National Labor Relations Board (NLRB) case law has long held
that while "full" strikes constitute protected activity
under the National Labor Relations Act (NLRA), intermittent strikes
(a pattern of going out, coming back, going out again) generally
are unprotected. "Unprotected" does not mean that a labor
union is prohibited from engaging in the activity (i.e., they do
not constitute an 8(b) violation under the Act); rather, it means
employees engage in the activity at their own peril because an
employer is permitted to impose discipline on employees engaging in
unprotected activity — including termination — without
fear of violating Sections 7 or 8 of the NLRA.
On October 3, 2016, however, the NLRB's Office of the
General Counsel issued a memo to all of the NLRB's Regions
stating that the General Counsel views at least some intermittent
strikes to be protected by the NLRA, and the memo further indicates
that the General Counsel's office may be seeking to have the
NLRB change the standard it utilizes to evaluate whether such
strikes are protected. The General Counsel contends that the
"Board's present test for determining whether multiple
short-term strikes are protected is difficult to apply ... and
exposes employees to discipline for activities that should be
protected under Section 7 of the Act." Accordingly, the memo
instructs the Regions to employ a different analysis set forth in a
"model brief" when evaluating whether intermittent
strikes are protected. The analysis set forth in the model brief
would offer protection to intermittent strikes if: "(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." To the
extent a Region determines an intermittent strike warrants
protection under this framework, the Region is instructed to submit
the case to the NLRB's Division of Advice to evaluate whether a
complaint should issue. In other words, the General Counsel is
looking for cases to bring to the NLRB to have it change
long-standing law depriving intermittent strikes of NLRA
This is yet another example of the current NLRB's aggressive
push to diminish NLRA protections available to employers. We will
update the blog as developments unfold on this front.
As OSHA's enforcement relating to employee cell phone use gains more notoriety, it can be expected that it will have a significant collateral impact on law enforcement at all levels to address this hazard.
Seyfarth Synopsis: Employers in California: be aware and prepare for new laws increasing minimum wages and mandating overtime pay for agricultural employees; expanding the California Fair Pay Act to race and ethnicity and to address prior salary consideration; imposing new restrictions on background checks and gig economy workers; and more. Small employers will be relieved the Governor vetoed expanded unpaid parental leave, but it will likely return in future sessions.
Just when employers were becoming more comfortable with the complex and lengthy Form I-9, Employment Eligibility Verification that was issued in 2013, the federal government has decided to turn up the heat.
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