UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES – In General

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When an employer refuses to yield, whether on questions concerning its bargaining proposals or alleged unfair conduct, a strike becomes the ultimate, and often only, recourse available to employees. While the right to strike may be qualified depending on the circumstances, e.g., pre- or post-impasse, the protected activity itself is always meant to impose a cost on the employer. In other words, every strike is meant to inflict economic harm on the employer to achieve the union’s collective goals. If the Board were to accept the notion that a protected strike becomes unprotected (or unlawful, as the University here contends) simply because it threatens “disproportionate” economic harm to the employer, then public employees would have the right to engage only in those work stoppages that their employers are economically prepared and willing to resist. This would blunt the ultimate tool for forcing the employer to bargain in good faith, and for no other purpose than to save employers money. Furthermore, it would encourage a rule which focuses on the proportionality of harm suffered by the employer versus striking employees, without any metric to consider the risks and costs borne by individuals. In other words, far from encouraging a resolution, an injunction to prevent vigorous strike activity would tend only to prolong the parties’ dispute. (pp. 10-11.)