The Next NLRB Bombshell: Protecting "Quickie Strikes" by Nonunion Workers

Employment Law

Though it would seem the Obama National Labor Relations Board has already staked out virtually every controversial pro-labor position imaginable, General Counsel Richard Griffin this week laid the groundwork for a potential Clinton NLRB to overturn years of precedent in the sensitive area of intermittent strikes.  An intermittent strike is one that takes place in several brief time frames, exposing an employer to constant disruptions that are difficult to remedy with a temporary workforce or other solutions.  Since 1954, the Board has held that employees who engage in such strikes are not protected against discipline or termination by the employer.  This week, Griffin sent a memorandum to the NLRB regional offices suggesting they find a case to be used to raise the issue. The memorandum included model language that could be used in a brief to the Board.  Griffin suggests an approach that would protect intermittent strikes as long as the strikers completely stop working (as opposed to a slowdown) and let the employer know why they are striking.  Extremely brief strikes would continue to be unprotected, but little guidance is provided other than examples of stoppages of ten minutes or hourly stoppages.  In proposing the change, the brief would further state: 

"[S]uch a change is warranted to address changed industrial conditions.  One significant change is the rise of worker movements outside the traditional collective-bargaining model.  These non-union workers 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. Such workers typically earn less than their unionized counterparts and do not have access to supports that make a protracted traditional strike a financially viable option, such as union strike funds.  Given these realities, the time is ripe for the Board to clarify the law on intermittent strikes and extend the Act’s protection to such strikes, except in certain limited circumstances.  At the same time, many more employers today have ready access to short-term staffing solutions during strikes as compared to [previous eras]."