It is by now well settled that in the absence of unfair labor practices, an employer is legally entitled to permanently replace striking employees. While the permanent replacement of strikers is not the legal equivalent of a discharge, it’s practical effect, what with the loss of the opportunity to work and corresponding loss of wages, is often very similar.
Needless to say, the permanent replacement of striking employees will have devastating consequences on strikers and their families. Therefore, it is not uncommon for labor organizations to consider and develop tactics and strategies to minimize the potential negative legal consequences for employees and maximize the pressure that can be brought to bear on recalcitrant employers.
Sometimes strategies entail consideration of limited duration strikes. Such limited strikes, if used with broad consumer boycotts, can be an effective tool to disrupt services and production while minimizing the negative economic consequences on employees.
When considering limited duration strike activity existing law is not a model of clarity. This is the result of two competing legal principles. First, it is very clear that employees who engage in a work stoppage to protest working conditions or employer misconduct are engaged in concerted activity that is protected under federal law. Second, and on the other hand, there is no question that an employer can lawfully discharge employees who engage in repeated, short term work stoppages as part of a pattern to inflict economic harm on an employer. As a result of these competing legal considerations, case law originating with the National Labor Relations Board has been inconsistent, if not down right confusing.
It appears that NLRB decisions that have found employee concerted conduct to constitute unlawful intermittent striking have focused on situations where employees have engaged in a multiplicity of small “hit and run” strikes within a relatively compressed period of time. On the other hand, the Board still emphasizes that in the absence of contract limitations on the right to strike, a single event one time only strike to protest employer misconduct remains protected conduct which prevents an employer from taking action against such strikers.
Ultimately, the Board appears to focus on the purpose behind the particular limited duration job action. Thus, if a series of strike actions appear intended to advance some ultimate goal, for example, a better contract, it is likely the Board would find such intermittent striking unlawful and the employee conduct unprotected. Nevertheless, if the reasons behind the series of intermittent job actions appear to be prompted by protests relating to specific employee grievances or specific employer conduct, it appears the Board will find such conduct to be protected even if a series of job actions occur repeatedly, so long as the motivation is unrelated to any broader goal.
Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A.