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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:

Author: Frank Birchfield San Francisco, California (415) 276-6500 frankbirchfield@dwt.com

Author: April L. Weaver San Francisco, California (415) 276-6500 aprilweaver@dwt.com

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.

Copyright © 2007, Davis Wright Tremaine LLP.

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