In anticipation of a strike by the Harvard Graduate Students Union (HGSU-UAW), Harvard University’s Managing Director of Labor and Employee Relations published the following message on the University’s public website:

October 02, 2026

Dear HGSU-UAW,

I am aware that HGSU has opened up voting regarding authorization for another strike. As I am sure you know, federal labor law does not protect intermittent strikes – that is, strikes that start, end with members returning to work, and then restart in support of the same goals.

When HGSU unconditionally ended the strike last spring, it stated publicly that its “fight” for a new contract was not over and that it was prepared to strike again. The recent announcements about a second-strike authorization vote cite the same issues that HGSU says were unresolved when it ended its strike a few months ago. You confirmed at the bargaining table that a second strike would be in support of the same issues from the first strike.

The University believes a second strike in these circumstances would not be protected under the law. I encourage HGSU to fully inform voters that if a second strike occurs and it is intermittent, participating members would not have the legal protections they had while striking this past Spring.

In our view, this is a misinterpretation of existing law.

The doctrine of “intermittent strikes” emerged from a 1949 Supreme Court decision known as Briggs-Stratton. In that case, the union conducted twenty-seven work stoppages in less than five months. Each strike was planned as a “surprise” – with no notice given to the employer of either the strike itself or the particular union demands it was intended to enforce. As the Court put it, “[t]he employer was not informed during this period of any specific demands which these tactics were designed to enforce, nor what concessions it could make to avoid them.” Given these facts, the Court held that federal labor law did not protect this “intermittent unannounced stoppage of work to win unstated ends.” Although the text of the NLRA provides that nothing in the statute should be read to “impede or diminish in any way the right to strike,” the Court reasoned in Briggs-Stratton that interpreting the NLRA to protect this pattern of strike activity would be inconsistent with congressional intent because it would render the employer “disabled from any kind of self-help to cope with these coercive tactics of the union.”

Since Briggs-Stratton, labor scholars, union lawyers, and worker advocates have critiqued the intermittent strike doctrine on the ground that it substantially undermines the central federal labor law right, the right to strike, without any justification in the text of the governing statute. It is nonetheless true, as the University states, that the National Labor Relations Board continues to consider “intermittent strikes” to be outside the protection of the National Labor Relations Act. It is also true that workers who take part in intermittent strikes can be subject to discipline.

But the University is wrong to characterize the HGSU strikes as intermittent. The fact that a union strikes two times in a six-month period, over the same subjects, does not render the second strike intermittent. Indeed, the governing case on this subject, Walmart Stores, decided by the first Trump Board, makes this point explicitly when it concludes: “We are certainly not suggesting that employees who go on strike cannot go on strike again based on even the same demands as the first. Deciding later that circumstances warrant going on another strike is fundamentally different than planning a strategy to strike, return to work, and strike again for a more damaging effect with less risk.” 

What, then, are the defining features of an intermittent strike under extant law? Intermittent strikes are characteristically short, repetitive, often conducted without notice to the employer, and end quickly enough to deny the employer the ability to either respond to the employees’ demands or to defend against the strike by hiring replacements. For example, to explain why the strikes in the case before it were intermittent, the Walmart Board wrote:

In situations like we have here, employees are acting on a plan to strike at times that would most negatively impact the employer . . . and, fully intending to strike again, quickly return to work before they could realistically lose their jobs to permanent replacements. This random economic warfare deprives employers of their responsive defense of permanently replacing strikers. The nature of these stoppages also makes it extremely difficult to address any of the employees’ specific demands to prevent future economic harm in future surprise strikes.

Or, as one Board decision cited in Walmart held, “a multiplicity of little ‘hit and run’ work stoppages deliberately calculated . . . to ‘harass the company into a state of confusion’” are intermittent. Or, as another Board decision cited in Walmart held, a union plan to strike four times in four weeks – going out on the weekends, returning to work during the week, and then going out again the next weekend – was intermittent.

None of the facts that the Board has found illustrative of intermittent strikes are present in the HGSU context. Perhaps most important, the strike last spring was long enough to put the strikers at risk of permanent replacement. There was no surprise, and indeed long periods of notice were given by the union to the University in both instances. The first strike was not so short as to make it difficult for the University to address the employees’ demands. These are not hit and run strikes. There simply are (potentially) two strikes, within six months of each other, on similar subjects. That is not enough to make them intermittent within the meaning of the law. 

Walmart did create a new evidentiary pathway through which an employer can establish that strikes are intermittent: when there is “direct evidence of a plan to strike, return to work, and strike again, repeatedly” then the employer need show nothing more. If the University has such evidence, it could establish that the HGSU strikes qualify as intermittent. But direct evidence that HGSU was committed to continue fighting for a new contract at the end of the first strike is insufficient. That is simply not “a plan to strike, return to work, and strike again, repeatedly.”

Finally, we are aware that the current President’s appointees to the NLRB, whom he can now remove at will, might reach a different conclusion than we do were they presented with the question of whether the HGSU strikes are intermittent. We urge the University not to seek such a decision. A new holding on the definition of intermittent strikes, by this NLRB, would redraw the boundaries between protected and unprotected strikes in a way that would have profound implications far beyond Harvard University. The impacts of such a decision would be felt most acutely by low-wage workers – Walmart employees, fast food workers, Amazon warehouse workers – for whom participation in a protracted strike is simply unaffordable. For these workers, an overly broad interpretation of “intermittent strike” would effectively mean the end of any right to strike at all. We trust that the University will not seek to improve its bargaining position with its graduate students by pursuing a decision from this President’s NLRB that would extinguish meaningful labor rights for hundreds of thousands of working people.