Strikes and Picketing

Employee Strikes and Picketing

Employee Rights to Strike and Picket: The NLRA not only guarantees the right of employees to strike, but also places limitations and qualifications on how employees exercise that right. For example, restrictions exist against “secondary strikes” and strikes against health care institutions. The lawfulness of a strike may depend on the object or purpose of the strike, its timing or the conduct of the strikers. The object(s) of a strike and whether they are lawful are matters not always easy to determine. The status is critical to both striking employees and employers facing a strike because it determines rights to reinstatement and back pay. Strikes for a lawful object fall into two classes:

Economic
Unfair labor practices

Both classes of strikers retain employee status, but unfair labor practice strikers have greater rights of reinstatement to their jobs.

Strikes

Unfair Labor Practice Strike Defined: Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. They cannot be discharged or permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work must be discharged.

An economic striker can become an unfair labor practice striker during the course of an economic strike if the employer commits an unfair labor practice, such as failing to bargain in good faith. If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers back pay starting at the time they should have been reinstated.

Unlawful Strike in Violation of No-Strike Provision: A strike that violates a no-strike provision of a contract is not protected by the NLRA, and the striking employees can be discharged or otherwise disciplined unless the strike is called to protest certain kinds of unfair labor practices committed by the employer.

A strike to protest conditions abnormally dangerous to health has been held not to violate a no-strike provision. A contractual no-strike, no-picketing clause has been held not to prevent an informational picket line at a shareholders’ meeting held at a hotel two months prior to the expiration of its contract to protest the slow pace of negotiations. The contract declared the intention of the company and union to prevent any suspension of work due to labor disputes.

The union agreed that it would not call, participate in or sanction any strike, boycott, picketing, work stoppage or slow-down whatsoever. The contract further specified that employees violating this provision are subject to immediate discharge at the discretion of the employer with no recourse to the grievance procedure.

The NLRB ruled that the purpose was to prevent any work suspension due to labor disputes during the term of agreement. The ban on picketing was limited to that causing a suspension of work. The picketing at the shareholders’ meeting could not reasonably have been expected to lead to a work suspension.

The NLRB will not find a waiver of statutory rights enforceable, such as the right to picket, unless the waiver is “clear and unmistakable.” Section 8(d) provides steps that must be taken to terminate an existing contract. If these requirements are not met, a strike to terminate or change a contract is unlawful and participating strikers lose their status as employees. If the strike was caused by the unfair labor practice of the employer, the strikers are classified as unfair labor practice strikers and their status is not affected by failure to follow the required procedure.

Strikes Unlawful Because of Purpose: A strike may be unlawful because an object or purpose of the strike is unlawful. A strike in support of a union unfair labor practice or one that would cause an employer to commit an unfair labor practice may be a strike for an unlawful object. For example, it is an unfair labor practice for an employer to discharge an employee for failing to make certain lawful payments to the union when no union-security agreement is in effect.

A strike to compel an employer to do this would be a strike for an unlawful object and, therefore, an unlawful strike. Section 8(b)(4) of the NLRA prohibits strikes for certain objects even though they are not necessarily unlawful if achieved by other means.

An example of this would be a strike to compel Employer A to cease doing business with Employer B. It is not unlawful for Employer A voluntarily to stop doing business with Employer B, and it is not unlawful for a union merely to request that it do so. It is unlawful for the union to strike with an object of forcing the employer to do so. Employees who participate in an unlawful strike may be discharged and are not entitled to reinstatement.

Misconduct of Strikers: Strikers who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and unfair labor practice strikers. Serious misconduct includes, among other actions, violence and threats of violence. Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement include the following:

Physically blocking people from entering or leaving a struck plant
Threatening violence against non-striking employees
Attacking management representatives

The U.S. Supreme Court ruled that a “sitdown” strike, when employees stay in the plant and refuse to work, is not protected by the NLRA — it deprives the owner of his/her property.

Picketing

The Right to Picket: As with the right to strike, picketing can be prohibited because of its object, timing or misconduct on the picket line. Section 8(b)(7) declares it to be an unfair labor practice for a union to picket for certain objects whether the picketing accompanies a strike or not.

Union Picketing on Private Property: In December 2012, the California Supreme Court decided an important case relating to union picketing on private property. In a 6-1 vote, the state Supreme Court ruled that “the state’s interest in promoting collective bargaining to resolve labor disputes” allows labor unions the right to picket on a privately owned entrance. In this case, Ralphs argued that its entrance was privately owned and that the company could regulate speech activities at the entrance. The state Supreme Court first examined whether the California Constitution’s free speech provisions protected the picketers.

On this point, the Court agreed with Ralphs, ruling that the privately owned entrance area was not a public forum: “For this reason, a union’s picketing activities in such a location do not have state constitutional protection.” Despite the fact that the entrance was private property, the court went on to rule that the union had the right to picket there under a California statute known as the Moscone Act.

The Moscone Act was passed in 1975 “to promote the rights of workers to engage in concerted activities for the purpose of collective bargaining, picketing or protection and to prevent the evils which frequently occur when courts interfere with the normal process of dispute resolution between employers and recognized employee organizations.” Although other conduct may be limited on the private property, such as a protest or signature gathering, unions have special protections. “Certain activities undertaken during a labor dispute are legal and cannot be enjoined,” the court stated.

These activities include peaceful picketing on private property. Employers can still seek an injunction under the Labor Code if unlawful activity, such as violence or blocking customers’ ability to enter or exit store property, occurs. But obtaining an injunction is not an easy task. Labor Code section 11381.1 was enacted in 1999 and added requirements that businesses must meet to obtain an injunction in labor disputes.

Although completely independent from the Moscone Act, the statute nonetheless restricts the court’s authority from issuing injunctions in such disputes. Witness testimony in court is required and the testimony must show that unlawful acts have been threatened and will be committed unless restrained and that substantial and irreparable injury will occur. A court order can only be issued if it can be shown that public safety officers who are supposed to protect the property are unable or unwilling to provide adequate protection.

These are not easy hurdles to jump. The Ralphs decision has seen some criticism: The court’s apparent willingness to protect one type of speech (labor) over another (non-labor) is one of many concerns with the decision. However, in 2013, the U.S. Supreme Court denied review of the California Supreme Court’s decision.