Last month, the General Counsel’s Office (“GC”) of the National Labor Relations Board (NLRB) issued an internal memorandum announcing its intent to seek a significant change in the rules that have historically deemed “partial” or “intermittent” strikes to be unprotected under the National Labor Relations Act (NLRA). (This is currently an exception to the NLRA’s general rule that strikes are protected, no matter when they occur, unless there is a no-strike clause in an unexpired collective bargaining agreement.) In the internal Memorandum, the GC provided model arguments for General Counsel litigators to utilize in NLRB proceedings, with the ultimate goal of making intermittent strikes legal under the NLRA.
The classic “intermittent” strike (also known as a “quickie” or “in and out” strike) involves multiple waves of short strikes. In contrast, the classic “partial” strike is a work “slow-down” or “sit down” strike in which employees, working in concert, remain on the job and draw their full pay but either refuse to perform tasks or continue working on their own terms. Partial strikes almost always an element of surprise, with no prior notice given to the employer. Intermittent strikes can be with or without notice. The main difference between the two is that in the case of partial strikes, employees are simultaneously retaining the benefits of working while withholding their services as a pressure tactic against the employer. But they are similar in that both are economic weapons intended to disrupt employer operations and pressure the employer in negotiations, without causing union members to suffer the same wage losses that are inherent in traditional strike situations.
While the current rule will stand until and unless the NLRB itself accepts those arguments in a precedential decision, this development is not just of interest to private sector employers. It is also of potential concern for California public sector employers, because the California Public Employment Relations Board (PERB) closely follows NLRB developments and is, indeed, even more union-oriented than that the Obama NLRB. Moreover, California public sector unions also closely follow these developments, meaning that in the near future we are almost certain to see PERB urged to adopt the NLRB GC’s arguments. Because the last few years have seen an increase in the number of strikes by California public sector unions, California public employers would be wise to review the GC Memorandum and model brief language.
The GC Memorandum and model brief language make for interesting reading.