What if I Want to Work During a Strike? 

In many states, strikes by public-sector employees are illegal. If that is true in your state, then you may have to work during a strike to avoid possible penalties for violating the law. However, many strikes under the NLRA, which applies to private-sector employees, are legal.

NOTE: Charter school employees may be classified differently depending on whether they are employed by a charter school or an independent management company. The law and protected rights may differ accordingly. Please read About Your Legal Rights: Charter School Employees for an explanation of the differences between public-sector and private-sector charter school employees.

If you want to work during a strike, you must confirm you are not a union member to avoid union discipline. Many courts hold that unions have the power to discipline their members for crossing a picket line. Such discipline can include imposing a significant fine and that the union can collect by suing the employee in state court. To avoid such consequences, you should not cross the picket line while remaining a union member. If a strike is illegal, however, the courts probably will rule that the union cannot lawfully fine members who obey the law and work.

Should you work during the strike? This is a personal decision and the Foundation takes no position on it. Whether you have a right to strike depends upon your state’s law, if you are considered a public-sector employee, or upon the National Labor Relations Act (“NLRA”), if you are considered a private-sector employee. If your employer operates during a strike, you must decide what to do based upon your own needs and the law. Do not let anyone force you one way or the other. Contact a Foundation staff attorney at (800) 336-3600 or by email or click here to fill out a legal aid request form, if you need assistance in determining whether a particular strike is legal.

Can the union fine you if you work during the strike? This depends on state law or whether you are covered under the NLRA. If your state law permits charter school employees to legally strike or you are covered by the NLRA, then the union may lawfully fine you for returning to work during a strike before resigning from union membership. Union members are bound by their union’s constitution and bylaws. In those documents, most unions provide that members who work during a lawfully-called strike can be fined.

However, if you are considered a public-sector employee due to your charter employment, and your state law makes public-sector employee strikes illegal, then in the event you fail to resign union membership before returning to work during an illegal strike, a court most likely will not choose to enforce the relevant penalty provision(s) of your union's constitution and bylaws.

Should you resign from union membership if you work during a strike? Yes. Nonmembers are not subject to a union's constitution and bylaws. Nonmembers cannot be fined or disciplined for working during a strike. If you have not yet crossed the picket line and desire to otherwise avoid all fines, then do not cross the picket line until after midnight of the day you mailed your resignation letter to the union via certified mail, return receipt. For more details on resigning union membership and samples of resignation letters, click here. Unions cannot lawfully discipline you for post-resignation conduct once they receive notice of your membership resignation. Attempts to bring internal union charges against you for post-resignation conduct will be unsuccessful. If strikes by charter school employees who are considered public-sector employees are illegal in your state, you may not have to resign to avoid union fines for working. However, resignation would strengthen your position that you cannot lawfully be fined.

If you worked during a strike before resigning your union membership, are you protected from all fines? Not when strikes by charter school employees are legal. Under the NLRA, and in those states where public-sector strikes are legal, even if you are now a nonmember, the union can fine you for pre-resignation conduct, but not post-resignation acts. Fines are usually based on the number of days you worked as a member during the strike. The courts generally hold that fines cannot be excessive. “Excessive” is not defined, but arguably, if the union’s fines exceed the amount of money you earned before resigning, it is excessive. If strikes by charter school employees who are considered public-sector employees are illegal in your state, you probably cannot lawfully be fined for working even before you resign.

Can the union constitution prohibit you from resigning during a strike? No. It necessarily follows from the United States Supreme Court’s decision Abood v. Detroit Board of Education, 431 U.S. 209 (1977), that public-sector employees cannot constitutionally be prevented from resigning from a union. The NLRA and some state laws also guarantee the right to resign.

What about the collective bargaining agreement? Doesn't it require you to be a member to keep your job? No. Under Abood, and Communications Workers v. Beck, 487 U.S. 735 (1998), you are not required to be an actual union member to keep your job, regardless of what the collective bargaining agreement, the employer, or the union says. You are only required to do one of two things. One, you must only pay the union dues amount. Two, if you are a nonmember and object to the union using your money for non-collective bargaining purposes and notify the union in writing, then you only must pay the reduced fee reflecting union expenses for collective bargaining, contract administration, and grievance adjustment.

In Right to Work states, and in a few other states, any agreement requiring a public-sector employee to join or pay money to a union is illegal.

If you resign your union membership, what rights will you lose? You will not lose any rights under the collective bargaining agreement, for example, seniority. The union must represent you fairly in bargaining and grievance handling regardless of whether you are a union member. You will lose only those rights that are available to members under the union's constitution, such as voting in union elections, and you may lose the right to vote on the collective bargaining agreement’s ratification. You may also lose your right to continue in any union pension plans that are based on union membership rather than service with your employer as an employee benefit. You will not lose your right to pension plans in which the employer pays all or part of the costs.

If you resign your union membership, can you rejoin the union after the strike is over? That depends upon the union and its constitution and bylaws. The law does not require a union to permit a nonmember who has crossed a picket line to rejoin. Often unions refuse to allow so-called “strikebreakers” to rejoin. There are some instances where unions require strikebreakers to pay large fines to rejoin. You should assume that, if you resign and cross the picket line, you will not be allowed to rejoin the union. However, even if you do not rejoin, the union must continue to represent you fairly in collective bargaining, contract administration, and grievance adjustment. You also have the same rights as union members under the collective bargaining agreement.

How do you resign? Click here for a sample union resignation/objection letter in non-Right to Work states. For a sample resignation letter in Right to Work states or where there is no forced unionism clause in the collective bargaining agreement, click here. You may eventually have to prove when your resignation letter was received. Therefore, it is recommended that you send the letter by certified mail, return receipt; by fax and retain the confirmation slip the facsimile machine produces; or by hand-delivery to a union officer with a friendly witness present.

What rules apply if the union attempts to fine you? Under the law that generally applies to union disciplinary proceedings, you may not be fined or otherwise disciplined as a member, unless you are served with specific written charges, given a reasonable time to prepare your defense, and afforded a full and fair hearing. Within these limitations, a union’s constitution and bylaws determine the rules for disciplinary action.

What should you do if specific charges are served on you by the union, if you resigned before you went back to work? If you have clear proof that you resigned before to returning to work, immediately show the evidence to the union and ask it to dismiss the charges before the hearing. If the union persists under those circumstances, it will violate the law, and you should contact a Foundation staff attorney at (800) 336-3600 or by email or click here to fill out a legal aid request form for advice on how to proceed.

What should you do if specific charges are served on you by the union, if you did not resign before you went back to work? If you went back to work during a strike before resigning, or worked and never resigned, you should attend the union-scheduled hearing and raise any potential defenses. It is also best to exhaust any appeals process available under the union's constitution and bylaws. Possible defenses include that the proposed fines are excessive or you were told that you could not resign during the strike. If your state makes public-sector employee strikes illegal by way of prohibition, and due to your charter school employment you are considered a public-sector employee, then that defense should be raised. To determine possible defenses, it is highly recommended that you contact a Foundation staff attorney at (800) 336-3600 or by email or click here to fill out a legal aid request form, or consult other experienced legal counsel.

How can the union collect its fines if it finds you guilty for working during a strike while still a member? The union cannot have you fired for refusing to pay fines. The union's only recourse is to sue you for the fine in state court. The union may lawfully do this if strikes by charter school employees are legal in your state or you are considered a private-sector employee under the NLRA. In these types of lawsuits, you have the right to raise any defenses brought up in the union's internal proceedings, provided that you exhausted internal union appeals.

What should you do to protect yourself from harassment and violence? Whatever you decide about resigning and working during a strike, you should keep as low a profile as possible. You should also attempt to maintain existing cordial relationships with fellow workers on both sides of the picket line. Avoid the zealots! Should you return to work, keep in close touch with other charter school employees who are working during the strike, providing each other support and sharing information. Also, if you work during a strike, it is recommended that you get an unlisted telephone number; keep a diary of all strike-related threats and incidents of harassment and violence (who, where, what, when, names of witnesses, etc.); and take photographs of your private property, such as home and car, to document any damage if you become a victim of union violence. If you begin to receive harassing phone calls, consider installing Caller-ID on the home phone. You should report all threats and incidents of harassment and violence to your employer and the local police. If you are the victim of union violence, contact a Foundation staff attorney at (800) 336-3600 or by email or click here to fill out a legal aid request form.


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