© 2011 by Taylor & Francis Group, LLC
Strikes and Lockouts
Deﬁnition and Legal Basis for a Strike
Basically, a strike is a concerted work stoppage by employees. It is the most dra-
matic, if not the most potent tool in the union’s arsenal of economic weapons. For
hundreds of years, employees have withheld their labor as a way to force the boss
to make concessions.
For employees in the private sector, the right to strike nds its origins in
Section 7 of the National Labor Relations Act. As you may recall, this is the part
of the law that allows employees to act collectively for their mutual aid and pro-
tection. A strike is such a collective action.
When May a Union Lawfully Strike?
As a general rule, the union may strike in three situations:
1. ere is no collective bargaining agreement in place.
2. e collective bargaining agreement has expired.
3. e collective bargaining agreement does not contain a no-strike clause or it
contains an exception to the no-strike clause (such as a reopener or lack of a
ban on sympathy strikes).
When Is a Union Prohibited from Striking?
◾ Wildcat strikes. We have already discussed wildcat strikes in Chapter 5. As
you may recall, these are strikes that are not authorized by the union.
134 ◾ Labor Law: A Basic Guide to the National Labor Relations Act
© 2011 by Taylor & Francis Group, LLC
◾ Sympathy strikes, if specically banned by the collective bargaining
◾ When a contract containing a no-strike clause is in eect.
◾ During the term of a valid contract extension.
◾ Striking without giving sucient notice pursuant to the terms of a strike
◾ In the case where there has been a collective agreement in existence, strik-
ing without having given appropriate notice to the Federal Mediation and
Conciliation Service (FMCS) as required in Section 8 of the Act. e relevant
portion of this section is as follows:
[t]he duty to bargain collectively shall also mean that no party to such
contract shall terminate or modify such contract, unless the party
desiring such termination or modication—
(1) serves a written notice upon the other party to the contract of
the proposed termination or modication sixty days prior to the expira-
tion date thereof, or in the event such contract contains no expiration
date, sixty days prior to the time it is proposed to make such termina-
tion or modication;
(2) oers to meet and confer with the other party for the purpose
of negotiating a new contract or a contract containing the proposed
(3) noties the Federal Mediation and Conciliation Service within
thirty days after such notice of the existence of a dispute, and simul-
taneously therewith noties any State or Territorial agency established
to mediate and conciliate disputes within the State or Territory where
the dispute occurred, provided no agreement has been reached by that
(4) continues in full force and eect, without resorting to strike
or lockout, all the terms and conditions of the existing contract for a
period of sixty days after such notice is given or until the expiration
date of such contract, whichever occurs later:
e duties imposed upon employers, employees, and labor orga-
nizations by paragraphs (2), (3), and (4) [paragraphs (2) to (4) of this
subsection] shall become inapplicable upon an intervening certica-
tion of the Board, under which the labor organization or individual,
which is a party to the contract, has been superseded as or ceased
to be the representative of the employees subject to the provisions of
section 9(a) [section 159(a) of this title], and the duties so imposed
shall not be construed as requiring either party to discuss or agree to
any modication of the terms and conditions contained in a contract
for a xed period, if such modication is to become eective before
such terms and conditions can be reopened under the provisions of