Prevention of Strike Action
Whether you have two employees or 22 employees, you are prohibited from interfering with your employees' rights to engage in concerted activity. The National Labor Relations Act, often called the Wagner Act or simply NLRA, protects the rights of both union and nonunion workers. The act gives workers the right to go on strike, an action that can cripple a business of any size. Preventing strike action depends on the effectiveness of your company's labor and employee relations efforts and your ability to implement a strike contingency plan.
Jurisdictional standards for the National Labor Relations Act are different than they are for other federal labor laws, and the NLRA doesn't apply to employers based on the number of workers a company employs. Companies engaged in interstate commerce are subject to the provisions of the act, based on their gross receipts and industry. The law applies to private sector businesses, whether union or nonunion, for-profit or nonprofit, and to labor unions, regardless of whether the company is in a right-to-work state.
Since employees' right to strike is protected by law, once you learn that a strike is inevitable, as a business owner, there's little you can do to prevent an actual strike from happening. Proactive measures and complying with federal labor laws from the moment you open your doors for business can prevent issues that lead to the adversarial labor-management relationships that often occur. Engage in fair employment practices, give workers respect, give them recognition and competitive wages in exchange for their talents and contributions, and resolve workplace issues before they escalate out of control.
During contract negotiations for a labor union contract, when the employer and the labor union cannot agree on economic issues such as wages, benefits, or pension payments, employees can go on an economic strike. A strike based on employees protesting their employers' violation of the NLRA is called an unfair labor practices strike. Both economic strikes and unfair labor practices strikes are lawful under the NLRA. The NLRA's protection of the right to strike doesn't extend to strike misconduct or to strikes for unlawful purposes.
It's critical that employers know the difference between lawful and unlawful strikes, because that can determine the course of action necessary to keep the company operational. When there is the potential that employees could go on strike, a company must have someone responsible for developing a strike contingency plan and for setting the company's priorities in such a plan that will enable the company to meet business demand. For example, if an organization normally produces 100,000 products each week, the company has to decide if it must keep up with that business demand during the strike, or if it can drop its production to 75,000 products a week and still be profitable.
A strike contingency plan includes staffing alternatives, options for using current employees who will not be out on strike, and exploring permanent or temporary replacement workers. Strike contingency plans should also address the logistics of continuing the business operations, despite striking workers. Some employers contract security forces to discourage striking workers from engaging in misconduct, such as blocking the premises to replacement workers.
During an economic strike, employers can hire permanent replacement workers. The company cannot fire the striking workers because they may be entitled to reinstatement upon the strike's end, if there is a position available after permanent replacements have been hired. Businesses with high product demand or complex operations must consider the impact that replacement workers will have on the quality, availability and sustainability of their products or services. When labor and management negotiations seem to be inching towards impasse, employers should be contemplating a strike contingency plan. On the other hand, an unfair labor practices strike can end when the company ceases activities that violate the NLRA, thus making the term of the strike easier to predict. The company can't give replacement workers permanent jobs in such a strike; it must reinstate the workers who went out on strike.
In the event that employees in the health care industry go on strike, the union must provide 10 days' notice if the employer is a hospital or other residential care provider for physical and mental health services. The 10-day notice gives employers time to fully develop a contingency plan. It also gives employers time to determine the consequences of accepting the union proposal or counteroffer and averting strike action.