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 legal 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. A decision of the Supreme Court in Abood
v. Detroit Board of Education, 431 U.S. 209 (1977), a Foundation-supported
lawsuit, makes 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 Abood, you do
not have to be an actual member to keep your job, regardless of what the
collective bargaining agreement between your employer and your union says.
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.
In right to Work States, and a few other states, any agreement requiring
you to join or pay money to a union is illegal. Click
here to see a list of the Right to Work states.

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.