§14.3 Strikebreakers and Strike Replacements

• Library: Labor and Employment Law: Private Sector (OSBar) (2011 Ed.)

§14.3 STRIKEBREAKERS AND STRIKE REPLACEMENTS

§14.3-1 Rights of Strikers and Strike Replacements

"The term 'strike' includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slow-down or other concerted interruption of operations by employees." 29 USC §142(2) (Labor-Management Relations Act §501(2)).

Strikes may be lawful or unlawful, and a lawful strike may be either an economic strike or an unfair labor practice (ULP) strike. The respective rights of the striker, the striker's replacement, and the employer depend on these distinctions.

A strike may be unlawful and the striker may be unprotected if the strike is:

(1) Called in violation of a valid no-strike clause in a collective bargaining agreement,

(2) In aid of an unlawful object, such as an unlawful secondary boycott or recognition by a minority union,

(3) Begun after failure to give required notice under 29 USC §158(d) (NLRA §8(d)), or

(4) A "wildcat" strike not authorized by the collective bargaining representative.

Unprotected strikes also include sit-down strikes (NLRB v. Fansteel Metallurgical Corp., 306 US 240, 59 S Ct 490, 83 L Ed 627 (1939)), strikes that endanger the employer's plant or equipment by leaving it abandoned (Marshall Car...