Kaiser, UAW Strikes Show Varied Labor Protest Rights: Explained

Kaiser Permanente workers are mounting a three-day strike, the largest health-care walkout in US history, that may trigger stronger legal protections than those available to autoworkers, screen actors, and Hollywood writers in their labor protests.

The alliance of unions representing the Kaiser workers say they are are opposing unfair labor practices, while the United Auto Workers and the Screen Actors Guild-American Federation of Television and Radio Artists launched strikes for economic reasons, as did the Writers Guild of America, which just settled.

The right to strike is a fundamental tenet of federal labor law. Yet the distinction between the two types of strikes makes a significant difference when it comes to a key protection for workers: whether they’re guaranteed their job back immediately after the strike ends.

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What defines each type of strike?

Workers go on economic strikes to demand that their employers recognize and negotiate with their union, or to force agreement on certain bargaining positions.

In an unfair labor practice strike, however, workers are driven by their employer’s violation of federal labor law. The workers’ motivation can be mixed—both economic and legal—and still be considered an unfair labor practice strike under the National Labor Relations Act.

There are some strikes that aren’t shielded by federal labor law at all. They include wildcat strikes, which are undertaken without approval of union leadership and in violation of agreements not to strike. Labor protests with illegal aims—like striking or picketing one employer to put pressure on another—also lack protections for workers.

How does strike type affect replacements?

Companies can hire temporary replacements for workers who are out on either economic or unfair labor practice strikes.

But once workers on an unfair labor practice strike make an unconditional offer to return to work, employers must reinstate them. The National Labor Relations Board will order reinstatement plus back pay if an employer refuses to bring those workers back.

On the other hand, an employer can permanently replace economic strikers, unless the company is motivated by an independent unlawful purpose like pressuring workers to abandon their union.

Replacements for economic strikers can continue working when the strike ends, while the former strikers would have to wait on a recall list before they can return to work. But deals to resolve strikes often require the discharge of permanent replacements so the union workers can return to their jobs when the stoppage ends.

Regardless of strike type, employers don’t have to reinstate workers who engage in violence or other actions that aren’t protected by the NLRA.

Who classifies the strike?

The Coalition of Kaiser Permanente Unions declared that workers are striking “because of Kaiser’s unfair labor practices and bad faith bargaining.”

But legally speaking, all strikes are considered economic unless the NLRB rules that they’re motivated by unfair labor practices, or that they’re an illegal or unprotected strike.

In practice, the only way the Kaiser union coalition’s declaration of an unfair labor practice strike would be challenged is if the company permanently replaces the striking workers. That action would likely spur an NLRB case over the replacements that would turn on whether the strike was partially motivated by the company’s alleged illegal actions.

But that scenario is unlikely with the Kaiser strike, mainly because it’s planned to last just three days.

Are there hospital-specific strike rules?

Workers at nonprofit hospitals like Kaiser initially lost the right to strike—along with all other protections of federal labor law—when Congress amended the NLRA via the Taft-Hartley Act in 1947.

But such workers regained those labor law rights and protections with the health-care amendments to the NLRA in 1974. As part of those modifications, Congress required unions to provide notice to the hospital and the Federal Mediation and Conciliation Service at least 10 days before a work stoppage.

The Kaiser union coalition submitted its 10-day notice on Sept. 22.

Read more:

Kaiser Workers Launch Largest-Ever US Health Care Strike

Kaiser Permanente Workers Announce Two-Day Strike As Talks Stall

Kaiser Permanente Workers to Hold Strike Authorization Vote

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