Legality of Intermittent or Partial Strike

Under current law, workers who strike multiple times, especially in the same labor dispute, can lose the Act’s protections and face discipline or termination.

In a 2019 decision, the Board found a series of strikes to be intermittent strikes that were unprotected, and therefore, the employer’s discipline of the strikers for violation of the company’s attendance policy did not violate the NLRA.1

The right to protest, short of an intermittent strike, may be protected activity. In The Ohio Bell Tel. Co., the Board held that the employer violated section 8(a)(3) and (1) by issuing documented verbal warnings to employees because of their protected concerted and union activity of reporting to work in street clothes to protest a perceived shortage of required uniforms.2 The Board explained that the protest constituted concerted activity for mutual aid and protection, and was not an unprotected partial strike or work slowdown. The Board concluded, however, that the protected concerted protest ended when employees dispersed either to change into uniforms and begin work or to retrieve uniforms in response to the employer’s lawful instruction.

1. Walmart Stores, 368 NLRB No. 24 (July 25, 2019)

2. The Ohio Bell Tel. Co., 370 NLRB No. 29 (Oct. 28, 2020)