NLRB Considering Potentially Seismic Shift in Labor Law

  • October 6, 2016

NLRB Considering Potentially Seismic Shift in Labor Law 

A new advice memorandum was issued his week by the NLRB office of the General Counsel. NLRB General Counsel Richard Griffin has asked the National Labor Relations Board to clarify and modify the law regarding intermittent and partial strikes which have become more common recently. This change would be very problematic for employers, and continues the encroachment of the Board on long standing labor law.  (memo also found below)

This follows on the heels of another recent decision, Capital Medical Center, 364 NLRB No. 69 (August 12, 2016), in which the NLRB ruled that off-duty employees of an acute care hospital had the right to picket the hospital’s main lobby entrance, and permitting access and picketing to take place on the private property of the employer.

Looks like another emerging trend in the ever-expanding NLRB agenda.

OFFICE OF THE GENERAL COUNSEL Division of Operations-Management
MEMORANDUM OM 17-02 October 3, 2016

TO: Regional Directors, Officers-In-Charge, and Resident Officers
FROM: Beth Tursell, Acting Associate to the General Counsel
SUBJECT: Model Brief Regarding Intermittent and Partial Strikes

Employees seeking to improve their working conditions are more frequently engaging in multiple short-term strikes in disputes with employers The Board’s present test for determining whether multiple short-term strikes are protected is difficult to apply to these situations, and exposes employees to potential discipline for activities that should be considered protected under Section 7 of the Act. The General Counsel has therefore decided to ask the Board to clarify and modify the law regarding intermittent and partial strikes.

If the issue of whether an intermittent or partial strike is protected should arise in one of your cases, please use the analysis in the attached model brief to help you make a determination. If you determine that complaint is warranted under extant law, you should incorporate this model brief, as an alternative argument, into the counsel for the General Counsel’s briefs to the Administrative Law Judge and the Board. If you determine that complaint is not warranted under extant law, but might be appropriate under the analysis in the model brief, please submit the case to the Division of Advice