Strikes take two forms: “economic” and “unfair labor practice.” Economic strikes are work stoppages to protest wages, hours, working conditions, or other mandatory subjects of bargaining. By contrast, unfair labor practice strikes are a work stoppage to protest an unfair labor practice committed by an employer.
The right to strike is not limited to employees who are represented by a union. Section 7 of the National Labor Relations Act (NLRA) protects all private-sector workers who engage in lawful concerted activity for the purpose of mutual aid and protection.
Private employers must be cautious to not discipline employees who engage in activity protected by the NLRA. Unions and worker advocates (like worker centers) are likely encouraging—and financially supporting—strikes. And they are looking to trip up unprepared employers that discipline employees for engaging in protected conduct.
Union density peaked at 34.8 percent in 1954. In 1952, there were 470 major strikes (involving 1,000+ workers). More than 2.7 million employees participated in those work stoppages. 30 years later, union density had dropped to 21.6 and there were 62 major strikes. But this time with only 376,000 participants. By 2017, union density fell to 11.9 percent, with only seven major strikes, involving just 25,000 employees.
My how the mighty have fallen.
But, 2018 saw a serge of strike activity. At the forefront were actions by worker centers like the “Fight for $15” walkouts to demand a $15 minimum wage.
Over the past few years, unions have tried to organize employees in historically unrepresented industries like childcare facilities, home healthcare, airports, gas stations, convenience stores, retail stores, on-line media, and tech start-ups. This has resulted in an increased awareness of the labor movement and collective action, like walkouts, handbilling, and strikes, generally.
Employers must anticipate the threat of strikes for the foreseeable future. Non-union employers will likely see more walkouts, for either a few hours or a few days. Unionized employers may see a greater willingness by unions to push negotiations to impasse and an increased threat of strikes. When faced with threatened strike activity, it is best to consult with your labor counsel to develop a lawful strategy to respond to it.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.