Originally from Dispute Resolution Journal

This article reviews and summarizes the findings of more than 30 arbitration awards dealing with striker misconduct arising out of legal strikes. The authors review the various categories of misconduct and discuss arbitrators' reasoning in reaching decisions under varying circumstances.

In many instances, misconduct charges issued against strikers are dropped by the company or are satisfactorily negotiated by the parties at the end of a legal strike. The parties do this in the interest of putting the conflict behind them and getting on with the business of work and production, as well as reestablishing their working relationship. In those cases where charges are not dropped and employees are disciplined, however, special questions arise in the arbitral process. Language specifically applicable to striker misconduct is seldom included in collective bargaining agreements. As a result, arbitrators have deviated from the standards generally applied in disciplinary cases and have placed substantial weight on a range of factors unique to the strike.

This deviation from the norm is due to the arbitrator's interest in assisting the parties to resume their working relationship in addition to achieving the traditional arbitration goals of justice, speed, and economy. Over the years, a set of criteria applicable to strike misconduct cases has evolved and is utilized by arbitrators in evaluating the appropriateness of penalties.