On October 3, 2016, the Office of the General Counsel (OGC) for the National Labor Relations Board asked the NLRB to clarify and broaden the protection afforded employees who engage in intermittent and partial strikes.

In a memo issued to regional directors and officers, the OGC noted that the present test for evaluating such strikes is confusing and unwieldy, despite the fact that employees are “more frequently engaging in multiple short-term strikes.”1 This confusion, according to the OGC, leaves employees exposed to discipline for conduct that should be protected under Section 7. The OGC accordingly requested that the NLRB take up the question and modify precedent to explain when partial and intermittent strikes will be deemed protected activity.

In an effort to set the stage for NLRB input, the OCG also distributed a model brief to be used by counsel if this issue arises in a pending matter.2 If counsel feels that a complaint stemming from a partial or intermittent strike is appropriate under existing law, he or she should include the model argument as an alternative ground for protecting employee conduct.3 The 15-page model brief urges the NLRB to differentiate between partial and intermittent strikes. It proposes new definitions and massages current interpretations of precedent. The brief argues that protection should explicitly extend to multiple strikes (including those addressing the same labor dispute) where: “(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.” According to OGC, this more expansive framework is justified to protect strikes while honoring precedent, to remove lingering uncertainty about the protection of multiple strikes, and to reflect changed industrial conditions.5

The OGC's request to the NLRB and proposed brief clearly signal increased efforts to expand protection for strikers. If confronted with partial or intermittent strike activity, employers should remain aware of General Counsel’s position and should consult counsel.