Strikers Rights

Your Right To Strike

The U.S. Constitution addresses citizens’ rights to bring grievances against the government in the First Amendment of the Bill of Rights. It states:

“Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This amendment ensures that citizens have the constitutional right to express concerns, seek remedies, and hold the government accountable through peaceful means, such as petitions, protests, or direct communication with public officials.

The Trump administration has taken several actions that significantly undermine the National Labor Relations Board (NLRB), the independent agency responsible for enforcing the NLRA.

Key Actions Undermining the NLRB

Firing NLRB Members:

In January 2025, President Trump dismissed NLRB member Gwynne Wilcox, the first Black woman to serve on the board, and General Counsel Jennifer Abruzzo. Wilcox’s removal was unprecedented and left the NLRB without a quorum, effectively paralyzing its operations. A federal judge ruled her dismissal illegal and ordered her reinstatement, but the administration appealed the decision, and the Supreme Court temporarily blocked the reinstatement.

Executive Orders Limiting Union Rights:

In March 2025, President Trump signed an executive order exempting federal agencies with national security missions—such as the Departments of Defense, Veterans Affairs, and Homeland Security—from federal collective bargaining requirements. This move affects hundreds of thousands of federal workers and has been met with strong opposition from unions.

Dismantling the Federal Mediation and Conciliation Service (FMCS):

The administration has taken steps to dismantle the FMCS, a key agency that assists in resolving labor disputes and contract negotiations. Unions have filed lawsuits challenging these actions, arguing that they violate federal law and infringe upon workers’ rights.

While the Trump administration has not sought to repeal the NLRA, its actions have significantly weakened the enforcement of labor rights by undermining the NLRB and other related agencies. These moves have been met with legal challenges and widespread criticism from labor organizations and advocates for workers’ rights.

Regarding General Strikes,

the NLRA has a few items worth noting for someone interested in participating in a general strike.

Section 7 of the National Labor Relations Act (NLRA) states in part, “Employees shall have the right. . . to engage in other concerted activities for collective bargaining or other mutual aid or protection.” Strikes are included among the concerted activities protected for employees by this section. The U.S. Supreme Court has upheld the right of employees to engage in collective bargaining, including the right to go on strike, regardless of whether they are represented by a union or not. Specifically, in 1962, the Supreme Court in NLRB v. Washington Aluminum upheld the NLRB’s decision that workers in a non-unionized workplace who walked out because of the cold were protected under the NLRA and that the employer could not fire them.

While the right to strike is a fundamental right under the NLRA, there are also many limitations and qualifications on the exercise of that right. The following is a brief outline only. A detailed analysis of the law concerning strikes and its application to all factual situations that can arise in connection with strikes is beyond the scope of this site. Employees and employers who anticipate being involved in strike action should proceed cautiously and based on competent advice.

Lawful and unlawful strikes.

The lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or the conduct of the strikers. The object, or objects, of a strike and whether the objects are lawful are matters that are not always easy to determine. The National Labor Relations Board often decides such issues. The consequences can be severe for both striking employees and struck employers, involving questions of whether employers can lawfully terminate or replace workers, or whether workers have a right to return to their jobs, with reinstatement and monetary relief.

Strikes for a lawful object.

Employees who strike for a lawful object fall into two classes: “unfair labor practice strikers” and “economic strikers.” Both classes continue as employees, but unfair labor practice strikers have greater rights of reinstatement to their jobs.

Unfair labor practice strikers are defined.

Employees who strike to protest an unfair labor practice committed by their employer are referred to as unfair labor practice strikers. Such strikers cannot be discharged or permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs reinstated, even if employees hired to do their work must be discharged.

Economic strikers defined.

Suppose the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions. In that case, the striking employees are referred to as economic strikers. They retain their status as employees and cannot be discharged, but their employer can replace them under certain circumstances.

Suppose the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer. In that case, the Board may award such strikers monetary relief, commencing from the time they should have been reinstated.

Strikes are unlawful because of their purpose.

A strike may be illegal because an object or purpose of the strike is prohibited. A strike in support of an unfair labor practice committed by a union, or one that would cause an employer to commit an unfair labor practice, may be a strike for an unlawful object. For example, it is an unfair labor practice under Section 8(a)(3) of the NLRA for an employer to discharge an employee for failure to make certain lawful payments to the union when there is no union-security agreement in effect. A strike to compel an employer to do this would be a strike for an unlawful object and, therefore, an illegal strike.

Furthermore, Section 8(b)(4) of the Act prohibits strikes for particular objects even though the objects are not necessarily unlawful if achieved by other means. An example of this would be a strike to compel Employer A to cease doing business with Employer B. It is not unlawful for Employer A voluntarily to stop doing business with Employer B, nor is it illegal for a union merely to request that it do so. It is, however, unlawful for the union to strike with the object of forcing the employer to do so. These points will be covered in more detail in the explanation of Section 8(b)(4). In any event, employees who participate in an unlawful strike may be discharged and are not entitled to reinstatement.

Section 8(b)(7) of the Act also restricts picketing to gain recognition for more than 30 days under certain circumstances.

Strikes are unlawful because of timing.

Effect of the no-strike provision in a contract. The Act does not protect a strike that violates a no-strike provision of a contract, and the striking employees can be discharged or otherwise disciplined, unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. It should be noted that not all refusals to work are considered strikes and thus violations of no-strike provisions. A walkout because of conditions abnormally dangerous to health, such as a defective ventilation system in a spray-painting shop, has been held not to violate a no-strike provision.

Strikes at the end of the contract period.

Section 8(d) provides that when either party desires to terminate or change an existing contract, it must comply with certain conditions, including providing written notice to the other party and notifying the Federal Mediation and Conciliation Service and State or Territorial agencies. If these requirements are not met, a strike to terminate or change a contract is unlawful, and participating strikers lose their status as employees of the employer engaged in the labor dispute. Suppose the employer’s unfair labor practice caused the strike. In that case, however, the strikers are classified as unfair labor practice strikers, and their status is not affected by failure to follow the required procedure.

Strikes are unlawful because of the misconduct.

The U.S. Supreme Court has ruled that a “sit-down” strike, in which employees remain in the plant and refuse to work, is not protected by the law. The NLRB has also held that workers who engage in intermittent strikes, or strikes that involve “a plan to strike, return to work, and strike again,” are not protected. However, the NLRB General Counsel is urging the NLRB to reconsider this area of law. The NLRB has also held that the NLRA does not protect strikers who fail to take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work.

Strikers who engage in serious misconduct during a strike may be denied reinstatement to their former positions. This applies to both economic strikers and those engaging in unfair labor practices.

Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement are:

• Strikers physically block persons from entering or leaving a struck plant.
• Strikers are threatening violence against non-striking employees.
• Strikers are attacking management representatives.

Section 8(g)—Striking or Picketing a Health Care Institution Without Notice. Section 8(g) prohibits a labor organization from engaging in a strike, picketing, or other concerted refusal to work at any health care institution without first giving at least 10 days’ notice in writing to the institution and the Federal Mediation and Conciliation Service.

For more information, please see the  Basic Guide to the National Labor Relations Act. For those workers covered by the Railway Labor Act, you may contact the National Mediation Board with questions.

The information provided on this website is for educational and informational purposes only. This information is not intended to be taken as legal, medical, or professional advice. The views expressed are those of the author(s) and do not necessarily reflect those of the company or its affiliates. Visitors are encouraged to conduct further research and consult with relevant professionals.