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There's been a lot of talk recently about a potential railway workers strike in the US, and Congress stepping in to prevent it. What, specifically, can be made illegal in this context?

A railway worker is probably free to simply say "I am not going to work under these conditions anymore, so I'm not coming in tomorrow", just like any employed person in the USA can. (If they are under contract, they could be sued for breach of contract, but they still can't be compelled legally to come to work, right?) Isn't a strike just multiple employees all exercising their freedom to do just that? Why does a "strike" have to be a formal thing that's actually happening or not; can't any given worker or subset of workers simply decide if they are agreeing to come to work or not?

Summed up, if congress steps in to force a labor agreement to be adopted, can't any number of railway workers still legally tell their employer "I'm not coming in to work tomorrow unless you give me sick leave"? Of course the employer could then say "too bad, you're fired then", and deal with the consequences of having fewer employees.

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    @JoeW Yeah I think I understand the idea behind why the government has a compelling interest to prevent strikes in certain industries compared to others. But this is more about the mechanics of what legally can the government do and what legally a worker can do if the government makes a strike illegal.
    – GendoIkari
    Nov 29, 2022 at 21:33
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    Essentially the law protects workers engaged in legal strikes from being fired by employers while striking, however, it does not do so if the strike is illegal. Thus the employer is not obligated to allow an illegal striker to return to their job when the strike concludes.
    – hszmv
    Nov 29, 2022 at 21:43
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    Is this terminology really just based on the idea that things are either "legally protected" or "illegal"? That seems either ignorant or deliberately deceptive. The laws list activities that are crimes, they do not list things you are allowed do and everything else is illegal. At least not in the USA. "You can be fired for this" is not the same as "illegal". Will the answer turn out to be that these proposed strikes aren't illegal, use of that word was just bs by liars trying to manipulate public opinion?
    – Eric Nolan
    Nov 30, 2022 at 10:17
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    Individual workers refusing to work, in any numbers, is different from a labor union lawfully striking. Nov 30, 2022 at 13:25
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    I think this was a classic example of an XY problem on Stack Exchange. The real problem was that I didn't know about all the legal protections surrounding strikes; or the level to which unions were involved. This led to me asking how a strike could be illegal, thinking about a different and incorrect idea of what a "strike" actually is.
    – GendoIkari
    Dec 1, 2022 at 17:59

6 Answers 6

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It's important to note that the specific case you've mentioned is a bit unusual in regards to what is legal. You're talking about railway workers, and they are covered by a specific law called the Railway Labor Act. ohwilleke touched on this some, but the RLA changes a few things from normal strike rules

Aggregation

Normally, you have one union and one employer involved in any given dispute, but rail carriers operate a complex web of rail lines nationwide. There are 8 rail carriers and a dozen rail unions involved in this rail labor dispute. If even one union goes on strike, all the remaining unions will go on strike in solidarity. In other words, this would potentially be a nationwide shutdown.

Mediation

There's a defined mediation process through the National Mediation Board

Pursuant to the Railway Labor Act, NMB programs provide dispute resolution processes to effectively meet its statutory objectives: avoiding interruption to commerce or to the operation of any carrier; forbidding any limitation upon freedom of association among employees; providing for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; and providing for the prompt and orderly settlement of all disputes growing out of grievances related to the implementation and management of collective bargaining agreements.

Unions can be forced into mediation by the RLA. Under the rules of the RLA, no strikes are legal while mediation is going on. If no agreement can be reached, the NMB releases the two sides and that begins a 30-day cooldown process before any legal strikes can be made, which is what happened in 2022

The National Mediation Board (NMB) confirms that, pursuant to the Railway Labor Act, the National Carriers’ Conference Committee (NCCC) and the twelve unions noted below were released by the NMB from statutory Mediation on June 17, 2022, and a 30-day cooling-off period begins on June 18, 2022.

The Presidential Emergency Board

The next step after that would be a Presidential Emergency Board(PEB). President Biden declared one on the day the NMB cooling off period expired. This also prevents any striking for 60 days

By statute, the Executive Order triggers a “cooling off” period intended to keep the parties working toward a negotiated settlement.

The PEB will work with both sides and present a proposal within 30 days. Unions then have another 30 days to vote on the PEB proposal. As noted previously, all unions must accept the agreement or all unions will go on strike. In this case, some unions rejected the PEB deal and President Biden worked directly on massaging the deal further and unions agreed to a further cooling off period to allow members to vote on it

The president was personally involved in the talks, calling into negotiations convened by Labor Secretary Marty Walsh in Washington around 9 p.m. on Wednesday, and pressing both the carriers and the unions to come to an agreement in phone calls this week. Biden had grown animated in recent days about the lack of scheduling flexibility for workers, expressing a mixture of confusion and anger that management was refusing to budge on that point, according to two people who spoke on the condition of anonymity to share details of private conversations with the president.

At least one union rejected the Biden deal.

Congress can impose its own terms

This is where the article that prompted the question comes in. Because a strike appears imminent, Congress can pass a law imposing terms on both sides (either by creating another cooling off period, or accepting terms that most, but not all, unions have accepted). Congress has done this 18 times

Can you still strike?

You can... but not in any official way (i.e. with a traditional picket line). Many states prevent some important public service unions (like police, firefighters, etc) from striking at all. A common response to this would be a "blue flu" (police officers in the US often wear blue uniforms), or "sick-out", where work is intentionally slowed or abandoned almost entirely in a coordinated effort.

Trying to openly defy the government in striking when none is legal often ends poorly for everyone, as it did for the air traffic controller's union in 1981

In striking, the union violated 5 U.S.C. (Supp. III 1956) 118p (now 5 U.S.C. § 7311), which prohibits strikes by federal government employees. Anthony Skirlick of the Los Angeles Center warned that these “Unrealistic demands in the face of this change is suicide". Despite supporting PATCO's effort in his 1980 campaign, Ronald Reagan declared the PATCO strike a "peril to national safety" and ordered them back to work under the terms of the Taft–Hartley Act. Only 1,300 of the nearly 13,000 controllers returned to work.

And

On August 5, following the PATCO workers' refusal to return to work, the Reagan administration fired the 11,345 striking air traffic controllers who had ignored the order, and banned them from federal service for life.

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    While this is good info, I feel like it misses the crux of my question, which is "what prevents individual workers from just not showing up to work even when a strike is not legally protected?" "Because then you can be fired and replaced." And banned from federal service for life(!).
    – Mazura
    Nov 30, 2022 at 18:02
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    @Mazura Small nitpick... you say it misses the crux of your question but then seem to demonstrate how it actually addresses the crux of your question.
    – Andy
    Nov 30, 2022 at 18:24
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    @Andy I believe that is exactly the point Mazura is making, and they are referring to this comment by the question author.
    – Ian
    Nov 30, 2022 at 19:20
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When you join a union, you delegate authority to enter into contracts binding your individual rights as an ordinary worker to the collective bargaining agreement reached between the union and the employer.

Often, that agreement provides rights that the employee would not ordinarily have (e.g. essentially no unionized workers subject to a collective bargaining agreement can be fired without good cause, which is rare for private sector non-union employees, and almost all of collectively bargaining agreements include a right to be reinstated in your job if you are fired without good cause, something that private sector non-union employees almost never have as a remedy), but the agreement also requires concessions that a non-union employee would otherwise have.

Also, going on strike is not good cause for firing an employee under a collective bargaining agreement and federal labor law if it is a "legal strike."

But, as noted by @hsvmz in another answer, the Railway and Aviation industries are prevented under the Railway Labor Act from "legally" striking under certain conditions, and even then may only strike during contract negations and only after lengthy mediation and negotiation periods.

If an employee went on a strike not authorized by a collective bargaining agreement or just failed to show up to work without good cause, they could be fired permanently.

For example, as noted in a comment to another answer by @user71659, the 1981 Air Traffic Controller's strike is an example where the strike was declared illegal, workers didn't end the strike, and 11,000 workers who refused to return to work were fired and replaced.

In contrast, if a new collective bargaining agreement were imposed, a worker who previously was on a legal strike could not be fired, and a worker could legally strike when the collective bargaining agreement expired in order to gain favorable treatment in a next collective bargaining agreement would have a right to keep their job when the legal strike ended.

Before labor laws were enacted, it was commonplace to sue striking workers for conspiracy to interfere with the business of the employer, to fire workers, to give preferences to "scabs" who worked during a strike over striking workers when a strike ended, for industries to black list employees who went on strike from employment in the entire industry, and to use law enforcement to incarcerate picketing workers. These and similar tactics are not available against legally striking workers under existing U.S. labor laws.

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    This is a good answer, but in that case the terms "protected" and "not protected" should be used instead of "legal" and "illegal." The current terminology that people are using is deceptive because it doesn't accurately describe the situation. My followup question would be then, why are people using the current terminology? Is it out of carelessness, ignorance, or an attempt to push an agenda?
    – kloddant
    Nov 30, 2022 at 14:24
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    @kloddant Mostly, it's nerdview. collinsdictionary.com/us/submission/24596/nerdview People who write and talk about this come from the perspective of labor law experts who are thinking about what is and isn't legal under labor laws.
    – ohwilleke
    Nov 30, 2022 at 20:22
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    I think the terminology is apt, and the colloquial use of the term "illegal" is what confuses people. Many people think the term "illegal" means "something I can be arrested for doing" and as a result hear the term "illegal strike" and think it means you will be arrested if you engage in such a strike. But that's not really what "illegal" means.
    – tbrookside
    Dec 2, 2022 at 18:08
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So I used this website for my source. Generally a strike is not protected under the law if it is a slow-down strike (workers work deliberately slow), a sit-down strike (workers occupy space of their business as part of the strike), the strike is intermittent (The strike is ended in time for workers to receive pay and then resumed once pay is received), or the strike uses violent/illegal activities (You know, using the torches and pitchforks).

Additionally, Unions through collective bargaining may receive concessions for agreeing to not strike while the contract is enforced, so striking during those times the contract is enforced is not protected.

Additionally, the government by law does not allow certain industries to strike, usually due to their importance. The Railway and Aviation industries are prevented under the Railway Labor Act from striking under certain conditions, and even then may only strike during contract negations and only after lengthy mediation and negotiation periods.

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    While this is good info, I feel like it misses the crux of my question, which is "what prevents individual workers from just not showing up to work even when a strike is not legally protected?"
    – GendoIkari
    Nov 29, 2022 at 22:05
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    Because then you can be fired and replaced. You actually have to declare you're striking if you want to get the protections. This would be a slow down strike, which is not a protected strike. (strikes only work when a majority of the workforce strikes... if you pull a Blue Flu, they can fire you and hire people who want to work.).
    – hszmv
    Nov 29, 2022 at 22:16
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    So would it be fair to say that an “illegal strike” would be more properly called a “strike that doesn’t carry with it special legal protections”?
    – GendoIkari
    Nov 29, 2022 at 23:04
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    @GendoIkari Pretty much. You're not allowed to fire legal strikers.
    – hszmv
    Nov 29, 2022 at 23:14
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    The 1981 Air Traffic Controller's strike is an example where the strike was declared illegal, workers didn't end the strike, and 11,000 workers who refused to return to work were fired and replaced.
    – user71659
    Nov 29, 2022 at 23:49
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What prevents individual workers from just not showing up to work even when a strike is not legally protected?

As already noted, there is no real sense in which it is illegal to withhold labor from employers, although penal labor still effectively permits slavery, and slaves are not legally allowed to withhold labor. If you are voluntarily employed, you can refuse to go to work.

There were times in the USA, particularly the Coal Wars, where laborers were killed for withholding labor. The NLRA, which sets up the current framework by which strikes may be "legal" or "protected" or etc., was established partially as a response to the bloodshed, and to give a framework for nonviolent negotiation. Part of the framework is that employers are not allowed to dismiss employees merely for collectively bargaining; this is partially to allow employees and employers to negotiate without firearms.

So, one person's modus ponens is another person's modus tollens! Let's consider the contrapositive. Employers like to be able to declare strikes as "unauthorized", "unprotected", "illegal", etc. because it gives them a pretext for dismissing employees that would otherwise be shielded from dismissal by the NLRA.

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  • Existing answers are well-suited to Law, but this is Politics!
    – Corbin
    Dec 2, 2022 at 15:29
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The title question, What exactly does it mean for a strike to be illegal in the US?, is a good deal more general than the body, which pertains more narrowly to the present potential for a "wildcat" strike by rail workers.

I'm not clear on the precise relationship to unions governed under the Railway Labor Act, but state laws are certainly pertinent to at least the title's more general question. For example, under New York state's extremely punitive Taylor Law:

New York state has one of the strictest laws in the country. It prohibits strikes by all public employees at the local and state level, except those covered by laws like the RLA. The state enacted the statute, commonly known as the Taylor Law, in 1967 after a series of strikes by transit workers.

The law establishes dispute resolution procedures for public employee unions and government employers, which includes mediation and binding arbitration. Work stoppages may result in monetary fines, or even jail time. In 2005, for example, a court ruled that a transit strike in New York City violated the Taylor Law. It fined the union $2.5 million and sentenced the union president to ten days in jail.

I haven't been able to find any information about whether any state laws would also apply in the case of a potential "wildcat" strike by the railway engineers and conductors. Either way, fines and jail time are clearly part of what it means (in a strict, formal sense) for a strike to be "illegal" in the US in 2022, even if in this example it was the workers' union that was fined and its president who was jailed. Though it is collective punishment, it is no less a penalty, and no less an impingement upon the individual workers' freedoms, which are only guaranteed to the extent that they have power.

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  • The quote says work stoppages may result in fines or jail time but what all does that exactly apply to?
    – Joe W
    Dec 2, 2022 at 19:19
  • @JoeW Did you read the link?
    – Stew
    Dec 2, 2022 at 20:31
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    Users should not have to go to outside sources to understand an answer. If information is needed to understand a quote that is given in the answer that information should also be included in the answer.
    – Joe W
    Dec 2, 2022 at 20:39
  • @JoeW I've expanded the excerpt with more information. There are several comments on the other answers here debating about the accuracy of the phrase "illegal strike". My intent with this answer was to demonstrate that there are contemporary laws in the US which do impose criminal penalties on individuals and unions, such that "illegal strike" is not an imprecise or misleading phrase.
    – Stew
    Dec 2, 2022 at 21:00
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    Thank you for expanding your answer. Your answer now has a completely different tone as it is clear that it is talking about public/government workers instead of workers at all levels. It is always good to include enough information in a quote so that readers can fully understand what is being said.
    – Joe W
    Dec 2, 2022 at 21:03
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In general, when a union strike is determined to be illegal, they lose any protections associated with a collective bargaining agreement to their unions. In layman's terms, retaliation, termination, trespassing, and many other legally detrimental options become available to the opposing side.

These legal downsides don't even take him a consideration that illegal strikes automatically and negotiation. This means that all of the people that are picketing or reframing from working are subject to any and all repercussions from legal and and employer options.

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