Refusal to Cross Picket Lines Is Protected for Most Employees

Allen Smith, J.D. By Allen Smith, J.D. April 18, 2016

iStock_000039986334_Small.jpgCrossing or not crossing a picket line can be a highly personal decision for an employee. Crossing the line can result in harassment from picketing co-workers and, in some cases, threats of violence. But honoring the picket line can leave employees feeling vulnerable about financial and job security.

The National Labor Relations Act (NLRA) shields nonunion, nonsupervisory employees’ decision to honor a picket line as protected concerted activity. Any discipline for an employee’s refusal to cross a picket line will be deemed a violation of the NLRA and an unfair labor practice, noted James Hays, an attorney with Sheppard Mullin in New York City.

An employer can, however, expect that its supervisory and management employees, who are not covered by the NLRA, will cross the picket line, and it can take disciplinary action against those who refuse to do so, he added.

“It is very uncommon for supervisors to join a strike—normally they work as replacement workers,” said Phillip Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla., a labor and employee relations consulting firm.


Other employees have the right to refuse to picket, said Alex Stevens, an attorney with Haynes and Boone in Dallas.

If harassment of those crossing a picket line is violent or threatening—which may include threats of personal harm, property damage or some kind of economic harm—an employer can seek an injunction to stop the harassing conduct. The employer also may file unfair labor practice charges with the National Labor Relations Board (NLRB), Stevens noted.

But an unfair labor practice charge would be hard to prove in all likelihood, said Michael Lotito, an attorney with Littler and co-chair of its government affairs branch, the Workplace Policy Institute.

“Yelling insults at nonstrikers or replacements, although harassing, is not sufficiently outrageous to lose the act’s protection,” said Brian Hayes, an attorney with Ogletree Deakins in Washington, D.C., and a former member of the NLRB. “Court intervention is rare.”

“Striking employees can be subject to discipline if they are found to have engaged in picket line misconduct—that discipline could range from a refusal to reinstate the worker following the strike to lesser discipline upon reinstatement,” Sheppard Mullin’s Hays said. “The striker’s action may rise to the level of criminal activity and employers are best advised to refer such activity to the local authorities.”

Hays added that the NLRB recognizes that picket line language may become “salty.” The NLRB will require a higher level of verbal harassment during a strike than an employer typically would tolerate in a normal workplace setting for the conduct to rise to a level warranting discipline.

“Harassment is very common on picket lines and the board gives a lot of leeway for this kind of activity,” Wilson cautioned.

That said, the employer should provide a safe and secure entrance and exit for the nonpicketing employees to gain access to the plant, facility or office, Hays noted.

“In most cases, where an employer believes there could be a strike, employers today will hire an experienced strike security company that will capture unlawful conduct on video to use as evidence of unlawful acts,” noted Peter List, CEO of Kulture, a national labor-employment consultancy based in the Charleston, S.C., area.

Replacing Strikers

While strikers cannot be terminated, they can be permanently or temporarily replaced.

Economic strikers may be permanently replaced. A strike may be economic in nature if it involves fighting for higher wages, better benefits or improved working conditions, List said.

“Permanent replacement feels a whole lot like getting fired,” Wilson said. “You are out of your job until the person who replaced you leaves, which could be years later. At that point, you are called back from a preferential rehire list and offered the job. If you are not able to take the job at that point—again, this could be many years after the strike—then the job can be offered to someone else.”

If the union strikes in response to an unfair labor practice, the employer may replace the striking employees temporarily, but must reinstate the strikers when they unconditionally offer to return to work, Stevens noted. 

“Not surprisingly, whether a strike is an economic strike or an unfair labor practice strike can be a hotly debated issue,” he said.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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