NLRB: Solo Strike May Be Protected Activity

Randi Klein Hyatt
Randi Klein Hyatt

The National Labor Relations Board’s (NLRB) Division of Advice recently published an advice memorandum clarifying that the National Labor Relations Act (NLRA) can protect employees who engage in a solo strike.

The memorandum centered on a former employee who was terminated from a Papa John’s restaurant in South Carolina after taking part in an August 2016 “Fight for $15” rally organized by several groups, including the Southern Workers Organizing Committee (SWOC) labor union. In requesting time off to attend the event, the employee made clear that she was not protesting her employer’s own practice.

The employer, however, required that employees give seven days notice for schedule changes and time-off requests.  Because the employee failed to meet that requirement, the employer rejected her request for time off, and told her that she would lose her job if she failed to show up for work as scheduled.

After that conversation, a SWOC organizer arrived at the restaurant and presented the employer with a strike notice. Among other things, the strike notice stated that the employee was “also striking to demand $15 an hour wage and the right to join a union without retaliation.”  Nevertheless, the employer went forward with its decision to terminate the employee for job abandonment.

The NLRB’s Reasoning

The Division of Advice upheld the employee’s right to assist a labor union by engaging in a strike, even if that strike was essentially a one-woman show.

The Division acknowledged that employee conduct must be concerted and pursued either for collective-bargaining purposes or for other “mutual aid or protection” in order to be protected under Section 7 of the NLRA.  Relying on the Supreme Court’s 1984 decision in NLRB v. City Disposal Systems, the Division stated that the employee’s actions met the “concerted” requirement because they were done to help SWOC, a labor union, further its organizing campaign.

The Division further found that the employee’s solo strike, while not referencing a specific dispute between employees and employers, represented an effort to raise wages for herself and her fellow employees in other low-wage industries. The division reasoned that this common goal meant that the employee’s solo strike satisfied the “mutual aid or protection” requirement.

The Division then instructed the Board region to consider whether the employer had discriminated against the employee in how it applied its attendance and punctuality policy.

Kollman & Saucier acknowledges and appreciates the significant work that law student intern, Yitzchak Besser, put into preparing this blog post.

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