Wouldn’t It Be Nice: Searching for Clarity in Intermittent Strike Adjudication

Abstract

An employee’s right to strike has been a fundamental piece of American labor law policy since its codification in the 1935 National Labor Relations Act. Recently, however, strike activity has undergone a dramatic transformation in response to rapidly declining rates of unionization. Instead of numerous union members striking for weeks on end, small numbers of employees have engaged in surprise one-day strikes in an attempt to maximize the potential effect on employers despite the strike’s brief nature. Such strikes, often referred to as “intermittent strikes,” fall into an area of legal ambiguity due to prior inconsistent adjudication. As the law currently stands, it is difficult to determine when these brief strikes warrant National Labor Relations Act protection or when an employee could be subject to discipline for engaging in the activity. In October 2016, the Office of the General Counsel for the National Labor Relations Board proposed a new framework to promote clarity in this area of labor law. In December 2017, after the administration change, the newly sworn-in General Counsel of the National Labor Relations Board rescinded that proposed framework, relegating intermittent strikes back to their previous state of legal uncertainty. This Note argues that while the clarity offered by the rescinded framework would have been a welcome addition to intermittent strike law, that framework still left some areas too ambiguous to provide a workable standard and may have been overly favorable to employees. With a few minor changes, the Office of the General Counsel could propose a new framework that employers and employees on both sides of the political spectrum find agreeable, while also providing much needed clarity.