
The memorandum included a model brief outlining the GC’s position. The brief first sets forth a distinction between intermittent strikes—which involve striking, returning to work, and striking again—and partial strikes—which involve a refusal to perform certain tasks while working. The brief then advocates for a change in the law to provide protection to employees engaged in such strikes if the following conditions are met:
(1) The strike involves a
complete cessation of work and is not too brief or too frequent,
(2) The strike is designed to
impose economic pressure on an employer, and not to impose new terms and
conditions of employment, and
(3) The employees’ purpose for
striking is made known to the employer. Notably, the GC stated that adopting
this change would increase the rights of non-union
workers to engage in protected strikes.
While employers may not fully appreciate the position for
which the GC advocates, there is no denying that the issue is as relevant as
ever. Nationally, the “Fight for Fifteen” amongst fast food and retail workers
has spawned several one-day strikes that have severely disrupted operations and
left employers and employees with unanswered questions about their rights
during limited strikes. Locally, the Minnesota Nurses Association recently
engaged in multiple strikes of varying duration during the same contract
dispute with Allina Health System. If the legal changes advocated by the GC
were in effect, the changes likely would have altered the strategies implemented by both the
unions and employers involved in these labor disputes.
While the GC’s position is not yet Board law, employers
should still take notice. Many of the GC’s enforcement priorities in recent
years have eventually been legitimized by the Board. Employers, both unionized
and not, should be mindful of this new position advocated by the GC when
responding to intermittent or partial strikes by their employees. If they
discipline a worker engaging in this tactic, they may find themselves under
investigation by the NLRB, and the target of the GC’s most recent priority.
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