The Right to Strike

The National Labor Relations Board distinguishes between "unfair - practice strikers" and "economic strikers," that is, workers involved in a normal contract dispute over wages and other terms of employment. Unfair - practice strikers have a right to reinstatement with back pay "so long as the labor dispute is current.

"Without this protection an employer determined not to deal with a union could readily bring on a strike, declare that the strikers had left his employ, and hire permanent nonunion replacements. In some cases where the union has remained officially on strike for years, and where the employer has eventually been judged guilty of an unfair labor practice, he has been faced with a large bill for back pay to the striking workers.

Economic strikers receive less protection. the employer is entitled to hire temporary strikebreakers to keep production going, even though he intends to take back the strikers after the end of the dispute. Moreover, he may hire a permanent replacement for a striking worker. The employer is not required to take back economic strikers if

(1) they have been permanently replaced, or

(2) the job in question has been eliminated.

They must apply for reinstatement and are treated as new employees or, more correctly, as preferential job applicant. The employer must keep them on a preferential list and notify them of appropriate vacancies as they occur.

A company may, however, impose reasonable rules for example, it can ask people periodically whether they wish to stay on the list. As a practical matter the problem tapers off with time, since workers who consider their chances poor will seek other jobs.

Thus, while workers are normally entitled to strike for economic objectives, they may also lose their jobs in the process. This is a considerable deterrent to strike activity.

Various qualifications have been added to the basic policy protecting the right to strike. Thus, the Taft - Hartley Act amended Section 7 of the National Labor Relations Act to protect the right not to strike. Certain types of strikes notably strikes to short circuit or upset the results of National Labor Relations Board elections were declared unfair labor practices. 

The law also requires written notice by either party of intention to modify or terminate an existing contract at least 60 days prior to the termination date. During this period the party serving notice must inform the appropriate federal and state mediation agencies and must observe all terms and conditions of the existing contract without resort to strike or lockout.

Federal law dominates this field of policy. for interstate industries there can be no state regulation of peaceful strikes over wages, hours, or conditions, whether by legislative or judicial action.

The Supreme Court has ruled that even local utilities are subject to federal policy if interstate commerce is affected. Employment in interstate industries is under state control, and in most states the right to strike is protected either by state statute or common law.