Strikers who engage in serious misconduct during a strike may be refused reinstatement to their former jobs.
After a union is certified as the employees' exclusive representative, it bargains with the employer on behalf of every employee in the bargaining unit. The objective is to produce a contract that establishes the wages and terms and conditions of employment that will apply to all unit members. The contract (also referred to as the collective bargaining agreement), once signed, binds the union, the unit members, and the employer to its terms.
Neither party may unilaterally terminate or modify a contract, once it is in effect, without the other party's consent, unless the party that desires termination or modification first takes the following steps:
The party must notify the other party in writing about its proposed contract termination or modification 60 days before the date on which the contract expires. If the contract is not scheduled to expire on any particular date, notice in writing must be served 60 days before the time the changes are proposed to take effect.
The party must offer to meet and confer with the other party to negotiate a new agreement.
The party must inform the Federal Mediation and Conciliation Service and any corresponding state agency of the existence of a dispute if no new agreement has been reached within 30 days. Said party must also notify at the same time any state mediation or conciliation agency in the state where the dispute occurred.
The party must continue to honor all terms and conditions of the existing contract until 60 days after giving notice to the other party or until the date of the contract's expiration, whichever is later.
It is an unfair labor practice for either employers90 or unions91 to fail to meet these requirements for terminating or modifying an existing contract. If these requirements are not met, a strike to effect contract change is unlawful, and participating strikers will lose their status as employees. However, if the strike was sparked by an unfair labor practice committed by the employer, it is classified as an "unfair labor practice strike," and the employees' status is unaffected by their union's failure to follow the four requirements outlined above.
The Right to Strike
If the employer and union cannot arrive at a new agreement and the current contract expires, either party is free to use economic action in support of its bargaining position as follows:
Employers may facilitate the hiring of workers to replace striking union members by assuring replacement workers that they will not be terminated when the strike is settled. Workers given such assurances are commonly referred to as "permanent replacements." In an economic strike, an employer need not displace permanent replacements for strikers who make an unconditional offer to return to work.92 Economic strikers who have been permanently replaced generally do not lose their status as statutory employees: The employer must put them on a "preferential hiring" list and offer to reinstate them if and when any job for which they are qualified becomes available.93
The NLRB has determined that strikers' rights to reinstatement indefinitely continue "to exist so long as the striker ha[s] not abandoned the employ of [the employer] for other substantial and equivalent employment."94 However, if a strike is the result of employer unfair labor practices or only temporary replacements have been hired, the employer must reinstate strikers who unconditionally offer to return to work, even if reinstating them would displace the replacements.95
Strikers who engage in serious misconduct during a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and strikers who are protesting an employer's unfair labor practice. Serious strike misconduct has been held by the courts and the NLRB to include, among other things, violence and threats of violence. Strikers engaging in the following activities may also cause them to forfeit their right of reinstatement:
attacking management representatives;
physically blocking persons from entering or leaving the workplace;
throwing nails or tacks under automobiles or throwing objects at non-striking employees; and
threatening violence against non-striking employees.
As with the right to strike, picketing is also subject to limitations and qualifications. Picketing may be prohibited due to picketers' unlawful objective or misconduct on the picket line.