Union Strikes & Employer Lockouts


The threat of a strike is enough to instill terror in unprepared employers. Employers who prepare for strikes, make strike contingency plans, understand when unions can strike, know the different types of strikes that can occur, and employers who are ready to combat a strike should one happen dramatically regain control over their businesses.

Since most collective bargaining agreements have valid grievance and arbitration procedures, unions are only allowed to strike before the contract takes effect (during first contract bargaining) or after the contract expires (during renegotiation bargaining). That’s it. During the life of a collective bargaining agreement, unions cannot strike.

Unions frequently get approval from their members to call a strike before negotiations begin. Austin Legal helps employers make sure they are equally prepared for a strike.

Although unions typically threaten to strike before it occurs and employees discuss union meetings, strike votes, and strike plans before they walk out, employees (who do not work in some areas of the health care field) can go on strike without notice. Because of this, employers must be prepared to keep their businesses running effectively should a strike occur. How will the company not breach its contracts with customers? Who will keep the machines running? How will you will ensure safety inside and outside the facility? These questions and many more are why employers must have a strike plan prepared before starting negotiations.

Employers prepare for strikes by completing a comprehensive Strike Book. After completion, a Strike Book will have every piece of information, direction, and plan contained in one location for top management’s utilization to ensure the company operates without skipping a beat, or more importantly, to ensure the company’s customers do not notice or feel the impact of the strike.

Controlling Strike Damage | Immediately after employees go on strike employers often feel out of control because of the chaos. Employees act like they are at a pep rally – carrying signs soliciting passing cars to honk, picnicking, have their kids nearby, and parading up and down the sidewalk chanting and singing negative messages about their employer. News reporters show up to interview anyone willing to talk and police position themselves within eyesight of the action.

Employers with strike contingency plans are not overwhelmed by the strike revelry occurring outside their front doors. They implement the plan and effectively continue operating their businesses. A major component of the contingency plan is communication with legal counsel during this time. Legal counsel, like Austin Legal, is able to assess the situation and when appropriate obtain a court-issued injunction to limit the number and location of picketers. Legal counsel also works with security companies that ensure replacement workers and management are able to cross the picket line without incident.

Although the beginning of a strike can seem overwhelming, getting Austin Legal involved as soon as possible helps restore normalcy to your business very quickly.

Unfair Labor Practice Strike | An unfair labor practice strike is when employees strike because the employer is doing something that is illegal or is in violation of the collective bargaining agreement. Whether a strike is an unfair labor practice strike is decided by the National Labor Relations Board after a formal hearing. Legal counsel should be involved in representing the employer at formal NLRB hearings. Unions try to get all strikes labeled as unfair labor practice strikes because their members receive certain benefits for engaging in unfair labor practice strikes that they do not receive for engaging in other forms of strikes.

Economic Strike | An economic strike is when employees strike over anything related to their wages or benefits. When employees engage in economic strikes, they can able to be permanently replaced more easily than employees engaged in an unfair labor practice strike. Because of this, unions try to avoid having their members go out on an economic strike. The only way to determine whether employees are engaging in an economic strike or an unfair labor practice strike is by having a formal hearing before the National Labor Relations Board. Austin Legal strongly advises that counsel be involved whenever an employer deals with the NLRB.

Sympathy Strike | A sympathy strike is when union members strike because the same union at a different workplace is on strike. For example, workers who are members of the UAW in Cleveland, Ohio who did not have a labor dispute strike because workers who are members of the UAW in Columbus, Ohio had a labor dispute and were on strike because of that dispute. Worth noting, a general no strike clause in a collective bargaining agreement does not apply to a sympathy strike.

Wildcat Strike | A wildcat strike occurs when employees go on strike in violation of their collective bargaining agreement. For example, employees who strike despite having a valid no-strike / no-lockout clause in their collective bargaining agreement are on a wildcat strike. Wildcat strikes are typically done without the union’s official support or knowledge. With the right contract language, employees who engage in wildcat strikes can be terminated immediately without going through the grievance and arbitration process.

Lock Outs

An employer can lock out employees as a way to encourage the employee’s union to accept the employer’s negotiation proposals. Just like strikes, handbilling, slow downs, and sit-ins are a way for unions to exert economic pressure on employers, lock outs exert economic pressure on union members. In fact, when done properly, employers are able to lock out their own employees and hire replacement workers so that the company continues to operate during the lock out.

Although lock outs are legal, they must be completed with precision. Due to the number of restrictions placed on lock outs, employers who do not consult with legal counsel before locking out their employees are in grave danger of violating the law.

Other Forms of Economic Pressure

In addition to strikes, unions have many other methods of putting economic pressure on employers, such as handbilling, slow downs, and sick outs. Each of these can be performed alone or together depending on the level of pressure the union seeks to place on the employer.

During corporate campaigns, employers can expect several other forms of pressure as well, including: picketing, newspaper advertisements, billboards, public speeches, leafletting, letters to editors, radio commercials, door to door canvassing, and social media campaigns. Unions are extremely creative in their ability to obtain information about companies and distribute their message to the public. Therefore, employers are prudent to involve legal counsel immediately upon thinking that your company may be the target of a union.