What if I want to work during a strike? (Public Employee)

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

Answer: In many states, strikes by public 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.

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. If the strike is illegal, however, it is likely that the courts would rule that the union cannot lawfully fine members who obey the law and work.

A series of questions and answers about a strike that apply to almost every public sector employee follow.

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

Can the union fine you if you work during the strike? Probably, if public employees can lawfully strike in your state, and 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. However, it is likely that the courts will not enforce the union’s constitution and bylaws if public employee strikes are illegal in your state.

Should you resign from membership if you work during the strike? Yes, if public employee strikes are legal in your state. 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. 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. If public employee strikes are illegal in your state, you probably do not have to resign to avoid union fines for working, but resignation would make it certain that you could not lawfully be fined.

Can the union constitution prohibit you from resigning during the strike? No. Decisions of the Supreme Court in Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and Janus v. AFSCME, 138 S. Ct. 2448 (2018), two Foundation-supported lawsuits, make clear that you cannot constitutionally be prevented from resigning from your union. Some states, but not all, also have statutes that guarantee public employees 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 Janus, such an agreement is unconstitutional.

If you worked during the strike before resigning, does resignation protect you from all fines? Not where public employee strikes are legal. In those states, 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 public employee strikes are illegal in your state, you probably cannot lawfully be fined for working even before you resign.

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 may lose the right to vote on ratification of the collective bargaining agreement. You may also lose your right to continue in any union pension plans that are based on membership in the union rather than service with your employer as an employee benefit.

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 a union officer by hand with a friendly witness present.

What rules apply if the union attempts to fine you? Under the rules of law that generally apply to union disciplinary proceedings, 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 we 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. If strikes by public employees are illegal in your state, you should raise that as a defense. 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 union’s only recourse is to sue for the amount of the fine in state court, which it could lawfully do if public employee strikes are legal in your state. 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. 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.

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