Proper Planning in the Face of a Strike or Walkout

As a young child, I never really knew what my father did for a living. At the dinner table, I constantly heard about “strike” this and “strike” that. I thought he was a baseball umpire or a newspaper editor. Alas, I learned that his blood pressure was unnervingly high because he was constantly dealing with strikes and walkouts at the plant he was managing. Had he not retired, I am sure this past month would have raised his blood pressure sky-high.

October 2021 saw a spate of walkouts and strikes in workforces across the nation, so much so that it earned the name “Strike-tober.” Thousands of employees at large organizations such as John Deere Co. and Kellogg’s all went on strike in October. Other unions have announced plans to strike when the collective bargaining agreement (CBA) expires. The typical cause behind these and numerous other strikes at our nation’s employers – large and small – is wages and benefits. It is likely, however, that adding to the Strike-tober numbers, are strikes related to other non-economic issues, such as hours, leave issues and social causes. This blog is designed to assist all employers in being prepared for a strike, whatever the impetus, before it happens. Without proper preparation, your ability to continue to operate a business during a strike will be severely compromised.

First, a very brief primer on strikes. Strikes are generally permissible and protected by the National Labor Relations Act, regardless of whether the employees are represented by a Union, as long as the strikes are for a lawful object. Employees who strike for a lawful object fall into two classes “economic strikers” and “unfair labor practice strikers.” Both classes continue as employees, but unfair labor practice strikers have greater rights to get their jobs back after the strike ends.

The ability to strike is not unlimited. Of course, union-represented employees typically are subject to a no-strike clause in their CBA and can only walk-out when the contract expires. Strikers who engage in serious misconduct during a strike may be refused reinstatement. Serious misconduct has been held to include, amongst other things:

  • physically blocking persons or vehicles from entering or leaving the premises
  • violence and threats of violence
  • attacking management representatives.

Over the years, I have developed a detailed guide for employers to follow as a checklist for being properly prepared in the event of a strike. The main categories of this checklist address these topics:

  1. Customer-Supplier Relations: Notify customers and vendors about pending or actual strikes.
  2. Plant Security: Notify law enforcement to ensure prompt response in the event of picket line violence, threats of violence or other unlawful conduct.
  3. Strike Replacements: Develop a plan for the hiring of strike replacements and safe entry to the facility.
  4. Operations: Determine the need and feasibility to establish a neutral gate for vendors and suppliers who are not the subject of a strike.
  5. Strike Monitoring: Appoint a “strike coordinator” who will be responsible for coordinating all aspects of strike-related activities and monitoring of picket line activity. Be prepared to seek Court intervention in the event of mass picketing.
  6. Communications: Prepare a letter to striking employees advising them of the employer’s position. Also, prepare a letter to non-striking employees communicating the same.
  7. Legal Considerations: Determine permissible actions/statements concerning communications to employees, hiring strike replacements, visually monitoring of pickets (without unlawful surveillance) and the scope of legally permissible conduct of picketers (speech, actions, signs).

There are numerous scenarios and situations to think about when faced with a strike. The best response is to be prepared so that when a strike occurs, you are ready. We are prepared at White and Williams to assist you in this process.