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‘Striketober’ Walkoffs and Worker Unrest: Labor Fights Explained

Oct. 26, 2021, 9:30 AM

Labor unrest has commanded a national spotlight this month—earning it the moniker “Striketober”—as a wave of workers have walked off the job in protest, following record-setting levels of resignations across all industries that have left businesses scrambling for workers.

Thousands of workers have gone on strike this month at companies like Deere & Co. and Kellogg Co. More than 30,000 Kaiser Permanente workers have authorized strikes. Workers in one of Hollywood’s most potent unions were set to walk off before they reached a deal to avert the union’s first strike in its 128-year history.

These strikers aren’t just seeking better pay and benefits. Some are fighting what they see as destructive encroachments on their time, such as mandatory overtime and seven-day workweeks.

1. What are strikes?

Simply put, strikes are when workers withdraw their labor to pressure their employers. That type of action is legally distinct from other forms of labor protest, such as picketing, leafleting, or boycotting, that often accompany strikes but don’t necessarily mean work stoppages.

Labor law recognizes two main types of strikes: economic strikes, which focus on obtaining higher wages, better working conditions, or other benefits; and unfair labor practice strikes, which protest an employer’s unlawful conduct.

2. Do workers need to be union members to strike?

No. The National Labor Relations Act, which governs labor-management relations in the private sector, gives workers the right to strike regardless of whether they’re represented by labor organizations.

Forming a union actually can take away workers’ ability to walk off the job because of no-strike clauses that are common to collective bargaining agreements. But those provisions aren’t universal, and unions provide the organization and direction often necessary to initiate and maintain large-scale labor protests.

Striking rights are much narrower in the public sector, with a minority of states granting government workers legal permission to strike. Still, public school teachers have gone on strike, in part due to the protection they enjoy in the court of public opinion.

3. Are there legal limitations on strikes?

Yes. Some limits are procedural, like the requirement that workers at health-care institutions provide at least a 10-day notice before striking. Some limits are more significant and can lead to strikers losing the protection of labor law.

The U.S. Supreme Court nixed “intermittent strikes” with its 1949 ruling in UAW Local 232 v. Wisconsin Employment Relations Board, which held that a series of about 30 work stoppages in a five-month period wasn’t legally protected.

The Trump-era National Labor Relations Board expanded the criteria for what’s considered an unprotected intermittent strike with its 2019 decision in Walmart Stores, which said the retail giant could discipline and fire workers who walked out four times over a 13-month period.

4. Can striking workers lose their jobs?

Provided the strike is legal and workers don’t violate the law while it’s ongoing, strikers have some safeguards against losing their jobs. A worker who takes part in an unfair labor practice strike is entitled to get their job back once the strike ends, even if a company has to fire a replacement worker hired to do their job.

Workers on economic strike can be at risk of being replaced permanently, thanks to the Supreme Court’s 1938 ruling in NLRB v. Mackay Radio & Telegraph. That decision, which held that the company couldn’t discriminate against the leaders of the strike, also said it didn’t have to eject those hired to carry on the business and reinstate the strikers.

Nevertheless, the NLRB has limited employers’ authority to permanently replace strikers depending on management’s motivation. The Obama-era board’s 2016 opinion in American Baptist Homes of the West d/b/a Piedmont Gardens said a retirement home violated the law by permanently replacing dozens of its striking employees because the move constituted unlawful retaliation.

To learn more:

—From Bloomberg Law

U.S. Labor Unions Are Having a Moment, With Covid-19 to Thank (1)

Kaiser Permanente Workers Rebel Against Two-Tier Wage System (1)

Striking John Deere Workers Get Boost From Agriculture Secretary

Walmart In Bounds to Fire Protesting Workers, Labor Board Says

—From Bloomberg News

‘Suicide Shifts,’ 7-Day Weeks Fuel Rare Flare-Up in U.S. Strikes

Deere Workers Strike for First Time Since 1986 for More Pay (3)

Kellogg’s Shares Slip as Cereal-Plant Workers Go on Strike (2)

Hollywood Studios Reach New Labor Agreement, Avoiding Strike (1)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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