Short-Term Strikes May Be Given Same Protections as Long Work Stoppages

National Labor Relations Board attorney calls to extend law to cover intermittent strikes

By Allen Smith, J.D. Oct 27, 2016
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Short-term strikes—a day here, a day there—are disruptive to businesses, which is precisely why worker organizations like the Fight for $15 movement have embraced them. Now short-term strikes are likely to become more common because of actions taken by the National Labor Relations Board's (NLRB's) general counsel (GC).

The GC recommended a change in the interpretation of the National Labor Relations Act (NLRA) that would extend the law's coverage to short-term and intermittent strikes, according to Michael Lotito, an attorney with Littler in San Francisco. He called the GC "one of the most powerful people in the government."

The GC made the recommendation in a memo and accompanying model brief to NLRB regional directors, officers-in-charge and resident officers on Oct. 3. The GC directs the regional directors, who run the local offices. Officers-in-charge and resident officers run subregional offices or are serving in a temporary capacity, Lotito explained.

"The actions of the GC are unreviewable. There is no accountability," Lotito said, calling the memo and the brief "a very big deal."

Expanding the Law's Coverage

The present test for determining whether multiple short-term strikes are protected "exposes employees to potential discipline for activities that should be considered protected under Section 7 of the act," the GC memo stated. "The general counsel has therefore decided to ask the board to clarify and modify the law regarding intermittent and partial strikes."

The GC also issued a model brief and encouraged regional directors and others to use it to expand the law's coverage. The brief noted that multiple, short-term walkouts are becoming more common, especially by nonunionized workers.

These employees "do not have meaningful channels in which to air complaints about working conditions, such as through contract negotiation or a grievance procedure, and are increasingly resorting to multiple, short-term strikes to pressure their employers to improve their working conditions," the GC office said in the brief.

Court Decisions Questioned

Current law doesn't protect intermittent strikers, but the GC said that should change.

Under current NLRB law, employees who strike multiple times risk being subject to discipline for engaging in unprotected intermittent strikes, especially when the strikes relate to the same labor dispute. 

The brief noted the following lower court decisions that found that intermittent strikes aren't protected by the NLRA:

  • Two surprise 15-minute work stoppages four weeks apart in support of contract negotiations were unprotected (Donovan v. NLRB, 520 F.2d 1316 (2d Cir. 1975)).
  • Multiple weekend strikes in support of contract negotiations were unprotected (Swope Ridge Geriatric Center, 350 NLRB 64 (2007)).
  • Waves of short strikes at different offices over nine days during contract negotiations were unprotected (Pacific Telephone & Telegraph Co., 107 NLRB 1547 (1954)).

And in Auto Workers Local 232 v. Wis. Emp. Relations Bd. (Briggs-Stratton), 336 U.S. 245 (1949), overruled by Lodge 76, Machinists v. Wis. Emp. Relations Comm'n, 427 U.S. 132 (1976), the Supreme Court considered the intermittent strike tactics at issue to be indefensible. In that case, the union caused 26 work stoppages over four and a half months. It called special meetings during working hours to put pressure on the employer during negotiations for a new contract. The union made the meetings a surprise and the employer had no notice as to when or whether the employees would return to work.

However, while the Supreme Court ruled in the employer's favor in Briggs-Stratton, the high court since has invited the board to confine that case to its unique facts and the case itself has been overruled, the GC noted.

Times have changed, the GC added, saying that employers now have access to workers from temporary agencies, which can make intermittent strikes less painful.

Marching Orders to and from GC

Lotito, who co-chairs Littler's Workplace Policy Institute (the firm's government affairs branch), said that actions such as this memo are why Sen. Lamar Alexander, R-Tenn., "has a bill [S.288] that would put some controls on the GC."

In the meantime, NLRB staff from local to regional offices "will now all be looking for factual patterns to file complaints and try the case[s] to get this fact pattern to the NLRB for a decision," Lotito said. "And this board will affirm what the GC wants to do."

The current GC's term expires in November 2017. 

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