LABOUR AND INDUSTRIAL LAW - II

CIA – 3

An Analysis of Picketing and Strike under Labor Legislations of India and USA

Submitted By:
Name: Varsha Karunananth
Class: 6BBA LLB B
Reg. no: 1750567
 An Analysis of Picketing and Strike under Labor Legislations under India and USA

Introduction

It has been said that there is always a corresponding duty for every right assigned to a person. This right-
duty relationship helps put a person’s role into perspective. In the present-day scenario for labor law, the
right to strike is a crucial right vested in a laborer. However, the said right is also tagged along with a
corresponding duty to not misuse this right, as it is fairly easy to exploit a right which leads to further
foreseen or unforeseen consequences. Some of these consequences include causing a havoc in the daily
functioning of a corporation, disruption of the, profits, economy etc…Therefore, it is indeed very
important to introduce and mandate a regulatory mechanism to keep the rights in check.

As per the Indian constitution, Article 19 guarantees every person the Right to Protest, as long as it is
peaceful and non-provocative. This has been recognized as a fundamental right as per the Apex Court in
the case of Ramlila Maidan v. Home Secretary, Union of India & Ors 1 However, when it comes to labor
legislation framework, there is no consideration of Right to Strike as a fundamental right. Right to
(peacefully) Protest is slightly on a different degree when compared to Right to Strike. The latter is a
specific type of the former.

Even in the Communist Party of India2 case, the High Court of Kerala held the following: “No political
party or organization can claim that it is entitled to paralyze the industry and commerce in the entire
State or nation and is entitled to prevent the citizens not in sympathy with its viewpoints, from exercising
their fundamental rights or from performing their duties for their own benefit or for the benefit of the
State or the nation. Such a claim would be unreasonable and could not be accepted as a legitimate
exercise of a fundamental right by a political party or those comprising it."

Picketing and Strike

Picketing and strike have been, for a very long time, used interchangeably at several instances. Many a
times, strike has been considered as a weapon under the eyes of law, in several cases. There arises a
certain degree of perplexity when it comes to picketing and strike. Picketing is a form of strike where
the workers/laborers assemble outside the workplace, as a sign of protest, to satisfy their specific
demands. This is generally done to encourage non-trade union members/employees to not contribute to

1
In re (2012) 5 SCC 1
2
Communist Party of India (M) v. Bharat Kumar and others, (1998) 1 SCC 201
the company until the demand is fulfilled. The main ideology behind picketing as a protest is to ensure
the demands are satisfied by not doing work and ceasing operations, which will further lead to losses for
the company.

Strike, on the other hand, is a refusal to work sorted out by an assortment of employees as a sign of
dissent, normally trying to increase allowance or allowances from their manager. Strikes are typically
attempted by worker's organizations such, as trade unions if all else fails during collective bargaining,
where both the parties attempt to enter into an understanding about the wages, advantages, and working
conditions. Strikes turned into a piece of the political scene with the start of the Industrial revolution.

What sets both of them apart is that picketing leans more towards the fact that a group of workers gather
outside the organization, instigating other employees to withdraw themselves from working and also
capture public attention to the issue, meanwhile, strike is just the refusal to work until the demands of
the union are met by the management.

Indian Scenario

The legal framework in India, with respect to strike and picketing is very limited, unlike compared to
other nations. Since pre-independence era, the legislations and regulations furnished strike as an illegal
act, making it a criminal offence under the Criminal Amendment Act, 1932. However, it is very
pertinent to draw attention to the fact that peaceful picketing is not considered as a criminal offence. In
1951, the Bombay High Court consciously asserted that picketing is merely “the marching to and fro
before the premises of an establishment involved in a dispute, generally accompanied by the carrying
and the displaying of a sign, placard or banner bearing statements in connection with the dispute”3.

When it comes to strike, there is no specific provision with respect to a right to strike. For the first time,
the Trade Union Act of 1926 established a limited right to strike by allowing certain actions of a
registered trade union in support of a trade dispute that would otherwise breach common economic law.
Certain provisions of the legislation, namely Sections 18 4
and 19 5
of the Trade Unions Act, 1926
granted immunity from civil liability for strikes by trade unions. In the Indian constitution, the right to
strike is not an absolute right but it derives from the basic right to form union. Since every other
fundamental right is subject to reasonable restrictions, it is also the case that trade unions are organized

3
Damodar Ganesh v. State, AIR 1951 Bombay 459
4
Trade Unions Act, 1926, §18
5
Trade Unions Act, 1926, §19
to call on the workers to strike, and the state will enforce fair constraints. The Apex Court, while
deciding the case of All India Bank Employees Association v. I.T6, held the following: “the right to
strike or right to declare lock out may be controlled or restricted by appropriate industrial legislation
and the validity of such legislation would have to be tested not with reference to the criteria laid down
in clause (4) of article 19 but by totally different considerations.”

Comparing strike and picketing, the former has more provisions covered than the latter. Picketing has
been rather far less recognized as a form of strike and more so as an offence, which makes the
employees skeptical to hold a picket.

The Industrial Dispute Act, under Section 2(q) 7, defines the word “strike” as a “cessation of work by a
body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal
under a common understanding, of any number of persons who are or have been so employed to
continue to work or to accept employment”.

Whenever employees wish to strike, they must follow the procedure provided by the Act, otherwise
strike is considered an illegal strike. Section 22(1) 8
of the 1947 Industrial Dispute Act placed certain
restrictions on the right to strike. It provides that no person employed in public utilities sector shall strike
in contravention of contract:

(a) Without giving notice of strike to the employer;

(b) within fourteen days of notification; or

(c) before the expiry of the date of strike referred to in any such notice; or

(d) before the conciliation officer and seven days after the end of the conciliation proceedings.

In the case of Mineral Miners’ Union v. KudremukhIron Ore Co. Ltd. 9, the High Court of Karnataka, it
was retained that the arrangements of section 22 are compulsory and that the date on which the workers
proposed to go to strike should be set out in the notice. If the date of strike stated in the strike notice
expires in the meantime, the workmen must give a fresh notice. It may be noted that if a lock-out is
already in place and employees want to strike, notice must be given as required.

6
AIR (1962) SC 171
7
The Industrial Disputes Act, 1947, §2(q)
8
The Industrial Disputes Act, 1947, §22(1)
9
1988 (3) KarLJ 162
 The American Scenario

Picketing may be construed as a public issue in the USA for many reasons. To cover the consequences
of picketing, the labor legislations in USA have been formulated to look into the socio-economic
interests of the working sector.

In a labor law case, the Court first held that picketing was entitled to protection under First Amendment.
Holding a ban on picketing to influence someone to do something, the Court said: "In the circumstances
of our times, the dissemination of information on the facts of a labor dispute must be regarded as being
guaranteed within that area of free discussion by the Constitution”10

With respect to right to Strike in US, there are provisions granting the same to citizens. Under the
National Labor Relations Act, 1935, Section 7 11
specifically states the following: “Employees shall
have the right to engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection”

The main sub-provisions of the legislations aim to cover all aspects of strike and the people
participating in the strike. Some of the main aspects are with respect to the following:

a) The disparity between lawful and unlawful strikes

b) Definition for economic strikers
c) Definition for unfair labor practice strikers
d) Time bound unlawful strikes
e) Strikes upon the end of an employment contract

Conclusion

Strike is an instrument which empowers the disabled to fight when there is no constructive option left in
oppressive cases. It is a last-resort weapon taken out of exasperation. It is this weapon which offers
collective bargaining opportunities. The modern interpretation of strikes originated in the epoch of
industrial revolution and assumed its multiple types and dimensions during the Indian national
movement, which varied from bandh, hartal, protest, and they were considered a patriot’s unalienable
right and duty to protest the colonial rule. What needs to be understood is that, here the actions facilitate

10
Thornhill v. Alabama, 310 U.S. 88 (1940)
11
National Labor Relations Act, 1935, §7 (USA)
the labor conflict the parties may be employees or non-workers or both. The best solution would be to
exclude non-worker activities from straining the working relationships.

The legislations in USA cover a wide-range of dimensions unlike India, enhancing more clarity for
judiciary to give out various judicial pronouncements with respect to industrial conflicts between the
employer and employees trade unions.

In light of this, what needs to cleared is that there should not be more room for confusion and hassle
when it comes to a worker’s right to strike against an issue or undertake any picketing activities.
Picketing is also a means to express dissatisfaction, much like a strike.

It is important to take the stand for the conservation of the authenticity of the expression of labor
management relations by using them only in labor related issues. The unwarranted use in cases
involving non-labor relations needlessly complicates the problem