Employer Services Advisory Bulletin
NLRB Makes Important Clarification Regarding Status
of One-Day Strikes
By Frank
Birchfield and April
L. Weaver
[August 2007]
In a potentially important decision for health care
employers, Care Center of Kansas City, the federal labor
board recently affirmed that a local of the Service Employees International
Union (SEIU) engaged in unprotected strike activity by participating
in two separate one-day work stoppages. Even though the union provided
10-days’ advance notice of each one-day strike, as required
by Section 8(g) of the National Labor Relations Act, the strikes
were still unprotected under board law because they were “intermittent”
in nature.
Care Center of Kansas City had a long collective bargaining history
with SEIU involving a unit of 40 health care employees. During negotiations
for a successor contract, Care Center and SEIU were unable to agree
on a wage increase. To support its contract demands, SEIU gave 8(g)
strike notices on three separate occasions, engaging in two disruptive
24-hour work stoppages. Following the strikes, Care Center gave
disciplinary warnings to strikers for failing to show up for work
and required strikers to make up missed time by working undesirable
weekend shifts. SEIU charged that Care Center’s response was
unlawful retaliation against a protected strike.
In prior decisions, the board had held that repeated, short-term
strikes under a single 8(g) notice were unprotected as intermittent
work stoppages. Care Center involved a key distinction,
however, as SEIU had issued separate 8(g) notices to render each
strike a freestanding job action. This is a common tactic in health care
strikes, and in years past, board personnel have frequently refused
to issue complaints against unions for bad-faith bargaining based
on the use of this type of repeated one-day strike. Employers have
generally concluded that this refusal also meant that the conduct
was protected and have refrained from taking action against employees
despite the disruptions caused by the behavior. As a result, SEIU
and various other unions have used the tactic without consequence
to the unions or the employees.
The Care Center decision went beyond prior holdings, however,
finding that SEIU’s intermittent 24-hour work stoppages, while
supported by separate strike notices, were still part of a pattern
of unprotected intermittent work stoppages designed to support the
union’s bargaining strategy through disruption and harassment.
As a result, the employer’s disciplinary responses were lawful
because they were not taken in response to protected conduct. (The
board was not presented with the issue of whether SEIU’s strikes
might indicate bad-faith bargaining, but some board precedents indicate
that intermittent strikes can signify bad faith on the union’s
part.)
Care Center provides some relief for employers exposed
to short-term strikes in support of a union’s bargaining demands.
In considering such actions, unions and employees must consider
the possibility that the employer will respond with disciplinary
action and other adverse consequences. It should be noted, however,
that Care Center may be appealed to a federal court of
appeals. Further, board law occasionally changes as political appointments
change its membership. Therefore, employers should consult with
counsel and consider carefully how to respond when employees engage
in such work stoppages.
For more information, please
contact:
Other DWT contacts:
Maria
Anastas, San Francisco, California, (415) 276-6500, mariaanastas@dwt.com
Henry
E. Farber, Bellevue, Washington, (425) 646-6100, henryfarber@dwt.com
Aaron
A. Roblan, San Francisco, California, (415) 276-6500, aaronroblan@dwt.com
Davis Wright Tremaine has employment
and labor lawyers in Alaska, Oregon, Washington state, California
and Washington, D.C. We represent many clients nationally. For a
specific referral for a DWT employment and labor attorney in your
state, please contact an above attorney. Thank you.
This
advisory
is a publication of the Employer Services Department of Davis Wright
Tremaine LLP. Our purpose in publishing this advisory
is to inform our clients and friends of recent developments in employment
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may be given only in
response to inquiries regarding particular situations. Attorney
advertising. Prior results do not guarantee a similar outcome.
Copyright © 2007, Davis Wright Tremaine LLP.
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