Intermittent Strike Tactic Could Get Boost From NLRB

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By Lawrence E. Dubé

Oct. 19 — Labor unions may become bolder about calling hit-and-run strikes against hospitals and other employers if the National Labor Relations Board adopts a new argument by the agency’s top lawyer.

NLRB General Counsel Richard F. Griffin wants members of the board to take a clear stand that federal law gives employees a right to engage in intermittent work stoppages, even if calling repeated strikes over a labor dispute is harmful to an employer’s business.

Unions already conduct one-day strikes to pressure employers, but the NLRB general counsel and lawyers interviewed by Bloomberg BNA agree that uncertainty about legal protections for striking employees has restrained unions from being even more aggressive with the tactic.

If the NLRB adopts a legal test proposed by the general counsel, businesses such as hospitals and retailers that try to keep their doors open every day may find themselves struggling to deal with a barrage of on-again, off-again job actions.

Divided Opinion on Push for Change

The general counsel has armed agency lawyers with a model brief aimed at convincing members of the NLRB to “clarify” the rights of employees. The legal argument will be presented on the general counsel’s behalf when intermittent strike actions come before the board. “[T]he time is ripe for the Board to address the uncertainties in the law and provide employees and employers much-needed guidance as to the boundaries of protected conduct,” the model brief provides.

Wesley Kennedy, a shareholder in Allison, Slutsky & Kennedy P.C. in Chicago, who represents unions, told Bloomberg BNA Oct. 18 the general counsel’s brief offers a sensible solution to a “very muddled” area of the law. “I look forward to the day the board adopts it,” the lawyer said.

But Adam C. Abrahms, a management lawyer and partner in Epstein Becker & Green P.C.'s Los Angeles office, told Bloomberg BNA Oct. 18 that expanding protection for intermittent strikes could lead to more numerous work stoppages, and much more aggressive and protracted conflict in labor disputes.

Legal Status of Intermittent Strikes Unclear

Griffin’s office distributed the model brief to regional offices, telling them Oct. 3 ( OM Memo 17-02) that “employees are more frequently engaging in multiple short-term strikes and disputes with employers,” but current NLRB law “is difficult to apply these situations.”

In the model brief, the General Counsel argues that NLRB precedents have left a “blurring of the line” between partial strikes and intermittent strikes or work stoppages.

In a “partial strike,” the General Counsel said, employees refuse to perform some tasks while accepting pay from an employer or staying on its premises or continuing to work on their own terms, rather than the employer’s. Partial strikes are generally not protected by federal law.

On the other hand, an intermittent strike is one in which employees go out on strike, then return to work, and strike again.

The general counsel said the U.S. Supreme Court has never definitively ruled on the legal status of intermittent strikes, but the board has “unjustifiably narrowed” their legal protection by suggesting that the NLRB might deny protection for strikes that harass an employer into a “state of confusion.”

In his model brief, the general counsel said strikes are intended to be disruptive, and their success “should not be a factor in determining whether they deserve protection.”

Griffin Proposes Protection for Tactic

When the general counsel’s attorneys file the model brief, they will present Griffin’s proposal that multiple strikes against an employer should be protected under the National Labor Relations Act if “(1) they involve a complete cessation of work, and are not so brief or infrequent that they are tantamount to work slowdowns; (2) they are not designed to impose permanent conditions of work, but rather are designed to exert economic pressure; and (3) the employer is made aware of the employees’ purpose in striking.”

Griffin said clarifying the law would provide “better guidance” to employers and employees alike, and would make it clear that the act’s protection extends to nonunion workers who typically do not have the union support or financial backing to weather a protracted traditional strike.

The general counsel cannot independently change board policy on the rights of strikers, and the proposal outlined in the model brief may not be considered by the board for months, since litigating the issue would require an appropriate case involving the issue to reach the board.

However, the brief shows the argument that will be presented to the NLRB, and the stakes are significant.

Challenge to Management Power

Kennedy told Bloomberg BNA that before Barack Obama became president, the NLRB often considered intermittent work stoppages to be outside the protection of the NLRA precisely because they were disruptive—“because they work.”

Griffin’s brief proposes a test that is consistent with the NLRA, which gives employees the right to strike and doesn’t expressly exclude repeated or intermittent job actions from such legal protection, Kennedy said.

Protecting employees who engage in intermittent strikes is vital because there has been a clear drop-off in the number of traditional strikes in the U.S., the union lawyer said. Employees have been overpowered by the “much stronger tactics” that employers can deploy in labor disputes, including lockouts and the hiring of permanent replacements, Kennedy said.

Kennedy said he has compared the struggle between unions and employers to a conflict between armed camps—unions equipped with tactics that are like small arms, and employers with economic powers that are like thermonuclear weapons. However, the lawyer predicted that changing the NLRB’s approach to intermittent strikes would help to restore a balance of power between employers and unions.

Kennedy argued in a 1998 article for the American Bar Association’s Labor Lawyer that protecting intermittent strikes does not unfairly disrupt employer operations, because employers can still employ powerful “countermeasures” to union tactics. Kennedy said he believes his argument is still valid, and the general counsel cites Kennedy’s argument in the model brief.

Unions already have become more creative and assertive in staging short job actions, according to Kennedy. However, he said, NLRB adoption of the general counsel’s proposed test for intermittent strikes would give unions a new level of confidence that they could ask their members to join in such actions without fear of discipline or discharge by an employer.

Concern About Repeated, Prolonged Strikes

But unions already have been aggressive about mounting short-term strikes against hospitals, Abrahms told Bloomberg BNA. Abrahms co-chairs Epstein Becker’s labor-management relationship practice and has advised hospitals and other clients on intermittent strikes.

The general counsel’s proposal would jettison years of precedent in an effort to put a “thumb on the scale” in favor of labor unions at the expense of employers, Abrahms said.

The NLRA requires unions to give notice before striking or picketing hospitals, but some unions have simply paired a strike notice with an unconditional offer that employees will return to work 24 hours after the strike starts. The hospital generally cannot deny reinstatement to employees under such circumstances, and cannot realistically arrange permanent replacements for employees during such a short period, Abrahms said.

To keep a hospital open during a strike, Abrahms said management must rely on third-party agencies to provide temporary staffing. Such agencies typically demand contracts to provide staffing for three to seven days, not one day. As a result, he said, the hospitals incur heavy expenses every time a union stages a one-day strike.

On the other hand, Abrahms said, employees who participate in brief work stoppages can exert pressure on an employer at little personal cost, particularly in institutions where employees on irregular schedules may not have been expecting to work on the day a strike is scheduled.

Until now, Abrahms said, unions have had some concern that the NLRB or courts might consider more than two or three repetitions of a work stoppage in a single labor dispute to be unprotected. But adopting the general counsel’s legal approach would mean unions could make unlimited use of intermittent strikes. Such a result, Abrahms said, could be disastrous for employers.

Noting the appearance of “flash mobs” and other short-term demonstrations at retail stores, Abrahms warned that adopting Griffin’s endorsement of intermittent strikes could lead to frequent and harmful job actions against employers.

Any suggestion that employers can use “countermeasures” against such intense pressure is naive, the lawyer said.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

For More Information

Text of Operations-Management Memo OM 17-20 is available at http://src.bna.com/js2. The model brief language is available at http://src.bna.com/js3.

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