Is A General National Strike Protesting President Trump Protected?

Is A General National Strike Protesting President Trump Protected?

Several different sources have reported that various U.S.-based activists and labor groups are calling for a National General Strike against the policies of President Donald Trump on February 17^th, 2017.

 From The Blaze,  “An official site for the event calling for a “24-hour occupation of public space in protest of the Trump administration’s refusal to Honor the Constitution of the United States of America,” was created. The strike also has a social media presence with a Facebook event that has 23,000 interested and 14,000 committed to attending.

The “demands” of the strike listed on the event page are enumerated as follows :

1. No Ban, No Wall. The Muslim ban is immoral, the wall is expensive and ineffectual. We will build bridges, not walls.

2. Healthcare For All. Healthcare is a human right. Do not repeal the ACA. Improve it or enact Medicare for All.

3. No Pipelines. Rescind approval for DAPL and Keystone XL and adopt meaningful policies to protect our environment. It’s the only one we’ve got.

4. End the Global Gag Rule. We cannot put the medical care of millions of women around the globe at risk.

5. Disclose and Divest. Show us your taxes. Sell your company. Ethics rules exist for a reason and presidents should focus on the country, not their company.”

The strike is thus far tentatively scheduled for February 17 — the Friday before President’s Day

Guidance for CUE Members

1 From Peter List (CCAC) – “It’s my guess that, like the immigration marches of ’06, it is protected activity…especially under the current NLRB, and under the guise of protesting Trump—who is appointing Puzder, new NLRB, etc.

2 From Brian Bulger (LLAC)  “Employees who walk off the job on February‎ 17 are almost certain to be found engaged in protected activity. In a recent decision, a unanimous NLRB, including now-Acting Chair Miscimarra, found that a one day walk-out did not constitute an “intermittent” strike, and therefore was protected activity. EYM King of Mo., 365 NLRB No. 16 (January 24, 2017). The Board in that case found that it was unreasonable to hold the strike to be intermittent and unprotected based on a campaign around the country including work stoppages both before and after the walk out at issue. Rather, the Board said it was consistent with a notice provided by the Workers Organizing Committee of Kansas City, stating the strike would only last one day. Because the workers were not shown to have engaged in other strike activity, their actions were protected, and the Board ordered discipline against them rescinded.

Further, the General Counsel recently issued a directive, OM 17-02 (October 3, 2016), to the NLRB regional offices, instructing them to seek “clarity” in potential intermittent strike situations by urging NLRB members to broaden employee protections in intermittent strike situations. A model brief for use by the regions was appended to this Operations Memorandum. That brief argues the Board should protect even multiple strikes over the same labor dispute, with some limited exceptions. It takes the position that, by not protecting intermittent strikers, the Board has diluted employee rights under Section 7.

Given the EYM decision, and the current General Counsel’s position that virtually any intermittent strike should be protected, it is likely that employers which seek to impose discipline on employees engaging in a work stoppage on February 17, will face unfair labor practice charges and complaints. Especially in light of the EYM decision protecting strikers not linked to other stoppages, employers should be wary about imposing discipline for a February 17 walk-out. However, it may be prudent to build a record of employees who engage in strike activity to demonstrate the “intermittent” nature of their activities in the future.

Some employers may question whether, as political statements, these walkouts are protected.  I looked at this in 2006 in connection with the first May 1 immigration rallies. My conclusion is that the Board could pretty easily find a protected motive even in a “political” rally, and so employers should err on the side of caution when dealing with the February 17 demonstrations.”

Additional links on the event can be found here,  and here.

Women’s March organizers used twitter yesterday to call for a similar day of action that would focus on the issues of women in the workplace , although no date has been set so far.

Employers should be aware of these actions and may want to circulate this advice to your leadership teams.  CUE will continue to provide updates on these events and guidance for responding to our members.