Part 2 DEALING WITH WALK-OUTS AT NON-UNION PLANTS

The following is Part 2 of a 3 Part Series from my friends at Wimberly, Lawson, Steckel, Schneider & Stine of Atlanta, Ga.

It seems to be a trend not only in the U.S., but around the world, for there to be a flurry of protests and walk-outs. Strike activity in the U.S., for example, is at the highest level in several years, after many years of extremely low levels of such activities. But now we seem to have a similar trend in often spontaneous walk-outs in even non-union plants in the U.S.

First, a brief review of the legal rules. A concerted walk-out, even in a non-union facility, is a protected, concerted activity. Therefore, employees may not be terminated or even disciplined for engaging in such activities. There are three exceptions, however, in special circumstances.

For example, non-union workers, like other workers, cannot engage in what the law calls an "intermittent" strike. There is a general principle that workers must either work or strike, they cannot combine the two. Thus, continuation of the same type of walk-out activity on repeated occasions or working partial days would violate this rule, and be what is called an "unprotected" activity subject to discipline or even discharge. On the other hand, there can be separate strikes or walk-outs over different issues.

The second exception is that workers may not conduct an illegal "sit-in" inside the employer's facility, which is in essence a trespass on the employer's property. Nevertheless, Labor Board rulings allow employees at least a brief opportunity to express their concerns to their employer, and require the employer to give plenty of advance warnings that it will consider a prolonged sit-in to be an illegal violation of the employer's property rights. Obviously, the advice of counsel both in the case of an "intermittent" strike and a "sit-in" are necessary.

Of course, employers can fall back on the general principle that while strikers or those walking out cannot be discharged or discriminated against, they can be permanently replaced. This means that the employer has the right to engage other workers to perform the work of those who are walking out, so that such replacement workers hired on a "permanent" basis need not be "bumped" when those striking or walking out seek to return to their former positions.

There are severe limitations, however, on the employer in the case of a permanent replacement of strikers. First, when a striker or person walking out seeks to return to work, that person, as a general rule, is entitled to fill a position that is vacant

for which the striker is qualified. This means that while a striker or person walking out, who is in essence a striker, cannot "bump" a permanent replacement, but the striker has a right to a vacancy in the plant for which he or she is qualified. There are further limitations on the employer's rights in an "unfair labor practice strike" or walk-out, where employees walk out or strike to protest an employer's unfair labor practices. In this situation, once employees seek to return to work, they are, in fact, entitled to "bump" permanent replacements to their jobs hired after the beginning of the protest of the unfair labor practices.

If you have any further questions, feel free to contact me at [email protected].

Part 3 - Strategy in Dealing coming in next Hi-Way Hi-Lites