Organizers have called for a National General Strike Against the Policies of President Trump on February 17. Many of our clients are asking what their rights are in the event some of their employees choose to participate. Although the aims of the strike appear “political” in nature, a very broad reading could include protesting against the wages and working conditions of employees, especially low-wage employees.
Unless a strike is deemed “intermittent,” a walk-out over wages, hours, or working conditions can be “protected concerted activity” under the National Labor Relations Act. In such circumstances, employers are not permitted to fire or discipline employees who engage in the strike. While the February 17 strike is arguably not over wages, hours, or working conditions, we think it prudent for employers to treat it as protected concerted activity. Meaning that employees who participate should not be disciplined as a result. We reached a similar conclusion with respect to the massive immigration protests on May 1, 2006. Some recent events lead us to believe this conservative approach to this issue remains valid.
Employees who walk off the job on February 17 are very likely to be found engaged in protected activity. In a recent decision, a unanimous National Labor Relations Board (NLRB), including now-Acting Chair Miscimarra, found that a one-day walkout in support of Fight for Fifteen did not constitute an “intermittent” strike, and therefore was protected activity. EYM King of Mo., 365 NLRB No. 16 (January 24, 2017). The Board, in that case, found that it was unreasonable to hold the strike to be intermittent and unprotected based on a campaign around the country including work stoppages both before and after the walkout at issue. Rather, the Board said it was consistent with a notice provided by the Workers Organizing Committee of Kansas City, stating the strike would only last one day. Because the workers were not shown to have engaged in other strike activity, their actions were protected, and the Board ordered discipline against them rescinded. While the particular facts of EYM are distinguishable from the February 17 situation because they were more closely related to working conditions, and, notably, the workers who participated provided advance notice that they would be off the job for only one day, the Board’s unanimous decision shows bi-partisan support for a relatively broad reading of employee rights in this area.
Further, the general counsel recently issued a directive, OM 17-02 (October 3, 2016), to the NLRB regional offices, instructing them to seek “clarity” in potential intermittent strike situations by urging NLRB members to broaden employee protections in intermittent strike situations. A model brief for use by the regions was appended to this operations memorandum. That brief argues the Board should protect even multiple strikes over the same labor dispute, with some limited exceptions. It takes the position that, by not protecting intermittent strikers, the Board has diluted employee rights under Section 7. Once again, the GC’s analysis turns on the existence of a “labor dispute” being the cause of the walk-out. However, one can easily see the general counsel taking cases of striker discipline from February 17 before the NLRB as test cases in an attempt to expand the boundaries of worker protections.
To conclude, employers may have the right to discipline employees for participation on February 17 if they take the position the strike is unrelated to wages, hours, and working conditions. Similarly, there may be a right to discipline for failing to give notice of striking. However, our advice, admittedly conservative, is that employers who take such action may be “buying” expensive test cases before the NLRB. We think a better approach is to communicate with employees requesting notice if they intend to participate on February 17, so alternate arrangements can be made. Employers should also keep track of which employees participate, not as a form of discipline, but to have a record in case further strikes occur, which may make such activities “intermittent” and thus unprotected.
In the event an employer wishes to take a more aggressive approach, and potentially discipline employees for striking on February 17, they may have the right to do so. However, they should seek legal counsel about their specific situation before taking any such action. Once again, it may be best to take a low-key approach to what we hope will be essentially a one-time event.