & Telegraph Company. The ruling states that a company can replace a striking worker with someone else to keep the business running.

The company need only guarantee that the striking worker gets preference when any new positions open up after the strike ends. Furthermore, the replacement worker has a right to keep the position they obtained when the original employees were on strike.

So, while a striking worker cannot technically be fired because they are choosing to go on strike, they may end up losing their job anyway because they’ve been replaced. However, it’s important to note that employers may be wary of hiring replacement workers during a labor strike. This is for two reasons.

First, skilled labor is hard to find. For example, it’s no easy task for hospital administrators at Robert Wood Johnson Hospital to quickly hire 1,700 nurses to replace those on strike. Likewise, Chevy can’t quickly and easily replace 500 factory workers who have been specifically trained to build Chevy vehicles.

Secondly, unions will engage in negotiations with employers when workers are on strike. The union leaders will ensure that employers re-hire all the striking workers as part of the agreed upon deal.

Will I Get Paid if I Go on Strike?

what makes a strike legal or illegal

Union workers pay dues to their union. Some of those dues go to a strike fund, which provides workers with an income while on strike. That income may not match their full salary, but it’s something to help keep them afloat.

Non-union workers who go on strike will not get paid, nor will they receive medical benefits while on strike. That’s not something most employees can afford.

That’s why, rather than go on strike, non-union employees will typically look for a new job if they are unsatisfied with their employer. Before you apply for a job, be sure to research the reputation and culture of any company you may want to work for.

Can I Strike as a Single Employee? 

Although unusual, if conducted legally and properly, a walkout or strike by a single worker is protected under The National Labor Relations Act. Walking out due to poor working conditions that other workers also endure adds weight to your actions, even if other workers choose not to join you.

Be cautious however, as a non-union employer may simply terminate you if you decide to strike. Then it’s up to you to take legal action or find another job. We recommend that you speak with a labor attorney before taking any action against your employer.

You Have a Right to Strike 

We’ve seen successful strikes in the past year that are putting more power in the hands of workers. Going on strike is a fundamental right of every worker in this country.

If you’re unhappy with your workplace, know that striking isn’t the only option. You may want to find another job. Contact Empire Resume at 801-690-4085 for a professional resume that will grab the attention of employers and hiring managers.

Maria Gold is a Content Manager/Writer for Empire Resume. She is dedicated to helping educate and motivate people with the latest career articles and job search advice. Her interests range from writing to programming and design. She is also passionate about innovation, entrepreneurship, and technology.

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