As covered before, the National Labor Relations Board’s General Counsel, Richard Griffin, believes that intermittent strikes deserve legal protection – and announced he is seeking test cases to bring before the Board. Intermittent strikes fall into murky legal territory. Workers who strike more than once or twice run the risk of being fired for it. Yet, repeated strikes are getting more common. Griffin argues that intermittent strikes should be protected when they meet three criteria:
- No Disguised Slowdowns: “They involve a complete cessation of work, and are not so brief and frequent that they are tantamount to work slowdowns.” Striking for 10 minutes every half-hour would not be protected, but a series of one-day walkouts would. The general counsel suggests that strikers should not “reap the benefit of a strike without jeopardizing pay or risking replacement.
- No Usurping the Boss’s Authority: “They are not designed to impose permanent conditions of work, but rather are designed to exert economic pressure.” Leaving work after seven hours in order to establish a seven-hour day would not be protected, but boycotting overtime or weekend work to exert economic pressure on the company might be.
- The Point is Clear: The employer would have to be made aware of the employees’ purpose in striking.
One reason Griffin is urging this update is to “address changed industrial conditions – including the rise of worker movements outside the traditional collective bargaining model.” Non-union workers – such as the fast food workers, retail janitors, and airport workers who have walked out on recent, repeated short strikes – don’t have grievance procedures or the ability to sit down and negotiate with management. They typically earn less than union members, Griffin points out, and do not have access to strike funds, making it more difficult to pull off longer strikes.
Since when does the amount of money an employee makes, or an employee’s ability to tap into strike funds determine whether a strike is (or should be) lawful? Either these faddish intermittent strikes have always been lawful or are not (now) lawful. There is no reason to change the law because of “a rise in worker movements outside the traditional collective bargaining model.” If it is outside the traditional governance of the National Labor Relations Act, then it is unlawful. Should looting also be made legal, since there has been a rise in that, too, over the past few years?
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 email@example.com.