On Intermittent Strikes, Labor Board's Top Attorney Cites Labor Notes

A lot of us probably try to stay off the government’s radar. But this time, we appreciate the attention. In what may be a first, the top prosecutor for National Labor Relations Board cases recently cited a Labor Notes article.

In an October brief, NLRB General Counsel Richard Griffin argued 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. Walmart, for example, has disciplined and fired workers for engaging in multiple one-day strikes, months apart. Yet repeated strikes are getting more common.

Griffin quoted Robert Schwartz’s “One-Day Strikes: A Word to the Wise":

More and more unions are turning to one-day or other short-term strikes to add punch to contract campaigns,” Schwartz wrote. “Walmart, fast food, and other non-union workers have also used the tactic to demand changes in wages, working conditions, and safety, and to protest discharges.

So far the NLRB has ruled in these workers’ favor—but Walmart has been able to drag out the cases for years. “If there was actually a level of clarity with it, Walmart wouldn’t be able to use it as a distraction,” said Dan Schlademan, co-director of OUR Walmart.

The new brief argues that intermittent strikes should be protected when they meet three criteria:

1. 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.”


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2. 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.




3. The point is clear. The employer would have to be made aware of the employees’ purpose in striking.

One reason the general counsel 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, the brief points out, and don’t have access to strike funds, making it more difficult to pull off prolonged strikes.

The general counsel also argues it’s easier than it used to be for employers to recruit replacements, thanks to the growing pool of temps and the proliferation of strikebreaking firms.

Buy Bob Schwartz's book No Contract, No Peace, $20.