What is the difference between an unfair labor practice strike and an economic strike?

A work stoppage is called an unfair labor practice strike if it is staged in response to an employer's unlawful activities. An unfair labor practice strike can result from an employer's discharge of union activists, or from an employee being prohibited from having a union representative present at a disciplinary investigatory interview.

An economic strike, in contrast, occurs when a union is attempting to force an employer to comply with its bargaining demands regarding wages, hours, or other terms or conditions of employment. Economic strikes usually occur during contract negotiations after talks break down.

Sometimes it is difficult to determine whether an employee walkout is an economic strike or an unfair labor practice strike. For example, if employees participate in a work stoppage following an employer's announcement that it will no longer pay shift differentials, it might seem that the employees are engaged in an economic strike, as the decision they are protesting relates to wages. However, if the employees have long enjoyed shift differential pay, then the employer's unilateral decision to alter this pay scheme is unlawful. Their walkout is an unfair labor practice strike; the employer has unlawfully refused to bargain with the union and, thus, has committed an unfair labor practice.

However, if, during negotiations for a new collective bargaining agreement, the employer refuses to accept the union's request that it start to pay shift differentials to second-shift workers, and the employees go out on strike in order to compel the employer's concession to this provision, then they are engaged in an economic strike. To further complicate matters, an economic strike can turn into an unfair labor practice strike if, during the course of the economic strike, an employer engages in unlawful activity.

Why it matters. Why does it matter whether the work stoppage is an economic strike or an unfair labor practice strike? It matters for several reasons, including the potential public relations impact on both parties in the dispute. Most importantly, unfair labor practice strikers have broader reinstatement rights following a strike.

Reinstatement of economic strikers. Economic strikers, who strike to obtain an economic concession from their employer, retain their status as employees and may not be discharged, but they may be replaced. If the employer has hired bona fide permanent replacements who are filling the economic strikers' jobs when the strikers apply to go back to work, they are not entitled to reinstatement at that time. However, an economic striker does retain a preferential reinstatement right. If the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they or their bargaining representative have made an unconditional request for their reinstatement.

Economic strikers who have been replaced by temporary replacement workers have the right to be immediately reinstated after making an unconditional offer to return to work.

Reinstatement of unfair labor practice strikers. Unfair labor practice strikers, who are striking in response to an employer's unfair practices, are entitled to immediate reinstatement. Unfair labor practice strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers are entitled to have their jobs back even if employees hired to do their work have to be discharged.