Chapter 33., Section 18. Organizing a Strike — Main Section | Community Tool Box

What is a strike?

Why would you want to organize a strike?

• What is a strike?

• Why might workers consider a strike?

• What legal questions should workers consider?

• How do you prepare for a strike?

• How do you organize lawful picketing and communication?

• How do you support workers during a strike?

• How do negotiations continue during a strike?

In 1877, workers on the Baltimore and Ohio Railroad responded to repeated wage reductions by stopping work.

The resulting Great Railroad Strike spread across several states and is often described as the first major nationwide labor strike in the United States.

The conflict also involved violence, government intervention, military force, and substantial loss of life and property.

The history of the strike illustrates both the collective power of workers and the serious risks that can accompany large labor disputes.

Strikes continue to be an important form of worker action, but their legal status, consequences, and procedures depend on the workers involved, the reason for the strike, applicable labor law, collective-bargaining agreements, and the conduct of participants.

What is a strike?

A strike is a coordinated refusal by workers to perform their jobs in connection with a workplace dispute or collective demand.

Workers may strike over issues such as:

• Wages
• Benefits
• Scheduling
• Staffing
• Health and safety
• Working conditions
• Job security
• Collective-bargaining rights
• Alleged unfair labor practices

Strikes are often associated with labor unions, but some workers who are not represented by a union may also have rights to engage in protected concerted activity under applicable labor law.

Not every work stoppage has the same legal protection

In the United States, whether a strike is legally protected can depend on:

• Which workers are involved
• Which labor law applies
• The purpose of the strike
• The timing of the strike
• A collective-bargaining agreement
• Required notice procedures
• Conduct during the strike

Do not assume that a strike is protected simply because workers are acting together.

Workers and organizations considering a strike should obtain current information from their union, labor organization, labor agency, or qualified labor counsel.

Why might workers consider a strike?

Workers may consider a strike when they believe other forms of bargaining or workplace advocacy have not resolved an important dispute.

A strike can:

• Demonstrate that workers consider an issue serious
• Affect an employer's operations
• Create pressure for renewed bargaining
• Draw public attention to workplace concerns
• Strengthen participation and solidarity among workers
• Create an opportunity to negotiate different employment terms

These possible effects are not guaranteed.

A strike can also result in:

• Lost wages
• Loss or interruption of benefits
• Employment consequences
• Replacement of some workers where legally permitted
• Legal disputes
• Financial hardship for workers and families
• Strain within a bargaining unit or organization
• Effects on customers, patients, students, or the broader community

A strike should therefore be considered according to its likely benefits, risks, legal status, worker support, available resources, and alternatives.

What legal questions should workers consider?

Labor law is highly dependent on jurisdiction, industry, worker status, contracts, and the facts of the dispute.

General advocacy guidance cannot determine whether a particular strike will be protected.

Determine which labor law applies

The National Labor Relations Act applies to many private-sector workers, but it does not cover every worker.

Workers who may be governed by different legal systems include:

• Federal employees
• State and local government employees
• Agricultural workers
• Domestic workers
• Independent contractors
• Supervisors
• Railroad and airline employees covered by the Railway Labor Act

State and local public-sector labor laws differ significantly.

Some public employees face restrictions or prohibitions on striking.

Federal employees are prohibited by federal law from participating in a strike against the federal government.

Understand the reason for the strike

Federal labor law distinguishes among different types of strikes.

For covered private-sector workers, an economic strike may involve demands concerning wages, hours, benefits, or other working conditions.

An unfair-labor-practice strike may involve a protest against an employer's alleged unfair labor practice.

These categories can affect reinstatement rights and other legal consequences.

Understand replacement and reinstatement rules

Do not promise workers that participation in a strike automatically guarantees that they will immediately return to the same job afterward.

Under federal law applicable to covered private-sector employees:

• Workers participating in protected unfair-labor-practice strikes generally have stronger reinstatement rights.
• Economic strikers generally remain employees but may, under some circumstances, be permanently replaced.
• Workers participating in an unlawful or unprotected strike may lose reinstatement rights and may face discipline or discharge.

The details can be legally complex.

Review the collective-bargaining agreement

A collective-bargaining agreement may contain:

• No-strike provisions
• Grievance procedures
• Arbitration provisions
• Notice requirements
• Rules governing bargaining during the contract term

A work stoppage that violates an enforceable no-strike obligation may not receive the same legal protection as another strike.

Check notice requirements

Certain strikes may be subject to statutory or contractual notice requirements.

Requirements can differ according to the industry, type of bargaining relationship, and reason for the strike.

Verify all applicable deadlines before setting a strike date.

Conduct matters

Workers may lose legal protection for serious misconduct.

Avoid:

• Violence
• Threats of violence
• Property destruction
• Physically blocking people from entering or leaving a workplace
• Other conduct prohibited by applicable law or court order

Lawful picketing can be protected, but the purpose, location, timing, and conduct of picketing can affect its legal status.

How do you prepare for a strike?

Follow union and organizational procedures

If workers are represented by a union, review:

• The union constitution or bylaws
• Strike-authorization procedures
• Membership-vote requirements
• National, international, or parent-union requirements
• Collective-bargaining obligations
• Applicable labor law

Do not assume that local leadership can independently call a strike.

Make worker participation meaningful

Workers who may lose wages, benefits, or employment opportunities should understand the likely consequences before a strike begins.

Provide clear information about:

• The dispute
• The bargaining history
• The proposed demands
• Legal advice received
• Financial support available
• Possible employment consequences
• How major strike decisions will be made

Avoid pressuring workers to participate through threats, intimidation, or misleading claims about their legal rights.

Establish clear decision-making responsibilities

A strike may require responsibility for:

• Overall coordination
• Bargaining
• Legal issues
• Picketing
• Worker communication
• Public communication
• Financial assistance
• Safety
• Recordkeeping

These responsibilities may be handled by separate committees or by a smaller coordinating group depending on the size of the organization.

What matters is that authority and responsibilities are clear.

Maintain records

Keep accurate records of:

• Membership decisions
• Bargaining proposals
• Communications with the employer
• Legal guidance
• Financial decisions
• Picket schedules
• Significant incidents
• Agreements reached

Protect confidential bargaining, personnel, legal, and personal information appropriately.

Define the bargaining objectives

Be clear about:

• What workers are requesting
• Why those changes are important
• What evidence supports them
• Which issues are priorities
• Where compromise may be possible
• What would constitute an acceptable settlement

Demands may concern wages, staffing, benefits, safety, scheduling, disciplinary procedures, job security, or other employment terms.

Do not automatically include a guarantee that no striking worker can experience any employment consequence unless that guarantee has actually been negotiated and is legally enforceable.

Negotiate before and during a strike

A strike is generally connected to a bargaining dispute, and bargaining may continue before, during, and after a work stoppage.

Negotiators should:

• Understand the bargaining objectives
• Have authority defined by the workers or organization
• Communicate developments accurately
• Consider employer proposals seriously
• Identify areas of possible agreement
• Avoid making commitments beyond their authority

Depending on the dispute, mediation, arbitration, or another labor-relations process may be available or required.

Use current labor-relations resources rather than relying on an outdated directory or a fixed list of books.

How do you organize lawful picketing?

Picketing is a visible form of communication associated with many strikes, but it is subject to legal limitations.

Before picketing:

• Review applicable labor law
• Review local rules concerning public space
• Review any court orders
• Determine where participants may lawfully stand
• Establish safety procedures
• Train picket captains or coordinators

Focus on safety and legality rather than appearance

The purpose of a picket schedule should be to maintain an orderly, sustainable, and effective presence.

Do not determine staffing simply because a small group will look unimpressive on television.

Do not obstruct access

Participants should not physically prevent workers, customers, vendors, or other authorized people from entering or leaving the site.

Serious misconduct can affect legal protections and create safety risks.

Establish conduct expectations

Expectations may include:

• No violence
• No threats
• No harassment
• No property damage
• No intoxication while participating
• Compliance with lawful safety instructions
• Prompt reporting of significant incidents

Document events responsibly

Organizations may document public strike activity when lawful and useful for:

• Safety
• Incident records
• Legal review
• Accurate public communication

Follow applicable privacy, recording, workplace, and property laws.

Documentation should not be used to intimidate workers who choose not to participate.

Respect workers' choices

Workers may have different legal rights and obligations concerning strike participation.

Do not use threats, coercion, or harassment to make workers join a picket line or punish them for declining.

Communicate with workers throughout the dispute

Workers need accurate and timely information about:

• Bargaining developments
• Changes in proposals
• Strike schedules
• Legal developments
• Financial assistance
• Meetings and votes
• Settlement proposals

Communication methods may include:

• Email
• Text messaging
• Secure messaging platforms
• Member meetings
• Websites
• Printed materials

Consider language access, disability access, privacy, and workers who may not have reliable digital access.

Communicate accurately with the public

A strike may attract public and news-media attention.

Public communication should explain:

• What the dispute concerns
• What workers are requesting
• Relevant bargaining history
• How the dispute may affect the community
• Any significant developments

Avoid treating communication primarily as an effort to portray workers as more sympathetic than the employer.

Correct misinformation when necessary, but distinguish:

• Verified facts
• Bargaining positions
• Allegations
• Predictions
• Opinions

News organizations should be treated as independent sources of public information, not as extensions of the strike organization.

How do you support workers financially?

Workers may lose income during a strike, so financial preparation can be essential.

Depending on resources and applicable rules, support may include:

• A strike fund
• Emergency financial assistance
• Food assistance
• Transportation assistance
• Referrals to community resources
• Information about health coverage
• Information about public benefits for which workers may independently be eligible

Do not guarantee public-benefit eligibility

Eligibility for Medicaid, food assistance, unemployment benefits, or other programs depends on current law and individual circumstances.

Direct workers to current official eligibility information or qualified benefits assistance rather than assuming striking workers will qualify.

Protect sensitive financial information

If a union or organization operates an assistance fund, establish clear procedures for:

• Eligibility
• Applications
• Confidentiality
• Approval
• Recordkeeping
• Financial oversight

Develop a realistic budget

Possible costs may include:

• Legal services
• Communication materials
• Meeting space
• Transportation
• Financial assistance
• Administrative expenses
• Safety supplies
• Other strike-support costs

Do not assume that arrests, bail, injunction litigation, or other conflict-related expenses are inevitable parts of a strike.

What about injunctions and court orders?

Federal law places important limits on federal-court injunctions in labor disputes, but injunction law is complex and includes statutory and judicial exceptions.

State law, collective-bargaining agreements, industry-specific statutes, alleged misconduct, arbitration obligations, and other circumstances may also affect available court remedies.

Do not rely on a general statement that employers “cannot get an injunction” or on a fixed timeline for when a court will hold a hearing.

If an employer, union, agency, or other party seeks a temporary restraining order or injunction:

• Obtain qualified labor counsel promptly
• Preserve relevant documents and evidence
• Follow all court orders
• Inform participants about any restrictions that affect them
• Do not encourage participants to violate an order while challenging it

Reassess the strike as conditions change

During a strike, periodically review:

• Worker support
• Bargaining progress
• Financial sustainability
• Legal developments
• Effects on workers and families
• Effects on the community
• Whether priorities have changed

Continuing a strike simply because it has already begun is not necessarily the best strategy.

Workers may decide to continue, modify, suspend, or end a strike according to their bargaining process and applicable organizational rules.

Settlement and return to work

A settlement should clearly address the issues necessary to end the dispute.

Depending on the circumstances, this may include:

• Wages
• Benefits
• Staffing or scheduling
• Safety provisions
• Contract duration
• Grievance procedures
• Return-to-work procedures
• Reinstatement issues
• Treatment of replacement workers
• Outstanding disciplinary or legal issues

Do not assume that all employment consequences disappear automatically when workers and management reach agreement.

Review settlement language carefully with appropriate union representatives and legal counsel.

Other forms of workplace collective action

Workers have used many forms of collective workplace action throughout labor history.

However, tactics should not be presented as interchangeable or automatically protected.

Sit-down strikes

A sit-down strike in which employees occupy the employer's workplace while refusing to work is not protected under current federal labor law applicable to covered private-sector employees.

It should not be recommended as a routine alternative to a conventional strike.

Partial, intermittent, or slowdown activity

Certain partial strikes, slowdowns, and intermittent work stoppages may not receive protection under federal labor law.

Workers should obtain current labor-law advice before considering such tactics.

Coordinated sick leave

Workers should not be advised to falsely report illness or misuse sick leave as a substitute for a legally prohibited strike.

Such conduct may violate employment policies, collective-bargaining agreements, public-sector labor laws, or other requirements.

The legal consequences depend on the workers and jurisdiction involved.

Other concerted activity

Depending on the workplace and applicable law, workers may have other lawful ways to act together regarding employment conditions.

These may include:

• Group complaints
• Petitions
• Workplace meetings
• Grievances
• Public testimony
• Protected picketing
• Regulatory complaints
• Other protected concerted activity

Determine the legal status of a particular tactic before recommending it.

In Summary

A strike is a coordinated work stoppage used by workers in connection with workplace demands or disputes.

Strikes can significantly affect bargaining, but they can also create serious legal, employment, financial, and community consequences.

The legal right to strike is not identical for every worker.

Determine which labor law applies, review collective-bargaining obligations, check required notice procedures, and obtain qualified guidance before beginning a strike.

Do not promise workers that participation automatically protects them from replacement, discipline, or other employment consequences.

Under federal law applicable to many private-sector workers, economic strikers and unfair-labor-practice strikers can have different reinstatement rights.

Public-sector, railroad, airline, agricultural, domestic, supervisory, independent-contractor, and other workers may be governed by different rules.

Establish clear objectives and decision-making procedures before a work stoppage begins.

Make sure workers understand the dispute, the risks, the available financial support, and how important decisions will be made.

Continue bargaining when appropriate and consider mediation or other dispute-resolution processes when available.

If picketing occurs, keep it peaceful, lawful, safe, and free from threats, violence, property damage, or obstruction.

Communicate accurately with workers and the public.

Plan for the financial impact on workers and families and provide benefits information based on current eligibility rules.

Obtain legal counsel promptly if an injunction, temporary restraining order, or other court process arises.

Do not recommend sit-down strikes, slowdowns, intermittent strikes, or coordinated misuse of sick leave without understanding their legal status.

Reassess the strike as bargaining, worker support, finances, and legal conditions change.

Finally, a strike should not be framed simply as a way to “force” an employer to surrender or to “bring the opposition to its senses.”

It is a serious form of collective workplace action whose purpose is to advance workers' employment interests through lawful collective pressure and bargaining.