Seyfarth Synopsis: The Office of the General Counsel for the NLRB has asked the Board to adopt a sweeping new test that will significantly broaden the protections granted to employees who engage in frequent, short-term strikes during the same labor dispute.

In a purported effort to update existing law to meet the realities of modern labor disputes, the Office of the General Counsel for the National Labor Relations Board last week announced that it will ask the Board to adopt a new test for determining whether intermittent and partial strikes are protected under the National Labor Relations Act. The GC distributed to all regional directors and officers a 15-page model brief to be inserted into filings before the Board and ALJs laying out its new test and also urges the Board to distinguish between “partial” and “intermittent” strikes (as the terms have be used interchangeably over the years).

Under the new test, the Act would explicitly protect employees who engage in multiple short-term strikes, particularly 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.” Under current Board law, workers who strike multiple times, especially in the same labor dispute, can lose the Act’s protections and face discipline or termination.

Citing the need for certainty in the face of the increasing use of intermittent strikes by non-union workforces, as well as employers’ increasing use of temporary employees, the GC’s proposed test significantly broadens the protections granted to employees who engage in intermittent and partial strikes, while providing little guidance for employers as to how existing methods for addressing strike activity could reasonably combat the disruptions and uncertainty caused by frequent, short-term strikes.

The GC notes its test “recognizes that there is a point at which intermittent strikes are so frequent and brief that they enable employees to effectively reap the benefits of a strike without assuming the attendant risks,” citing examples of a ten-minute strike every thirty minutes, or an hourly work stoppage once employees reach daily production quotas. Beyond these extreme examples, however, the GC provides little in the way of practical limitations as to how frequently employers may strike during the same labor dispute before losing the Act’s protections. Is a 45-minute strike every day protected? A two-day strike every week? As of now, it’s anybody’s guess.

The GC also claims that employers are “not helpless in the face of such strikes,” having traditional strategies of permanent replacement, lockouts, subcontracting, etc. at their disposal. But the question remains how practical or effective such traditional strategies would be in the face of frequent, short-term strikes multiple times per week or per month.

While we do not know whether the Board will ultimately adopt the GC’s proposed test, employers can expect to see these arguments raised in future NLRB proceedings. In the meantime, employers should consult with counsel regarding lawful strategies for minimizing risk and potential disruptions caused by employees’ and unions’ increasing use of intermittent or partial strikes during labor disputes.