Section 13 of the National Labor Relations Act says that “[n]othing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike.”  The Supreme Court has instructed that this protection should be given a “generous interpretation.”  For a long time, however, the law governing strikes has been quite ungenerous as applied to intermittent strikes.  The Trump NLRB just made the problem worse in its recent decision in a Walmart case.  The burden of this trend in the law has the potential to diminish the right to strike to a vanishing point for many low-wage workers, especially those in the retail and fast food sectors.  Because low-wage workers are disproportionately people of color, fixing the law in this area is a matter of racial equity.

Despite the clear language of Section 13, the Supreme Court in UAW Local 232 v. Wisconsin Employment Relations Board (Briggs & Stratton), 336 U.S. 245, 255-57 (1949), opened the door to a big limitation on the right strike.  In Briggs & Stratton, the Court held that 27 work stoppages in a 5-month period to win “unstated ends” were not protected by Section 7.  Despite the unusual nature of the facts in that case, the Board went on in the ensuing decades to extend the denial of protection to a broad range of intermittent strikes.  The Board denies protection to strikers who “engage in repeated work stoppages limited to a portion of the work day,” such that the strikers evade the “risk of replacement and loss of pay.”  Polytech, Inc., 195 NLRB 695, 696 (1972).

Last month, the Trump NLRB further expanded the definition of an unprotected intermittent strike.  In Walmart Stores, Inc., 368 NLRB No. 24 (July 25, 2019), the Republican majority held that Walmart lawfully disciplined and discharged employees associated with OUR Walmart who walked out 4 times over a 13-month period.  The Board found the “Ride for Respect” walkouts to constitute “hit and run” and “surprise” work stoppages that failed to pass the test for a “genuine” strike.  The Board dismissed the fact that 29 of the 58 effected employees had only engaged in one work stoppage – somehow finding that their conduct also constituted unprotected intermittent striking.

Member McFerran wrote a strong dissent that demonstrated that the majority decision was inconsistent with Board precedent.  Specifically, she argued that the Board has withheld protection from strikers only where workers remain on the job but repeatedly refuse to abide by the employer’s work schedule or where the purpose of the repeated work stoppages is to harass the employer “into a state of confusion.”  Here, McFerran argued, the work stoppages were months apart, each lasted several days, which would have allowed the employer to replace employees, if it had wanted, and involved some employees only once.  McFerran concluded that the majority had “trampled” on the right of the Walmart workers involved in the case and threatened to deny the right to strike to any of Walmart’s 1.3 million workers who wanted to walk out in the future.

I agree with McFerran’s characterization of the majority decision and her warning about its potential to preclude any strike activity by the employees of the world’s largest employer.  I think the problem with the Board’s intermittent strike precedent, however, goes beyond the Trump Board’s expansion of the doctrine.  I believe that the Board’s protection only for what it deems “genuine” strikes raises serious equity issues for many low-wage, non-union workers, effectively denying them the right to strike.

Think about what it takes for workers to engage in a “genuine” strike; that is, a strike in which all the workers walk off the job and stay off until the underlying labor dispute is resolved, either by agreement or the union’s capitulation.  Because employers have the right to permanently replace economic strikers, a genuine strike is likely to go on for a long time, unless workers are highly skilled and therefore difficult to replace.  To sustain a long strike, workers have to either be able to go without a paycheck for a substantial period of time or have access to a well-resourced strike fund.  That makes a traditional strike a viable option primarily for well-paid workers or workers who are represented by large unions with significant reserves.

It is easy to see why the intermittent strike is an attractive strategy for all workers. The limited financial hit of periodic, short-term work stoppages is much easier to endure than a protracted work stoppage.  Moreover, workers can use these strategies to put more pressure on employers by garnering more media attention.  Each time they launch a “day of action” or show up en masse at a shareholder meeting, they garner repeated news coverage, whereas the media often loses interest in long-term strikes after the initial walk out. Note that none of these rationales involve sowing confusion or chaos in the workplace.

The advantages of the intermittent strike are especially important for low-wage, non-union workers.  In fact, because of their limited financial reserves and lack of access to supplemental income, like strike fund benefits, an intermittent strike might be the only form of work stoppage viable for them.  That’s why it is no surprise that groups like OUR Walmart and Fight for Fifteen have been at the forefront of using this tactic.  Former General Counsel Dick Griffin tried to get the question of revisiting the intermittent strike precedent before the Board for these reasons, but Griffin ran out of time.

This isn’t to say that low-wage workers can’t effectively utilize the traditional strike.  When they are unionized, a traditional strike can be an effective economic weapon.  In the Justice for Janitors campaign, many low-wage janitors represented by SEIU went out on traditional strikes to win recognition, higher wages, and benefits across the country.  But for non-union, low wage workers, traditional strikes have not been a useful tool.

Because these low-wage, non-union retail and fast food workers are disproportionately people of color, the Board’s intermittent strike doctrine raises a serious racial equity issue.  The Board should not adopt doctrine that has the potential for such significant disparate racial impact.  Section 13 makes the right to strike the first among equals in the realm of collective action.  Access to such an important right cannot be limited only to higher paid workers who are more likely to be white.

The Board majority in Walmart justifies its holding as necessary to preserve employers’ right to permanently replace strikers.  The majority is purposely blind, however, to the impact of its decision on low-wage workers’ right to strike.  Its blindness results not only in an economic injustice but a racial one as well.

Image via United for Respect.