This applies to both economic strikers and unfair labor practice strikers. Serious misconduct includes, among other actions, violence and threats of violence. Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement include the following:

• Physically blocking people from entering or leaving a struck facility;
• Threatening violence against non-striking employees; and
• Attacking management representatives.

The U.S. Supreme Court ruled that a “sitdown” strike, when employees stay in the facility and refuse to work, is not protected by the NLRA — it deprives owners of their property.1

In Wal-Mart Stores, Inc., the Board held that peaceful strikes on an employer’s property may be lawful under the Act even when in full view of the employer’s customers.2 In this case, several employees stopped working prior to the store’s opening and assembled near the store’s entrance. When the store opened, the employees were joined by non-employee protesters, and the entire group displayed a banner in the store for approximately one hour. The Board found that this caused little or no disruption to the employer’s ability to serve its customers.

Given the current composition of the Board and its members, we anticipate that at least for the next year or so, the Board will take a more forgiving approach to employees using profanities on the picket line. For example, an administrative law judge found the employer violated the Act by suspending and discharging an employee picketing regarding COVID-19 protocols for profanity towards another employee. During the protest, the employee called a coworker explicit and derogatory names; the administrative law judge found that although the comments may have been derogatory, they were nonetheless in furtherance of a protected purpose. 3

On June 1, 2023, the U.S. Supreme Court ruled that the National Labor Relations Act (NLRA) doesn’t preempt an employer’s state law claim that a union intentionally destroyed the employer’s property during a strike.

While the NLRA protects employees’ right to strike, that right is not absolute. Under federal law, the NLRA doesn’t protect strikers who “fail to take reasonable precautions to protect their employer’s property from foreseeable, aggravated and imminent danger due to the sudden cessation of work.”

1. Fansteel Metallurgical Corp., 306 U.S. 240 (1939); see also Yale Univ., 330 NLRB 246 (1999)