‘More Bad News’ From Trump’s Republican-Majority National Labor Relations Board: NLRB Confirms Intermittent Strikes In Furtherance Of The Same Goal ‘Are Unprotected’
(WASHINGTON, D.C.) - The National Labor Relations Act’s (NLRA or Act) Section 7 grants to all Employees - regardless of whether they are Unionized or not - the right to engage in protected concerted activity (PCA). Accordingly, an employer may not punish or take any adverse action against a Worker because they engage in PCA. Such adverse action is an Unfair Labor Practice (ULP) in violation of Section 8(a)(1) of the NLRA.
A Strike by more than one Employee qualifies as concerted conduct that may also qualify for the protections of the Act, but not all Strikes are protected under the law.
A Strike that violates a contact’s No Strike Clause is unprotected.
Likewise, Strikes that are carried out for an improper purpose or in an improper way are unprotected, their concertedness notwithstanding.
For instance, Partial or Slowdown Strikes where Employees withhold some portion or aspect of their labor, while purporting to be working are unprotected because the law does not sanction an Employee’s receipt of pay for time he or she is actually on Strike.
Likewise, intermittent or repetitive Strikes where Employees Strike for what is typically a short time with the intention of returning to work and then of striking again later may fall outside the law’s protection because such “hit and run” guerilla tactics are not genuine Strikes and, thus, are not protected by the Act.
Employees who engage in an Unprotected Strike or who withhold their services in furtherance of an Unprotected Strike fall outside Section 7’s protections and are, thus, subject to discipline for their unprotected conduct.
Unfortunately, not all Strikes are conventional and the line that separates protected from unprotected Unconventional Strike Conduct is often blurred until after an employer takes adverse action based on that Strike and resulting litigation is concluded, placing both Employees and employers alike at risk if they have incorrectly guessed as to the protected or unprotected nature of a given Strike.
The National Labor Relations Board’s (NLRB or Board) recent decision in Walmart Stores, 368 NLRB No. 24, dated July 25th, 2019, demonstrates this point and may offer a brighter line as to whether and when repetitive work stoppages will qualify as Intermittent Strikes falling outside the protections of the law.
In Walmart, a group of Non-Union Workers banded together to form an organization calling itself OUR Walmart.
Though not officially Union-represented, these employees received substantial organizational and financial assistance from the United Food and Commercial Workers Union (UFCW) - who, at the time, claimed an interest in affecting Walmart’s working conditions and in representing Walmart’s Employees and who was actively engaged in a corporate organizing campaign against the company.
Beginning in 2011, OUR Walmart’s stated goal was to improve the working conditions of all Walmart employees.
To that end, the group engaged in various tactics for the purposes of publicizing its cause and enlisting the public’s support.
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