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 employee covered by the Railway
Labor Act follow.

Should you work during the strike? That is a personal decision
and none of the Foundation’s business. Under the Railway
Labor 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.

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.
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 Railway Labor
Act.

What about the union shop agreement? Doesn’t it require you to be
a member to keep your job? No. Under the Railway
Labor 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.

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 by 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
a union officer 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 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. 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 Railway Labor Act prohibits discharges
for nonpayment of fines and penalties. The union’s only recourse is to
sue for 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.
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 send a message
to Foundation attorneys, fill out this form.