NLRB Affirms, Based on Specific Contract Language, Union Members’ Right to Strike Without Losing Health & Welfare Benefits

The National Labor Relations Board (“Board”) recently concluded in Hawaiian Telcom, Inc. and International Brotherhood of Electrical Workers, Local Union 1357 that striking telecommunications workers were entitled to continued benefits during the period of a strike. The Board ordered Hawaiian Telcom Inc. to compensate former strikers for accrued benefits denied to them as a result of their participation in the strike, and take other steps to remedy its unfair labor practices.

In November 2011, over two weeks after their collective bargaining agreement expired, workers employed by Hawaiian Telcom Inc. went on strike. Once they struck, the employer terminated the strikers’ medical and dental benefits.

The Board concluded that—based on the language of the underlying contract—the strikers were entitled to strike without losing their health and welfare benefits because the benefits had already accrued.

The Board made clear it was not establishing workers’ general right to continued benefits during any strike under all circumstances. The Board limited its decision to the specific facts and contractual language involved in this case.

Nonetheless, there are some helpful takeaways from this decision (and the law it relies on) that can make it more likely your members will be entitled to maintain benefits during a walkout.

Some suggestions when bargaining a new contract:

  1. Seek broad benefit eligibility clauses that provide health and welfare benefits for all employees, without a time-in-service requirement. In this particular case, the broad eligibility clause in the contract helped demonstrate that at the time of the strike, benefits had already accrued to the workers—a significant requirement for being entitled to benefits during a strike.
  2. If an employer insists on a time-in-service requirement, insist on contract language that specifies that benefits, once the time-in-service requirement is met, are deemed accrued.
  3. Limit the circumstances under which an employer may cease providing benefits. Inthis particular case, neither of the two circumstances permitting the cessation of benefits under the contract was present. This helped demonstrate that the strikers’ entitlement to benefits had not ceased.
  4. Seek contract language stating that the parties agree employees’ rights to health and welfare benefits are “important employee rights.” This language may help prove an employer’s unfair labor practice. 

Particularly in these political times, the maintenance of benefits during a strike could be a necessary condition for some workers in honoring or voting for a strike. To ensure maximum protection of Union workers, as well as maximum participation during a strike, your collective bargaining agreement language can help preserve rights to health and welfare benefits during a strike.

For more information, contact your labor law counsel.

By David W. M. Fujimoto | May 9, 2017

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