Are partial or intermittent strikes protected by the law? Mathew Parker and David Hiller of Fisher & Phillips divulge particulars of protection for non-union workers.

By David Hiller and Mathew Parker

There's an old saying that companies that don't have unions don't have strikes. But that's not always the case. Over the course of the last three years, the "Fight for 15" movement has orchestrated ten nationwide demonstrations and strikes by fast food and other low wage, non-union workers. The most recent on November 10 targeted 230 US cities. One of the targeted cities was Columbus where a rally at City Hall was applauded by US Senator Sherrod Brown. A much larger rally was staged at McFerson Commons in August. Another targeted city was Oakland, Calif. where a walk-out by fast food workers was led by a former US Labor Secretary. The announced purpose of the "Fight for 15" movement is to force low wage employers to pay more than double the federal minimum wage (currently $7.25 hr). The campaign is funded by the Service Employees' International Union which is trying to organize the fast food industry. The "Fight for 15" walkouts have rekindled questions about the scope of non-union workers' right to strike.

Protected & unprotected strikes

The National Labor Relations Act protects the right of all private sector employees (union and non-union) to engage in concerted activity for their mutual aid or protection. A work stoppage to protest a work-related grievance such as low wages is a classic example of protected concerted activity which cannot be punished by the employer. But not all work stoppages are protected.

One variety of unprotected stoppage is the "partial strike" where the strikers stay on the job but pick and choose the tasks they'll perform. If the fast food workers in Oakland had continued to prepare sandwiches but refused to prepare French fries, they would have been subject to discharge. To be protected, a work stoppage must be complete.

Another variety of unprotected stoppage is the "intermittent strike;" that is, a series of on-again, off-again stoppages which are part of a preconceived plan to exert economic pressure without taking the risks inherent in a full strike (such as the risk of being permanently replaced). If the workers on strike in Oakland continued to walk off each Tuesday, they would be subject to discharge.

The "in-plant" strike

The Oakland strikers exited the restaurant and joined a demonstration outside. But sometimes the stoppage will be of the in-plant variety; that is, the strikers will congregate in the lunchroom during scheduled work hours. Such in-plant stoppages are entitled to persist for a reasonable period of time. However, the strikers can only withhold their labor. They cannot interfere with production. In the Oakland stoppage, the strikers could have been discharged if they had prevented supervisors and/or non-striking employees from manning the serving counters.

If confronted with an in-plant work stoppage, the best practice is as follows:

First, offer to meet with a delegation of employees and encourage them to fully explain their grievance.

Second, don't rush it. Take some time to ponder your decision on the grievance. Third, after permitting the employees to persist in their protest for a reasonable period of time, inform them of your decision and tell them that it is time to either return to work or leave the plant. Do not tell them that they will be discharged unless they return to work. It is the employee's refusal to leave the plant (not their refusal to work) which is unprotected. Fourth, if the in-plant stoppage persists, summon the police to eject the sit-in strikers as trespassers. Fifth, dock the pay of everyone who refused to work. Sixth, thoroughly document what occurred.

It is important that retailers and other employers understand the rights of nonunion employees under federal labor law because the current National Labor Relations Board has demonstrated greatly heightened interest in enforcing those rights.

David Hiller is a partner in the Columbus office of Fisher & Phillips and a former chief counsel to the Attorney General of Ohio.

Mathew Parker is an associate in the Columbus office ofFisher & Phillips. His practice involves the representation of employers in various types of employment litigation. He also counsels employers regarding various day-to-day employment policies and practices.