Ch7. Strikes and Lockouts — Protected Concerted Activity and Dispute Resolution

Overview of Concerted Activity

Concerted Activity:
Action taken by two or more employees — or by one employee
on behalf of others — to improve wages, hours, or conditions.

Protected by: NLRA §7
Administered by: NLRB

Types of employee action:
Strike (work stoppage) · slowdown · informational picketing ·
work-to-rule · concerted refusal to work overtime

Employer response:
Lockout — employer refuses employees access to the workplace

Constitutional basis (US):
First Amendment (speech/assembly) and NLRA provide protections.
No single constitutional provision explicitly guarantees the right to strike,
but NLRA §7 creates a statutory right for private-sector employees.

When a Strike Is Protected

Protected strike requirements:
① Legitimate subject: wages, hours, or terms of employment
   (political strikes or sympathy strikes have limited protection)
② Proper union authorization: majority vote or strike authorization vote
③ No-strike clause: if CBA contains a no-strike clause,
   strike during contract term may be unprotected
④ No violence, sabotage, or sit-in occupation
⑤ Essential services: employees in critical services must
   maintain minimum service levels (hospital emergency care, utilities)

Types of strikes and their protection:
Economic strike: over wages/conditions → employer may hire permanent replacements
ULP strike: provoked by employer's unfair labor practice → strikers have
  stronger reinstatement rights; employer may hire only temporary replacements

Mandatory waiting periods:
NLRA §8(d): 60-day notice required before modifying or terminating a CBA;
  30-day notice to FMCS before striking in healthcare industry.

Types of Strike Action

Full strike: all union members refuse to work
Partial/rolling strike: rotating work stoppages by different units
Intermittent strikes: repeated short stoppages (limited NLRA protection)
Slowdown: intentional reduction in output (not a full strike; unprotected)
Work-to-rule: strict adherence to written rules causes delays (generally protected)
Informational picketing: handbilling and picketing to inform the public

Secondary boycott (hot cargo):
Pressure on a neutral employer to stop doing business with the struck employer.
Generally prohibited under NLRA §8(b)(4) (Taft-Hartley Act).

Sympathy strike:
Refusal by employees of Employer B to cross the picket line of Employer A.
May be protected depending on CBA language and circumstances.

Lockout

Lockout:
Employer closes the workplace and refuses access to employees
as a bargaining tactic or response to a strike.

When lawful:
① Offensive lockout (before strike): permitted after good-faith bargaining
   reaches impasse — US law is more permissive than many other countries.
   (American Ship Building Co. v. NLRB, 1965)
② Defensive lockout (in response to union strike): clearly permitted.

Lockout during a strike:
Employer may continue operations using supervisors and temporary employees.
Employer may NOT permanently replace locked-out employees
while the lockout is in progress (unlike economic strikers).

Effect of lockout:
Employees do not receive regular wages during a lockout.
Unemployment insurance eligibility during lockouts:
varies by state — many states allow benefits during employer-initiated lockouts.

Notice requirement:
No federal WARN Act notice required for a lockout (WARN covers plant closings
and mass layoffs, not temporary work stoppages).

Dispute Resolution Mechanisms

Federal Mediation and Conciliation Service (FMCS):
Independent federal agency; provides voluntary mediation services.
Parties may jointly request a mediator at any time.

Notice obligations:
Parties must notify FMCS 30 days before terminating or modifying a CBA
(60 days for healthcare employers).

Arbitration:
Most CBAs contain a grievance-arbitration clause.
Arbitration awards are binding and enforceable under LMRA §301.
Courts give strong deference to arbitration awards (Steelworkers Trilogy).

National Emergency Disputes (Taft-Hartley §206–210):
President may seek an 80-day injunction ("cooling-off period")
if a strike threatens national health or safety.
FMCS mediates during the 80 days.
If no settlement, employees vote on employer's last offer.
→ Strike resumes if offer is rejected.

Strike Protection — Four Requirements ★★★★★ : Legitimate subject · proper authorization · no CBA no-strike clause violated · no violence or sabotage. All must be satisfied for full NLRA protection. Memory tip: Subject-Auth-Contract-Method

Economic vs. ULP Strike ★★★★★ : Economic strike → employer may permanently replace strikers. ULP strike → employer may only hire temporary replacements; strikers retain reinstatement rights. Memory tip: ULP strike = stronger reinstatement rights

FMCS Notice Window ★★★★☆ : 30 days to FMCS before striking (60 days for healthcare). Failure to give notice may render the strike unprotected. Memory tip: 30 days (60 healthcare) before striking

Practice Quiz

Q. Why does an employer have no obligation to pay wages during a lawful strike?

Under the no-work/no-pay principle, wages are compensation for labor performed. During a strike, employees voluntarily withhold their labor; therefore, no wage obligation arises. Strikers may be eligible for strike benefits from their union, and in some states may qualify for unemployment insurance.

Q. A nurse participates in a strike at a hospital. What special obligations apply?

Healthcare strikes require 10 days’ advance notice to the FMCS under NLRA §8(g). During any strike, the hospital must maintain minimum staffing levels to provide emergency care to patients in immediate danger. Failure to maintain essential services may render those portions of the strike unprotected.