Leading Through Strikes: Executive Strategies for Union Engagement- Post-IFSEA Conference Podcast Recording
Following the 6th IFSEA International Conference on Executive & Founder Issues in June 2025, we are delighted to share with you a follow up podcast for the session ‘Leading Through Strikes: Executive Strategies for Union Engagement’. Watch the video, listen to the recording or read the transcript below.
In this brilliant discussion, the IFSEA annual conference panellists explore important multijurisdictional issues for executives to understand in a strike situation or labour conflict.
Jonathan Tuck, Baker McKenzie (UK)
Carlos Pareja Frade, Augusta Abogados (Spain)
Jennifer Platzkere Snyder, Dilworth Paxson (Philadelphia/NY, USA)
Chair: Danny Kaufer, Borden Ladner Gervais LLP (Montréal, Canada)
In particular, the panel discuss:
The differences in frameworks for union formation and industrial action.
How are trade unions changing and what are the implications for executive strategies during labour conflicts?
The boundaries of lawful executive conduct during strikes and the consequences of non-compliance.
BECOME A MEMBER OF IFSEA:
Come and join the discussion on all things Senior Executive and Founder related!
To become a member of IFSEA and benefit from the significantly discounted conference registration fee, free attendance at IFSEA mid-year events, click here.
Membership is open to Senior Executives, Founders and their professional advisers from around the world and across disciplines.
Video Transcript:
Danny: Hello everybody, and we'd like to welcome you to this brief session on the issue of the role of the executive in a strike and or labour conflict. I'd like to introduce my panellists or my speakers with me today. We have John Tuck from the law firm of Baker McKenzie in London. We have my good friend Carlos from Spain. And last but far from least we have Jennifer Snyder from the Dilworth firm in Philadelphia, Pennsylvania. And I'd like to make a couple of opening comments and then I'll open the floor to your jurisdiction. I think what's so important about the issue of the whole question of the role of the executive in a strike or labour conflict is the following. It is a situation where the executive himself or herself is clearly in the front. And on the front lines. And what I mean by that is a mistake on behalf of an executive has dire consequences, especially in North America. I think they are less legalistic in Europe, and in the UK, but they are nonetheless problems and they can cause issues for employers in both Europe and in the UK. The other point that I want to make is the following, and Jennifer and I have had the opportunity of discussing this in the past. This is an area where it is really clear that executives are forced to look at issues other than just pure labour law. For example, in some of the more I would call newsworthy labour conflicts that I've been involved in, we had executives that were being trained on issues as they relate to shareholder meetings, board meetings, interviews with journalists. And what I mean by that quite simply is trade unions are far more sophisticated than they have ever been. And in that regard, many times shareholders buy shares of companies in which they have, or over which they are involved in a labour conflict. And the purpose of that share purchase is to attend a shareholder meeting and to embarrass the executive who's sitting up in the front and maybe not ready for the question. So I think it's an area where corporate people, corporate attorneys, PR people, and labour and employment attorneys need to work more closely together and more carefully. So with those introductory comments put aside, what I'd like to do is I'd like to turn my first question to Carlos and ask him quite simply, in your jurisdiction, who represents employees and how are they created? In other words, are they created by statute? Are they created by government? And within that framework, could you give us an idea of what role the trade union plays because I think those are all important questions to understand what the executive needs to understand when he or she is faced with dealing with a trade union or a group of employees who are represented by a trade union in a strike and or labour conflict. So, Carlos, over to you please.
Carlos: Thank you, Danny. So going straight to your question. To answer your question, in Spain we have a pre constitutional law, which is a law from before our current constitution was approved, and at that time, the union activity was not legal in Spain. So we have a specific committee, which is created during a strike when the employees are called to a strike, which is a strike committee, which is a committee which will represent the employees during all the strike, before the company. So it won't be the worst council. It won't be the unions who will be representing the employees, but this strike committee, which will be integrated, the members of the strike committee will be the ones who are designated by the ones who call for the strike. Who are the ones who can call for the strike. It can be the works council. As you know, we have this difference between our system and your system that we have this works council which is directly elected by the employees. So if the works council has called to the strike, it can be the members of the works council who will be part of this strike committee, or it can be other employees who want to be part of this strike committee. The maximum number of members can be 13. And if it is the unions who call for the strike, they can also call for a strike instead of the Works Council. The unions will choose who will be the ones who will integrate the strike committee. Also, there's a third party which can call for the strike, which can be the employees themselves. The employees can, regardless opinion of the unions or the works council they can call for the strike and they can also, choose the strike council, the strike committee members. So it can be any employee of the company who can be part of this strike committee, who will be the one who will be representing the employees during the strike.
Danny: Carlos, I have a question based on that. Is it possible that the employees do not want to strike? But the union and or the works council want the strike and they call for a strike. Do the employees have to go out and if they don't go out, do they have the right to work despite that?
Carlos: Yes, that's it. The unions and works council can strike without asking the employees. So it is usual that they first of all, they ask the employees just to ensure that they are going to have the strength enough to go for the strike and to get the goals of the strike, to achieve the goals of the strike. But they can do whatever they want. And it's usual that some minor unions decide to go to a strike regardless the opinion of the employees, just to let the company know that they are there and they can do some kind of things like this. So yes the opinion of the employees is not something that it is important when they, from a legal perspective, not from a union perspective, from a legal perspective, when they call during strike.
Danny: One last question and then I'm going to go over to the other side of the ocean. Is there a legal timeframe during which a strike can be called? In other words, can the union call a strike on day one? They don't like what's happening at the bargaining table. The employer looks at their demands, they rip them up, or they make fun of them, or they walk out. Can a union then strike? In other words, is there a legal timeframe within which they must wait before they can strike or they can strike from day one?
Carlos: In general terms, they can strike when they want. Also, there are some CLAs that, where companies and unions agree that during the negotiations or even during their term agreed for the CLA, there's no right to strike. Also a strike could be illegal if they want to change something that they have previously agreed with the company. You cannot agree something on a CLA and then two months later tell the company that, okay I don't like this and I want to change it so I am going to strike if you don’t accept my conditions. That will be a point, a reason why an strike could be illegal. But in general terms, there is no limits for the unions or work councils or even the employees as I was telling you to go on strike. It depends on the reasons why they are calling the employees to go to strike.
Danny: One last point. I'm assuming CLA is a collective labour agreement, correct?
Carlos: Yeah.
Danny: Thank you. Jennifer. Let's use the same series of questions and in your jurisdiction, who has the right to strike? How is a strike called and is there a legal timeframe before a strike can be called? And if not, what then is, or are the rights of either the trade union to call the strike, and what would then be the employee's rights to not go on strike if the union declares a strike?
Jennifer: So why don't I try to point out what's very different about the US first, and then I can sort of come back to some more refined answers. First of all, the trade unions that exist in Europe, it's a very different system. The US is more like Canada. And a union can represent employees at a single workplace and nowhere else. They can represent a single group of employees in a single department without the rest of the organization being unionized. They could be a union that has experience in an industry, but it has nothing to do with mandating unionization across an industry. There are certain sort of exceptions to that where certain states of passed laws requiring employers to en enter into project labour agreements in certain industries in order to get licensing such as the cannabis industry. That's a newer development and that's not governed by federal labour law. What's governed by federal labour law is that the National Labor Relations Act provides the right to all employees in all workplaces, that are private sector workplaces, with limited exceptions. The right to organize collectively for the benefit of the group of employees working at a certain employer regarding wages, hours, and working conditions. The Act, the National Labor Relations Act protects employees, including employees who can, who lawfully strike, and we'll get into that in a minute, but whether or not a union is actually representing them. The union can get authorized certified to represent a group of employees at a particular workplace through processes that are established under the National Labor Relations Act for seeking representation, reviewing cards that have been signed, authorizing a union to represent employees or through an election that's a secret ballot election, but employees just as much have the right to vote against the union. And the only people who can be members of a union are non managerial. Something that Carlos said that, you know, was interesting is that any member of the workforce that an employer could be on the strike, you know, committee. And the only people who could be on a bargaining committee at a workplace or making an impact in terms of voting for a strike, would be the employees who are eligible to be represented by a union, which are non managerial employees. So it's striated in the States that you can't be, supervisors are not included in a unit with people who they would manage, for example. As far as strikes, let's fast forward. There's two types of strikes. One is a strike that happens at a workplace without even a union involved. It could be that employees are standing up for their own wages, hours, and working conditions. Taking collective action such as walking off the job at lunch because they're protesting a schedule change or they're protesting a safety concern. They don't need a union to be involved for that strike to potentially be lawful and protected and they be protected against adverse retaliatory action. Now, the vast majority of cases, and I think the ones we're going to focus on are where there's already a union in place, and the union, it gets to be in place by usually being voted in by a majority of those who show up on the election day or who mail-in mail-in ballots, if it's a mail ballot election, at the time a union is created. So employees can vote no, it's a secret ballot situation. The procedures in the US have gotten loosened over the years for encouraging other mechanisms for recognizing unions. And in fact, or imposing a union on a group of employees where the National Labor Relations Board decides that the conditions for organizing would not allow for a free and unfettered choice by the employees of their interest in an election and interest in representation. And so if executives, and again, why we're here is about the executive’s actions and statements that could lead to further union action. And in the US there was a seminal case that released in August of 2023 called the Cemex Decision, and it's on appeal, but right now it basically says that if there's an organizing activity going on where a union is trying to get into a workforce to represent employees, and that's known by the employer. If the employer who acts through its executives makes any missteps that the National Labor Relations Board decides are violations of the law, even minor ones, the National Labor Relations Board can say, you know what? Employer, you didn't treat this process seriously. You didn't give these employees the right to vote without pressure, so we're going to impose a union on you. And that creates a new dynamic in that workforce. As far as strikes, there are lawful strikes and unlawful strikes in the US. Lawful strikes are when employees walk off the job because they believe that the employer has been engaging in unfair labour practices. Or if they are in the process of bargaining for a contract or a successor agreement, and they think that the employer's not bargaining in a good faith in trying to advance the process. Or if there's been a union in effect for an extended period of time when the collective bargaining agreement, the contract that exists that governs the relationship between the employer and the union. When that expires, legally employees have the right to strike. The union will only call for a strike in our country where the employees who would be striking, a majority of them vote in favour. It's typically not imposed on them by the union because there's no strike benefits necessarily in the US. So employees who go out on strike do so at their peril, and they give up wages, they give up potentially benefits, they give up potentially the right to reinstatement. It's nuanced and there's not a one size fits all answer, but they're giving up a lot to go on strike. So when a strike vote is called, only after that passes could there be a potential. And even when it's voted in, sometimes unions will dangle that as a bargaining chip against an employer to say, we have a strike authorization. I'm in Philadelphia where our unions who represent the city, the employees of the city of Philadelphia, including all sorts of municipal employees, went on strike a couple weeks ago, right? Around the July 4th holiday, which is a big one in Philadelphia, the birthplace of our nation. And, you know, trash started to pile up and other services weren't getting, facilitated to the way that they would normally be. And that was a pressure point that the union used on the city to try to eventually come to a deal. But typically, the deals that are struck between an employer and a union after a strike are not always meaningfully better than what was being bargained for before a strike.
Danny: So John, you have been very instructive during the preparation of this conference. I learned a term, which I really didn't understand before, which is counteractions and how they are used a lot in the UK. The other thing that I learned is that you are on the cusp of a very interesting set of times, both for yourselves as attorneys and your clients as executives with the change that is being proposed to traditional labour law in the UK. So it would be unfair to ask you to do all of that in a brief discussion, but I would like to hear from you as to what is the present state in the UK and what are these quote unquote counteractions? And last but not least, what would be a couple of the highlights that you think are going to change with the new labour government, or the new labour legislation excuse me, that government is already older. The question then is those are being proposed in 2026, so what is this going to look like in 2026. So over to you, John. I'm sorry, the question took longer than it should.
Jonathan: No that's a really good question. Thanks Danny. I mean, to kick off to your first question, which was the present state of things in the UK from an industrial relations perspective, and in particular trade union and strike action. It's a really interesting context, I think because taking a step back, I think the private sector's relationship with trade unions is in an interesting place. So trade union membership is at the lowest recorded level amongst employees since records began, which is in the mid nineties. So in 2024, I think it was the last time we had the records taken. UK employees in the private sector who would trade union members had fallen to 22%. Sorry, that's across the board, but it's driven by the private sector, but there's been pretty much year on year decline in trade union membership within the private sector. And the reason that's particularly interesting, and particularly in the context of strike action, is that despite that fall in membership of trade unions and therefore you would think, a decrease in their influence, the number of days actually lost to strike action in the UK has increased significantly over the last few years. So ignoring COVID period where the number of days lost to strike was very low. Post COVID, the numbers jumped to over two and a half million days per year lost to strike action. And that is up massively from the pre COVID days. So in the late 2010s, you were looking at about 300,000 days lost to strike action per year. So you're in an interesting place where you see this decrease in trade union membership in the private sector, but also increased union activity. You can talk about the reasons why that is. Cost of living crisis, high inflation, protracted and difficult pay deals between unions and employers. But it is an interesting scene in which to sector the UK industrial relations landscape. We have a long history of strike action in the UK. I mean, just to touch on some of the points Carlos and Jennifer was saying, because there's so much similarities and some big differences. Strike action in the UK has to be done with, union members i.e. employee members, consent. And when I say consent, I mean unions have to ballot their members in order to take strike action. They have to do a ballot. It's very procedural and it's very prescriptive. They can only call strike action if they meet certain thresholds amongst their membership. And in that instance, they can give notice to the employer. As I say, every step is incredibly prescriptive, and it's prescriptive on purpose by previous governments back to the 1980s where they wanted to make it hard for unions to take strike action. And we have a history of legal actions in the UK that if you trade union, have done a misstep on any of these number of procedural steps, we employer or executive leading the charge for the employer, can bring an action to challenge the legality of the strike action and stop the strike action potentially. Now that that is a very well trodden path in the UK in terms of employers taking injunctive relief against trade unions in order to prevent them calling their members on strike. And it leads to really fractious relationships sometimes between union unions and employers. It gets legal very quickly because you have to be in court really quickly to bring an injunction against trade union, and industrial relations become very difficult off the back of that. What I would say is probably a trend over the last few years is that trade unions have got a lot, lot better at getting the procedural steps correct even though they're very prescriptive. And that goes in hand in hand with the fact that probably the courts have got a lot more flexible in terms of letting trade unions get away with de minis, minimal nothing breaches where previously they probably would've given you an injunction as an employer. So that's broadly the scene in which we operate with trade unions and employers and strike action. As you've rightly said, Danny, we are in a time at the moment where there are significant proposed changes to the employment law landscape in the UK generally from the labour government and they're introducing an employment rights bill, which covers a number of areas, most of which are not union related, not industrial relations related, but very significant trade union related changes. The two I think worth mentioning, one is just to say they're making procedural changes to the strike action balloting and notice provision I touched on that unions have to go through with a view to making it slightly simpler for unions. They still have a lot of procedural steps to go through in order to call strike action, but the most significant I think, is changes to the legislation to give trade unions greater access to employers. And so employers will have to, the details still need to be ironed out, but will have to help facilitate access of unions to their workforce for the purposes of recruitment, for the purposes of recognition for drumming up membership, et cetera. Now, for a lot of organizations that's slightly terrifying. They've spent their lives fighting unions getting into the workplace, fighting them on strike action, and having fractious collective bargaining processes with them. I think where it's even more terrifying in a way, is that those changes aren't specific to organizations that already recognize unions. They also will apply to organizations that don't have a union presence. And where that's probably most relevant and applicable is in the tech industry where, at least from a UK perspective, I think not dissimilar trends on the other side of the pond, Jennifer in the US is that unions have been trying to make moves into the tech industry, and get recognition and drum up membership, to limited degree of success to date. I think their ability to have access to the workforce within those organizations will just fuel the fire on that and they will try and use these new rights of access, to get access to those workforces, and potentially gain recognition in the longer term.
Danny: If I can just ask one last question of each one of you. We're in a strike situation, it's legal, whatever. What can an executive do or say that is allowed? I know it's a very general question. And more importantly, if that executive breaks the law, what's the consequence of the fact that he's broken the law? Let's start with Jennifer. I understand that system far better than I understand the UK and the EU. So I'll start with her because we have such things as unfair labour practices and what that means, and that's where the executive can really get triggered on a violation of the NLRA as it's known in the United States. Jennifer, please.
Jennifer: Well, what can an executive say safely without creating more legal issues for the company. I will give a horrible lawyer answer. It's hard to know. Okay. It's easier for me to say what they shouldn't say. They shouldn't say things like, oh if you don't like working here, then go somewhere else across the street. Or, if you, you know, keep this up, you're going to lose your stock options and you're going to lose benefits. And we're going to consider relocating to a state that maybe is a little bit more friendly to our positions. Those are things definitely not to say because those have gotten some of our most senior executives from our most public facing companies in deep hot water and lots of litigation. But even then, the counter argument is, I'm just expressing my opinion. Under the law, executives should be free to state facts, about unions, about the pros and cons of a contract, the pros and cons of proposals, the pros and cons of where dues money is going, for example, and what the employees who are either seeking representation or already represented by a union what their dues are funding. Those are all facts. Technically, an executive should, if they stick to the facts, you know, like a dragnet, I know I'm dating myself, but be the reporter and only report facts should be safe. Opinions should all be safe. But if there's expressly, this is my opinion. I think opinions is where executives get into the most hot water because they don't couch them as such, and they are then interpreted as threats. And the last thing that can be spoken about, it should be with impunity, but without, but not always is experiences, is what if this strike action continues what I believe will happen or what experience tells me. Otherwise there's nothing that's safe.
Danny: So it’s safe to say that if an employer or an executive makes a wrong statement during a strike, there are consequences for the company, for those wrong statements.
Jennifer: And it's not just with the executive themselves. It could be postings that are required. It could be certain bargaining proposals that have to be imposed. There's a whole host of remedies that could be imposed.
Danny: Okay. Carlos strike, legal, illegal, whatever. What can an executive say and what's the consequence if he or she crosses the line?
Carlos: So three main ideas. Always act representing the company. Don't act on your own. If you are giving an opinion, give the opinion of the company. Not your own opinion, to avoid your own responsibility on the consequences of that opinion. Avoid anti-union behaviour. Don't tell the people that the union is acting illegally if they are not, don't tell the people that the union doesn't have the right to strike, and avoid coercion to the employees. Don't tell the employees not to strike. Don't tell them that they're going to be dismissed if they strike. Avoid these three things and you will be free of any responsibility during strike.
Danny: Question, you breached the law. An executive makes a wrong statement. What is the consequence?
Carlos: In Spain, you can be facing some damages, and facing some compensation to the union, even to the employees if the judges understand that your behaviour has infringed their fundamental right to strike. So those are the main things to consider. There are some criminal consequences in case your behaviour has been serious enough against a strike. But from a perspective, it is not that useful that the company incurring that mistake that leads them to face criminal pressure during a strike.
Danny: Thank you, Carlos. John, if we can now come to you, last but not least, far from least, the question that I have for you is the following, exactly the same, strike is in place. What can the executive say, and if the executive says something wrong, what are the consequences to the company?
Jonathan: Yeah, and it's not dissimilar to Carlos in a way, in that there are some legal restrictions on what an executive can say. I mean not loads to be honest, but you know, you can't be saying to employees, you're going to be dismissed if you go on strike. But I think the main consequences of what the executive says to employees is more in industrial one. So throughout any period of strike action, you, the employer will almost inevitably be in ongoing talks with the union to try and reach agreement on either the underlying issue and or the strike action itself. And so the big question for an executive is, are the communications you are sending out to employees going to help or hamper those discussions with the union? And you need to tread accordingly. And you as an employer and as executive, have a balance to strike between a potential desire and benefit of communicating certain things to employees which are legitimate to communicate. And I should say Danny, employees aren't obliged to go on strike. They can choose to, or they can choose to come to work. So a lot of the comms will be, you know, employers will want to say to employees, you won't get paid. You know, you don't have to take part in action and please help us keep the business going. And if they do come into work, you know, the company will protect them from retaliation, et cetera. So they're very important messages you might want to get across. But as I say, you've got to balance that between saying things which might hamper negotiations with the union. Probably what the last thing I would say is maybe the main legal risk, which is very UK specific, or at least this piece of legislation is, is often strike actions are about pay deals that haven't been agreed, haven't been reached, and executive needs to be really careful that what they're communicating to employees isn't seen or has the effect of circumventing ongoing collective bargaining. I.e. if you don't take part in strike action, we'll increase your pay by 5%. Pay is something that should be negotiated with the union. And if you go directly to employees and circumvent the collective bargaining process in any way, that could give rise to unlawful inducement claims. And they can be really expensive in the UK. So yes, the main risk is an industrial one, but there definitely are some legal consequences for executives who get things wrong.
Danny: So if I could conclude. While there are definitely, I would consider small similarities between all of these jurisdictions, the one common theme is use common sense as an executive, or if you're counselling an executive, and more importantly, just because you can say something in one jurisdiction, doesn't mean you can say it the same way in another jurisdiction, and that is often the most difficult thing we find when we have to counsel executives, when they look at you and say, well I just said that three weeks ago in London. Why can't I say it in Philadelphia? And so those are the issues to look at. I thank the three of you immensely as I did previously. It was a pleasure to work with you live in London and it is indeed a pleasure to work with you through the beauty of Teams and other vehicles and I wish everybody a good and healthy rest of the summer. Thank you.