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Viewpoint: An employer’s rights when faced with a strike

Current laws guarantee the right to strike, but there are limits that can be imposed by courts

While the law guarantees the right of employees to strike, the law also places limitations and qualifications on the exercise of that right. (Photo: Jim Allen/FreightWaves)

Employers faced with a strike or a potential strike often wonder whether they can seek injunctive relief in federal or state court. This Legal Comment explores those options and discusses an example from Alabama where a state court provided necessary relief.

Background

The difficulties and shortages in supplies and labor created by the pandemic have resulted in an increase in strikes and possible strikes across the country.  Some employees faced difficulty during the pandemic and became frustrated by what they allege is unfair treatment. This perception and related developments have led to a time of more frequent and widespread strike activity.  Employers faced with a strike, or a possible strike, may seek to determine their legal options to prevent or mitigate the effects of a strike, including injunctive relief.

Federal court

Federal law prohibits courts from enjoining (stopping) employees’ rights to lawfully strike. However, courts may enjoin a strike if the strike conduct is unlawful. Whether the strike conduct is unlawful is depending on the facts of the labor dispute.

Under federal law, courts are prohibited from enjoining the following: (i) striking or refusing to work in protest; (ii) becoming a union member; (iii) paying or withholding unemployment benefits, insurance, money, or things of value to a person participating in a labor dispute; (iv) providing legal assistance to those involved in a labor dispute; (v) picketing or other public displays of support for or opposition to labor practice; (vi) peacefully assembling in public or private; and (vii) agreeing to or urging others to engage in or refrain from any of these activities. 

In order to enjoin a strike under federal law, there are rigid procedural requirements that must be met. The lawfulness of a strike may depend on the object, or purpose, of the strike, its timing, or the conduct of the strikers. A strike may be unlawful if it has an unlawful objective or if unlawful means are employed. Unlawful objectives include inducing or engaging in a strike for secondary purposes, striking for jurisdictional or work-assignment purposes, and striking for recognition of a union as bargaining agent under certain conditions. Unlawful means include sit-down strikes, minority strikes, partial strikes, work slowdowns, and picket line misconduct or violence, among others. Courts may also enjoin strikes that are in contravention of a no-strike agreement, or in some circumstances work stoppages over disputes subject to a grievance and arbitration procedure in a collective bargaining agreement.

When an employer seeks relief in federal court prohibiting any of the above labor activities, the employer must show why the conduct at issue should be enjoined. A court can issue an injunction only where it finds: (i) the unlawful acts will continue unless restrained; (ii) substantial and irreparable injury will occur if the action is not enjoined; (iii) the balance of hardships between the parties favors the injunction; (iv) there is no adequate remedy at law; and (v) public officers are unable to furnish adequate protection to protect complainant’s property. 


State court

While issues dealing with strikes generally fall under the federal government’s jurisdiction, employers may also have the option to seek an injunction in state court if there is unlawful conduct during a strike.  In a recent case in Alabama, a state court temporarily prohibited picketing at the employer’s properties due to the violent nature of the labor dispute.  The Alabama state court issued an order temporarily prohibiting all picketing at the employer’s properties based on video showing picketers attacking non-strikers, personal vehicles, property, and uninvolved community members and interfering with company operations. State courts have authority to enjoin strikes when it poses a threat to the public’s health and safety, trespass occurs, there is blocking or attempting to block ingress or egress of vehicles at employer’s facilities, and for property rights and protection.

Takeaway

General, lawful strikes and picketing cannot be stopped because they are protected by the law. However, there may be grounds for injunctive relief in federal or state courts where a strike includes dangerous, violent, or threatening activity. While the law guarantees the right of employees to strike, the law also places limitations and qualifications on the exercise of that right. Employers who anticipate a strike or are concerned with a threat of being involved in a strike should proceed cautiously and on the basis of competent legal advice.

R. Eddie Wayland is a partner with the law firm of King & Ballow.  You may reach Mr. Wayland at (615) 726-5430 or at [email protected]  The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.