Making Sure a Strike Centers On Unfair Labor Practices
Positioning a walkout as an unfair labor practice strike is one of the key tasks for any union on the verge of a labor battle. Under the rules of the National Labor Relations Act, and the laws of many states that permit public employee strikes, ULP strikers cannot be permanently replaced.
When the employer hires replacements during a ULP strike, and the union later submits an unconditional offer to return, the employer must reinstate all strikers. The rule holds even if replacements must be dismissed.
Strikers who are denied their jobs can pursue charges at the NLRB seeking reinstatement and back pay. So-called “economic” strikers, on the other hand, can be refused reinstatement until replacements who occupy their positions voluntarily depart or the business is expanded.
Although the NLRB will not make a decision on a strike’s legal status as a ULP strike unless the union has made an unsuccessful offer to return to work, and although the Board’s determination may not be made until months or even years after the strike is over, it behooves the union to look ahead.
If the union lays groundwork that will enable it to prove its strike was either totally or partially caused by the employer’s unfair labor practices, the employer may be motivated to hold back from hiring “permanent” replacements because of the risk of a huge back-pay award.
PREPARING THE SOIL
In some cases the union will not have to look far to find unfair labor practices upon which to frame its strike (see box below). Some employers delight in breaking NLRA bargaining rules: declaring impasse prematurely, for example, or illegally implementing final offers.
Employers often argue that strikes should be classified as economic because union officials took purposeful steps to make them look like ULP strikes. The NLRB often rejects such claims.
In a 2011 decision, Spurlino Materials, the Board said that workers who voted to engage in a ULP strike did so freely although union officials advised them about the advantages of a ULP strike over an economic strike and explained the rules for conducting such a strike.
The board held that such a process did not show the union reps were “coercive,” because to say otherwise “would require employee representatives to be nothing but potted plants.”
Other employers, however, carefully observe the relatively easy-to-satisfy requirements of “good faith” bargaining. In such cases, the union will need to precipitate ULPs. The following tactics often work:
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Pepper the employer with detailed information requests, especially requests seeking sensitive economic or customer data. A failure to respond to an information request or a refusal to provide complete answers can provide a lawful basis for a ULP strike.
For example, if the employer claims it needs concessions “to stay competitive” with other businesses, the union might ask for a detailed calculation of the projected savings, a list of customers so that the union may contact them to determine whether they’re contemplating doing business with others, and a list of customers who canceled business with the employer in recent years.
Conduct an intensive contract campaign including on-site and customer handbilling, parking lot rallies, letters to customers, and regular informational picketing.
When faced with an active campaign, most employers quickly commit ULPs such as illegal surveillance, threats of penalties or actual discipline, restrictions on employee access to the premises, or prohibitions on distribution of union literature. The union can file ULP charges on each of these events and cite them when conducting a strike vote.
INCLUDE ULP IN STRIKE VOTE
Before the members vote to authorize a strike, the union should educate them about the employer’s unfair labor practices, using handbills, newsletters, rallies, and meetings. If the only people aware of the ULPs are the union leadership, the NLRB will not classify the walkout as a ULP strike.
The strike vote itself should directly reference the employer’s violations. For instance, the union might ask members to authorize a strike because “the employer has violated the NLRA by threatening employees who take part in union activities and is refusing to negotiate a fair contract.” The vote can include both the ULP and the economic reasons.
LET THE WORLD KNOW
The union should quickly notify management that the strike is partly or wholly due to unfair labor practices. Letters and emails to the employer should repeatedly refer to the ULPs. Remedies for the ULPs should be included in the union’s bargaining demands and maintained throughout negotiations.
Press releases should detail the employer’s violations. If officers and members give interviews to media, they should emphasize the unfair labor practices.
And most importantly, picket signs should prominently cite the ULPs, making sure to spell out the actual violations. Examples: “On strike against bad-faith bargaining” or “On strike because of discriminatory treatment.”
[Robert Schwartz is a union labor lawyer and the author of Strikes, Picketing, and Inside Campaigns: A Legal Guide for Unions.]