According to section 7 of the NLRA, union disciplinary issues have to be collectively bargained. What would be the key elements of an effective disciplinary policy in a collective bargaining situation? What would be the consequences of not having an effective policy?
? First, consider the arguments for reinstatement rights. Foremost is the argument that if reinstatement was not immediate, then the employer is gaining an advantage through illegal behavior. Without reinstatement, the NLRB is unable to effectively remedy the employer’s unfair labor practice so the NLRB and the NLRA becomes ineffective. Also, if employees are allowed to strike in response to an unfair labor practice without fear of being permanently replaced, then employers may be less likely to commit unfair labor practices. On a different tack, note that section 10(c) grants the NLRB the authority to order reinstatement when an unfair labor practice has been committed. Thus, a second argument is that the NLRA provides for reinstatement in unfair labor practice strikes.
On the other hand, it has been argued that providing for immediate reinstatement is contrary to the NLRA. In particular, the NLRA’s intent is to promote industrial peace but providing reinstatement serves to encourage striking which conflicts with the goal of industrial peace. It is also argued that guaranteeing reinstatement is a poor method of trying to reduce the likelihood of employer unfair labor practices because the protections are imperfect: it is still costly to go on strike and there is the risk that the NLRB will not view the strike as an unfair labor practice strike.