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Question: What if I want to work during a strike?

Answer: If you want to work during a strike you must be certain that you are not a union member if you wish to avoid union discipline.

Many courts have held that unions have the power to discipline their members. This discipline can include imposing a significant fine upon and then suing you to enforce the payment of the fine. If you wish to avoid consequences like that, you cannot remain a member of the union and cross the picket line.

A series of questions and answers about a strike that apply to almost every private sector employee covered by the National Labor Relations Act follow.

Should you work during the strike? That is a personal decision and none of the Foundation’s business. Under the National Labor Relations Act you have a right to strike as well as a right not to strike. If the employer continues to operate during the strike, you need to decide what to do based on your own needs. Don’t let anyone coerce you one way or the other.

Can the union fine you if you work during the strike? Probably, if you do not resign from membership before going back to work. As a union member, you are bound by the union’s constitution and bylaws, which in most unions provide that members who work during a lawfully-called strike can be fined. Such fines can be expensive and may be collectable in state court.

Should you resign from membership if you work during the strike? Yes. Nonmembers are not subject to a union’s constitution and bylaws and cannot be fined or otherwise disciplined for working during a strike. If you have not yet crossed the picket line and wish to avoid all fines, do not cross the picket line until after the union receives your resignation,or until the day after your resignation is postmarked if you send it by mail (use certified mail so that you can prove the date of the postmark). Once the union is on notice that you have resigned, it cannot lawfully impose any form of discipline on you for anything you do after you resigned. That does not mean that someone might not try to bring internal union charges against you for post-resignation conduct; it does mean that the union’s attempts to fine you will be unsuccessful.

Can the union constitution prohibit you from resigning during the strike? No. The federal courts are unanimous in holding that union restrictions on the right to resign are unlawful and unenforceable under the National Labor Relations Act.

What about the union shop agreement? Doesn’t it require you to be a member to keep your job? No. Under the National Labor Relations Act, you do not have to be an actual member to keep your job. You need only pay the amount of the union’s dues or, if you notify the union that you object to use of your money for other purposes, that portion of the dues that is used for collective bargaining and contract administration.

Moreover, if you are employed in a Right to Work state, a union shop agreement is unenforcable and you cannot be required to pay anything to the union if you are not a member (unless you are a sailor or work on certain federal installations). Click here to see a list of the Right to Work states.

For an explanation of your rights as an employee in a Right to Work state, click here.

If you worked during the strike before resigning, does resignation protect you from all fines? No. The union can fine a nonmember for pre-resignation conduct, but not for anything done after it receives a resignation. Fines usually are based on the number of days that a member works during a strike. The courts generally hold that a fine cannot be excessive. What is excessive is open to question, but you would have a good argument that the fines are excessive if they exceed the amount earned during the period before you resigned.

If you resign, 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 whether you are a member or not. You will lose any rights under the union’s constitution which are available only to members, such as voting in union elections and on ratification of the collective bargaining agreement. You may also lose your right to continue in any union pension plans, but not pension plans funded partly or completely your employer under the collective bargaining agreement.

If you resign, can you rejoin the union after the strike is over? This depends upon the union and its constitution and bylaws. The union is not required by law to permit you to rejoin. Quite often unions refuse to permit so-called strikebreakers to rejoin. We are aware of situations where unions have required 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, if you do not rejoin, the union still must continue to represent you fairly in collective bargaining and contract administration, and you will have the same rights as members under the collective bargaining agreement.

How do you resign? Click here if you would like to see a sample union resignation letter. You may eventually have to prove when your resignation letter was received, so you should either send it by fax and retain the confirmation slip from the facsimile machine or by certified mail, return receipt requested, or deliver it to the union officer designated in the union’s constitution to receive resignations (for example, the Teamsters constitution designates the Secretary-Treasurer of the local union) by hand with a friendly witness present.

What rules apply if the union attempts to fine you? Under the Labor-Management Reporting and Disclosure Act, which contains a Bill of Rights for union members, you may not be fined or otherwise disciplined unless you have been served with written specific charges, given a reasonable time to prepare your defense, and afforded a full and fair hearing. Within these limitations, the rules with regard to disciplinary action are determined by the constitution and bylaws of each union.

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 prior to going back to work, immediately make such evidence available 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 notify the Foundation immediately so that a Foundation attorney may further advise you 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 the strike before resigning, or worked and never resigned, you should attend and raise any defenses you might have at the hearing scheduled by the union. You should also exhaust any appeals that might be available under the union’s constitution and bylaws. Possible defenses are that the proposed fines are excessive or that you were told that you could not resign during the strike. You should consult an experienced attorney to determine what defenses you might have.

How can the union collect its fines if it finds you guilty for working during the strike while still a member? The union cannot have you fired if you refuse to pay fines. The National Labor Relations Act prohibits discharges for nonpayment of fines and penalties. The union’s only recourse is to sue or the amount of the fine in state court, which it could lawfully do. You would have a right in such a lawsuit to raise any defenses you raised in the union’s internal proceedings, provided that you exhausted your internal union appeals.

What should you do to protect yourself from harassment and violence? Whatever your decision with regard to resigning and working during the strike, you should keep as low a profile as possible and attempt to maintain existing cordial relationships with your fellow workers on both sides of the picket line. Avoid the zealots! Should you return to work, keep in close touch with other employees who are working during the strike and give each other support and share information. Also, if you work during the strike, you should 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, so that you can document any damage should you become a victim of union violence. If you begin to receive harassing phone calls, you should consider installing Caller-ID on your home phone and learn how to use any call-tracing services of your local phone company. You should report all threats and incidents of harassment and violence to your employer and, if threats of or actual violence are involved, the local police. If you are the victim of threatened or actual union violence, please notify the Foundation if you would like to have help.

If you are the victim of union violence and would like to request help from Foundation attorneys, fill out this form.

If you would like to learn more about your rights as a private sector employee, click on the appropriate question below: