One-Day Walkouts: Protected Activity or Unprotected Absenteeism?

Over the last two years various community activist groups—many backed by labor organizations—have implemented aggressive, public strategies designed to disrupt the workplace and put pressure on employers, especially in the retail and fast food industries. The groups most often protest for higher wages and utilize street-side protests, media blitzes, in-store “flash mobs,” and periodic employee walkouts. These “single shift” walkouts, and the attempts by employers to address the disruption that they create, raise significant questions under the National Labor Relations Act (NLRA).

Behind these activist groups are labor unions, primarily the United Food and Commercial Workers (UFCW) and the Service Employees International Union (SEIU). The strategy is tried and true: Identify a social issue that publicly resonates (such as a “living wage”); rally people around it; commence a card-signing initiative; and attempt to organize the workplace. Naturally, employers want to know whether employees engaging in these activities are protected by federal labor law.

Single-shift or intermittent walkouts by employees are almost impossible to prepare for. While all absenteeism is problematic, sporadic, short-term absences are designed to create operational havoc. Employers have a legitimate interest in maintaining productivity and enforcing reasonable time-and-attendance policies. A significant legal issue exists, however, as to whether these multiple (albeit short in duration) walkouts occurring over a long period of time should be considered “protected” strikes (or concerted activity) under the NLRA, or whether they instead constitute unprotected intermittent strikes.

The intermittent strike analysis is complex. A walkout becomes an intermittent strike when it “is part of a plan or pattern of intermittent action which is inconsistent with a genuine strike or genuine performance by employees of the work normally expected of them by the employer.” The involvement of a union increases the odds that a “plan” or “pattern” exists. As in other protected concerted activity litigation, the employer must prove that the concerted activity is not protected by Section 7 of the NLRA. As one labor board judge observed, “The Board has not articulated a rigid framework for analyzing whether a series of strikes constitutes unlawful intermittent strikes.” Dallas Glass, No. 19-CA-078239, JD(SF)-12-13 (ALJ 2013). Instead, the National Labor Relations Board (NLRB) has looked at a number of factors, including:

• the frequency and timing of the strikes;
• whether the strikes were part of a common plan;
• whether there was union involvement;
• whether the strikes were intended to harass the employer into a state of chaos;
• whether the strikes were aimed at distinct acts of the employer; and
• whether the strikers intended to reap the benefits of strike action without assuming the vulnerabilities of a forthright and continuous strike.

Under this framework, cases involving sporadic strikes turn on fact patterns, not bright lines. This is especially true with regard to strike number and frequency. In finding two walkouts occurring in a three-month period did not establish a “pattern” or recurrence sufficient for the walkouts to lose Section 7 protection, the Board noted there is “no magic number” as to how many work stoppages must occur before they become recurring. Robertson Industries, 216NLRB No. 62 (1975). The Board, however, has also held as unprotected refusals to work weekends for four weeks in a row. Honolulu Rapid Transit Co., 110 NLRB No. 244 (1954). Likewise, in Swope Ridge Geriatric Center, 350 NLRB No. 64 (2007), where the activity was clearly part of the union’s bargaining strategy, the Board found two work stoppages combined with a strike notice for a third that was issued only one day after the first strike ended was unprotected. In a footnote, the Board implied that the “strike notice,” a requirement in the health care industry, essentially counted as a third work stoppage day, even though the third work stoppage day had not occurred.

As the above analysis demonstrates, the recent single-shift work stoppages in the retail and fast food industries—combined with the existence of a plan, union involvement (albeit through community activists), and missed shifts occurring four to five times over a two-year period—will prove an interesting case if (and, most likely, when) the NLRB decides whether the walkouts are concerted activity protected by the NLRA, or are, instead, unprotected intermittent strikes. Importantly, such a case could provide greater guidance to employers regarding the ability to discipline those engaged in such activity.