The Building Tradesman Newspaper

Friday, October 21, 2016

NLRB legal chief: Let's define what makes a strike, a strike

By The Building Tradesman

When fast food workers walk off the job for an hour, and then do it again months later, are those brief strikes legally protected under labor law? How about when Wal-Mart workers take time off to campaign for a living wage – and let the company know in advance?

The National Labor Relations Board has been confused on such issues. Now its top enforcement officer, General Counsel Richard Griffin, is urging it to straighten out the mess.

What the NLRB decides to do about such “intermittent” strikes could be important to workers. As traditional strikes have declined – federal figures show there were only 12 strikes and lockouts, combined, in cases each affecting at least 1,000 workers, last year – the intermittent strikes have jumped.

Griffin wants the board to rule that intermittent strikes involving “the same labor dispute” – such as low pay or the right to unionize without employer interference – are legal. He says that past cases show “no compelling reasons” such intermittent strikes should be illegal.

The intermittent, repeated strikes are a particular weapon of fast-food workers, retail workers, port truck drivers, janitors, adjunct professors, warehouse workers, Wal-Mart workers, airport baggage handlers and cabin cleaners, and other low-paid exploited employees who seek both decent pay and the right to unionize without employer repression.

That’s left the NLRB without a strategy to address the issue, Griffin’s memo says. It has, so far, said protected strikes are single strikes, going for days or weeks, continuously. It’s gone back and forth on the intermittent strikes. But the single-strike restriction makes strikes “a brittle instrument of labor protest rather than one continually capable of being deployed in new ways to meet changing circumstances in the workplace,” Griffin says.

That should change, he adds, in a 15-page model court brief sent to NLRB regions. “The general counsel urges the board to clarify this area of law by drawing clear conceptual distinctions between partial and intermittent strikes and redefining the circumstances” when labor law protects intermittent strikes, it explains.

“Under the proposed framework, multiple strikes -- even those over the same labor dispute -- would be protected if: (1) They involve a complete cessation of work, and are not so brief and frequent 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.

“Such a framework more effectively protects the right to strike, dispenses with the unpersuasive rationales relied on in the past, and better addresses Supreme Court precedent,” Griffin’s document adds.

“The board should clarify that partial and intermittent strikes are different…based on whether strike and work coincide or are separate in point of time,” it says. If the strikes coincide with work, but the workers plan to return – and say so – they should be legal under labor law.

Until now, there’s been confusion, it adds. Sometimes the NLRB treated partial strikes as the same as intermittent strikes and sometimes it didn’t. And it didn’t like partial strikes.

At other times, “The board seems to use ‘partial strike’ as an umbrella term, encompassing anything less than a total, traditional strike…We propose defining each category according to whether strike and work coincide in point of time.

“We would define a ‘partial strike’ as the concerted withholding of some aspect of labor while continuing to perform other work, and use the term ‘intermittent strike’ to refer to situations where employees are not simultaneously working and striking,” such as in the fast food workers’ walkouts.

“The Supreme Court did not explain why it considered the intermittent strike tactics at issue in its seminal Briggs-Stratton decision to be indefensible, and it invited the board to confine that case to its unique facts. The rationales the board has articulated for finding limited strikes unprotected are either unfounded or inapplicable to intermittent strikes."

(From Press Associates)