Synopsis By: Greco - Proceeding Author: Jerome A. Cooper, Fred W. Elarbee, Jr., Carl A. Warns, Jr.

The issue of the right of management to discipline for failure to cross a picket line brings together the variables found in the interpretation of “just cause,” past practice, the “no-strike clause” (if one exists), and public law. This article surveys arbitrators’ decisions on the subject, and offers some conclusions. Commentator Elarbee opines that, if the CBA has a “no-strike” clause, the employee who refuses to cross a picket line should be subject to discipline; if the CBA does not contain such a clause, then there should be a balancing of the employer’s and the employee’s rights. Commentator Cooper contends that “if the contract specifically and clearly says that the failure to cross the picket line shall not subject the employee to discipline or accountability, that ought to end it.” “…if there’s a clear-cut prohibition against respecting a picket line under any circumstances, the union should observe the prohibition…” “But I do not see how, absent language providing specifically for the consequences of refusal to cross the picket line, discipline for that refusal, absent misconduct, can in any way be declared just or fair or reasonable.”