NLRB GC Seeks to Change the Law on Short Duration Strikes to Disadvantage Employers

The National Labor Relations Board’s General Counsel’s office said the agency’s test for deciding whether multiple short-term strikes were protected is difficult to apply. So he is asking the NLRB to “clarify and modify” the law. Along with the memo was a model brief, which regional officials were asked to include in filings with the NLRB and administrative law judges, with a proposed framework to evaluate whether intermittent and partial strikes are protected under the NLRA.

Taken together the documents signal an intent from the General Counsel’s office to broaden protections for workers who take part in short-duration strikes.

One-day and other short-term strikes are most often used by unions during contract negotiations. Fast food, retail, and other non-union workers are also increasingly using these tactics in their campaigns for higher wages and better working conditions, i.e. Fight for 15, an effort aimed at raising the minimum wage and backed by the SEIU. In one instance last November, the Fight for 15 group launched a one-day strike in 270 cities across the US.

Legally, both union and non-union workers who take part in a short-duration strike have the same protections under the NLRA as do workers who engage in long-term strikes. Where things get murky is when workers engage in multiple, short-term strikes.

For decades, the NLRB has held workers who strike multiple times, especially in the same labor dispute, can face discipline, including termination. Under the General Counsel’s proposal, multiple short-term strikes would be protected if they involve a complete work stoppage and aren’t so brief and frequent that they amount to work slowdown; if they are not designed to impose permanent condition of work but rather to exert economic pressure; and if the employer is aware of the workers’ reason for striking.

Employers are left wondering how realistic is it to engage in permanent replacements or subcontracting for a one-day strike, or a one-hour strike, or a 45-minute strike every other day? Also, what about replacement worker contracts that require a minimum of 5 days pay to the replacement workers – employers will need to pay replacement workers despite regular workers returning from strike only one day after the strike began.

This is an issue that not many companies are following, but it is important since strikes, especially ones lasting a very short amount of time, are increasing. Hopefully this law will not change before a new, President Trump-appointed General Counsel takes office.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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