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Labor Law by David E. Strecker

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133
© 2011 by Taylor & Francis Group, LLC
Chapter 9
Strikes and Lockouts
Strikes
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 unions 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 specically banned by the collective bargaining
agreement.
When a contract containing a no-strike clause is in eect.
During the term of a valid contract extension.
Striking without giving sucient notice pursuant to the terms of a strike
notication agreement.
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 modication—
(1) serves a written notice upon the other party to the contract of
the proposed termination or modication 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 modication;
(2) oers to meet and confer with the other party for the purpose
of negotiating a new contract or a contract containing the proposed
modications;
(3) noties the Federal Mediation and Conciliation Service within
thirty days after such notice of the existence of a dispute, and simul-
taneously therewith noties 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
time; and
(4) continues in full force and eect, 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 certica-
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 modication of the terms and conditions contained in a contract
for a xed period, if such modication is to become eective before
such terms and conditions can be reopened under the provisions of

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