Seyfarth Synopsis: The Office of the
General Counsel for the NLRB has asked the Board to adopt a
sweeping new test that will significantly broaden the protections
granted to employees who engage in frequent, short-term strikes
during the same labor dispute.
In a purported effort to update existing law to meet the
realities of modern labor disputes, the Office of the General
Counsel for the National Labor Relations Board last week announced
that it will ask the Board to adopt a new test for determining
whether intermittent and partial strikes are protected under the
National Labor Relations Act. The GC distributed to all regional
directors and officers a
15-page model brief to be inserted into filings before the
Board and ALJs laying out its new test and also urges the Board to
distinguish between "partial" and
"intermittent" strikes (as the terms have be used
interchangeably over the years).
Under the new test, the Act would explicitly protect employees
who engage in multiple short-term strikes, particularly those
addressing the same labor dispute, where: "(1) they involve a
complete cessation of work, and are not so brief and frequent that
they are tantamount to work slowdowns; (2) they are not designed to
impose permanent conditions of work, but rather are designed to
exert economic pressure; and (3) the employer is made aware of the
employees' purpose in striking." Under current Board law,
workers who strike multiple times, especially in the same labor
dispute, can lose the Act's protections and face discipline or
Citing the need for certainty in the face of the increasing use
of intermittent strikes by non-union workforces, as well as
employers' increasing use of temporary employees, the GC's
proposed test significantly broadens the protections granted to
employees who engage in intermittent and partial strikes, while
providing little guidance for employers as to how existing methods
for addressing strike activity could reasonably combat the
disruptions and uncertainty caused by frequent, short-term
The GC notes its test "recognizes that there is a point at
which intermittent strikes are so frequent and brief that they
enable employees to effectively reap the benefits of a strike
without assuming the attendant risks," citing examples of a
ten-minute strike every thirty minutes, or an hourly work stoppage
once employees reach daily production quotas. Beyond these extreme
examples, however, the GC provides little in the way of practical
limitations as to how frequently employers may strike during the
same labor dispute before losing the Act's protections.
Is a 45-minute strike every day protected? A two-day strike
every week? As of now, it's anybody's guess.
The GC also claims that employers are "not helpless in the
face of such strikes," having traditional strategies of
permanent replacement, lockouts, subcontracting, etc. at their
disposal. But the question remains how practical or effective such
traditional strategies would be in the face of frequent, short-term
strikes multiple times per week or per month.
While we do not know whether the Board will ultimately adopt the
GC's proposed test, employers can expect to see these arguments
raised in future NLRB proceedings. In the meantime, employers
should consult with counsel regarding lawful strategies for
minimizing risk and potential disruptions caused by employees'
and unions' increasing use of intermittent or partial strikes
during labor disputes.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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