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Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. They cannot be discharged or permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work must be discharged. An economic striker can become an unfair labor practice striker during the course of an economic strike if the employer commits an unfair labor practice, such as failing to bargain in good faith.
If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers back pay starting at the time they should have been reinstated.
The Board recently has expanded the remedies available when employees engage in an unfair labor practice strike. Beyond awarding backpay to strikers, the Board has ordered employers to “foot the bill” and reimburse unions who provided economic assistance to unfair labor practice strikers upon finding the underlying unfair labor practice charge meritorious, with the intention of making the union whole.1
1. Spike Enterprise, Inc., 373 NLRB No. 41 (April 10, 2024)