On February 16, 2017, tens of thousands of individuals across the country stayed home from work as part of the “Day Without Immigrants,” a social activism campaign organized in response to President Donald Trump’s recent executive orders concerning immigration and increased enforcement, deportation actions, and raids by Immigration and Customs Enforcement. The “Day Without Immigrants” action was apparently not coordinated by any centralized organization, but was promoted on social media and by word-of-mouth just days before.

Now, the same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by taking the day off from paid and unpaid labor, and by wearing red – which the organizers note “may be a great act of defiance for some uniformed workers.”

Employers should be prepared to address any difficult questions that might arise in connection with the upcoming “Day Without Women” strike: Do I have to give my employees time off to participate in Day Without events? Can I still enforce the company dress code – or do I need to permit employees to wear red? Can I discipline an employee who is “no call, no show” to work that day? Am I required to approve requests for the day off by employees who want to participate? As we explained in our prior blog post, guidance from the National Labor Relations Board’s General Counsel suggests that an employer can rely on its “lawful and neutrally-applied work rules” to make decisions about granting requests for time off, enforcing its dress code, and disciplining employees for attendance rule violations. An employer’s response, however, to a given employee’s request for time off or for an exception to the dress code, may vary widely based upon the individual facts and circumstances of each case.

As we previously noted, participation in events such as these may be protected concerted activity under the National Labor Relations Act (the “Act”). When employees take action to “improve their lot as employees through channels outside the immediate employee-employer relationship,” that activity is protected concerted activity under Section 7 of the Act so long as it has a direct connection to the employees’ working conditions. GC Memorandum 08-10 (2008), pgs. 1, 10 (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). There are, of course, some limitations on employees’ right to engage in concerted political activity. In GC Memo 08-10, issued in 2008, the Board’s General Counsel concluded that under existing Supreme Court and Board precedent, when employees exert economic pressure on their employer by leaving work to support a political cause, that activity may not be protected if the employer has “no control over the outcome of that dispute.” GC Memo 08-10, pg. 10.

However, even if employees’ participation in these mass demonstrations and strikes is considered protected concerted activity (as it concerns a specific issue directly connected to their work conditions and terms), an employer may still regulate that activity through its “lawful and neutrally-applied work rules.” GC Memo 08-10, pg. 13.

Similarly, an employer can rely on its lawful, uniformly-applied policies to evaluate whether to grant a request for time off to participate in Day Without Women activities – by asking, for example, whether the employee has sufficient accrued time, or has given enough advance notice, or has found someone to cover his work shift if that is ordinarily required. An employer may also apply its neutral attendance policy (which complies with all applicable leave laws, including local paid sick leave laws) to discipline an employee who simply fails to report to work without calling out.

What Employers Should Do Now

All employers should be prepared to address these issues as they arise – if not this week, then in the coming weeks and months if these types of mass protests continue. As described above, an employer’s reaction to its employees’ expressed desire to participate in these events will vary widely based on the individual circumstances at issue.

This week, an activist group calling itself “Strike4Democracy” has called for a day of “coordinated national actions” – purportedly including more than 100 “strike actions” across the country – on February 17, 2017. The group envisions the February 17th strike as the first in “a series of mass strikes,” including planned mass strikes on March 8 (organized by International Women’s Day and The Women’s March) and May Day, and a general “heightening resistance throughout the summer.” The organizers are encouraging people not to work or shop that day.

What Is Strike4Democracy Planning?

The February 17th strikes appear intended to be “community-based events,” and so while Strike4Democracy apparently intends for these strikes to serve as an overall protest against President Trump’s actions and policy pronouncement since taking office, the specific message of each strike may vary at the local level. For example, one organizing website in Cleveland describes the “demands” of its local February 17th strike to include “No Ban, No Wall,” “Healthcare For All,” “No Pipelines,” “End the Global Gag Rule,” and “Disclose and Divest” (including demands that President Trump release his tax returns and sell his businesses). According to Strike4Democracy, people are being encouraged to participate on “official strike days” by refusing to work, or they can use their lunch breaks “to disrupt and participate” by, for example, posting social media messages “that support democracy . . . to show how you #BreakLunch.”

What Does This Mean For Employers?

Employers may find themselves with some very difficult questions to answer on February 17th (and potentially after that): Do I have to grant a request for time off by one (or many) employees to attend these events? Can I discipline an employee who does not show up to work because he or she has chosen to participate in a mass strike action? Should I send out a message ahead of time to my employees regarding this event? If so, what can I (or shouldn’t I) say? The answers to these questions are largely going to depend on the particular facts of each case. While in many respects these are uncharted waters, the case law developed under the National Labor Relations Act (the “Act”) over the past 80 years does however offer some potentially meaningful guidance for analyzing these questions.

When employees take action to “improve their lot as employees through channels outside the immediate employee-employer relationship,” that activity is protected concerted activity under Section 7 of the Act so long as it has a direct connection to the employees’ working conditions. GC Memorandum 08-10 (2008), pgs. 1, 10 (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). There are, of course, some limitations on employees’ right to engage in concerted political activity. In 2008, the National Labor Relations Board’s (the “Board”) General Counsel issued a “Guidance Memorandum” that is relevant to the current situation, after the Board considered a series of unfair labor practice charges involving employees who missed work to attend nationwide and local protests concerning proposed legislation to restrict employers’ hiring of immigrants as employees. In GC Memo 08-10, the General Counsel concluded that under existing Supreme Court and Board precedent, when employees exert economic pressure on their employer by leaving work to support a political cause, that activity may not be protected if the employer has “no control over the outcome of that dispute.” GC Memo 08-10, pg. 10.

As an initial matter, therefore, the question whether an employee engages in protected activity by attending a February 17th rally or demonstration may largely depend on the cause or “demand” at the center of that that local event. A local rally focused on trying to convince the President to release his tax returns likely will not be found to have a direct connection to most employees’ working conditions. Protests concerning issues like immigration reform or opposing repeal of the Affordable Care Act with its implications for employer-provided health benefits, by contrast, might be found to have a more direct nexus to employees’ working conditions – particularly if those employees are immigrants or work in an industry that relies heavily upon immigrant employees.

However, even if employees’ participation in these mass strikes is considered protected concerted activity (as it concerns a specific issue directly connected to their work conditions and terms), an employer may still regulate that activity through its “lawful and neutrally-applied work rules.” GC Memo 08-10, pg. 13. Therefore, an employer can discipline an employee who violates a work rule by improperly using her cell phone on the work floor to tweet with the hashtag #BreakLunch so long as that work rule is lawful (i.e., it would not be found to violate the Act for some other reason) and has been uniformly applied to impose equivalent discipline on other employees in similar circumstances.

Similarly, an employer can rely on its lawful, uniformly-applied policies to evaluate whether to grant a request for time off to attend a February 17th rally – by asking, for example, whether the employee has sufficient accrued time, or has given enough advance notice, or has found someone to cover his work shift if that is ordinarily required. An employer may also apply its neutral attendance policy (which complies with all applicable leave laws, including local paid sick leave laws) to discipline an employee who simply fails to report to work without calling out.

An employer considering whether to distribute a message to employees in advance of the February 17th events must remain mindful that Section 7 of the Act also protects communications about political matters.  Accordingly, a rule prohibiting communications about political matters without clarifying context of examples may be unlawfully overbroad because employees could reasonably construe it to cover communications protected by the Act.

Similarly, a broad admonition against missing work could be considered by the Board to be an unlawful interference with employees’ rights to engage in otherwise protected concerted protected activity. For example in GC-Memo 15-08, which offered guidance on a broad range of employee handbook provisions, the Board’s General Counsel wrote that Memorandum notes that “one of the most fundamental rights employees have under Section 7 of the Act is the right to go on strike,” and therefore “rules that regulate when an employee can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts.” As we noted at the time, GC-Memo 15-08 recognized that not all rules concerning absences and leaving the workstations are unlawful, and that a rule would be lawful if “such a rule makes no mention of ‘strikes,’ ‘walkouts,’ ‘disruptions’ or the like” since employees should “reasonably understand the rule to pertain to employees leaving their posts for reasons unrelated to protected concerted activity.”

What Employers Should Do Now

All employers should be prepared to address these issues as they arise – if not this week, then in the coming weeks and months if these types of mass protests continue. As described above, an employer’s reaction to its employees’ expressed desire to participate in these events will vary widely based on the individual circumstances at issue.

In the waning days of the Obama Administration, the President’s appointed General Counsel to the NLRB took official action this week to permit questionable and disruptive strike activity, including one day strikes that are frequently used by aggressive unions against hospitals and other employers.  Specifically, the GC’s Office issued an Operations-Management Memorandum acknowledging unions and employees “are more frequently engaging in short-term strikes” and seeking to “clarify and modify the law regarding intermittent and partial strikes” to address concern employees face “potential discipline for activities that should be considered protected under Section 7 of the Act.”

The Memo seems to be a transparent attempt to push an agenda to protect the activities of certain unions, mainly in the health care, fast food, and retail industries, which have used multiple one-day strikes as a weapon.

Intermittent Strikes, Partial Strikes and Slowdown Are Not Permitted Under the NLRA

Under current National Labor Relations Act case law work slowdowns, partial strikes and intermittent strikes are not permitted, and therefore employees who engage in them are not protected and may potentially be disciplined or discharged.  The reason for this long standing policy is clear; while employees should be free to withhold their labor as economic leverage, they should not be able to do so without any risk or sacrifice.  For that reason, what the Board has historically referred to as quasi-strikes which are “intentionally planned and coordinated so as to effectively reap the benefit of a continuous strike action without assuming the economic risks associated with a continuous forthright strike, i.e., loss of wages and possible replacement,” have not been entitled to protection under the Act.  WestPac Electric, 321 NLRB 1322, 1360 (1996).

While this principle is sound and well established, its exact contours lack clarity.  While work slowdowns, partial day strikes or work stoppages refusing to do a certain type of work (overtime, weekend, etc.)  fall clearly outside the protection of the Act, to date Board law has been less clear on strikes lasting at least one day, even if repeated in nature.  While most recognize that an announced strategy of multiple one day strikes would be problematic as would many one day strikes, there has been less clarity on how many is many, with many believing two to three one day strikes could be protected but more than that likely loses protection.

Unions Increasingly Use Intermittent and Short Strikes to Improperly Gain Bargaining Leverage

In recent years , taking advantage of the lack of clarity, the California Nurses Association, SEIU, and other unions have used one day strikes against hospitals as a way to force the target hospital to spend millions of dollars in replacement workers and other preparations to ensure proper care for their sick patients while not really impacting the wages of the nurses or other healthcare workers who only lose a day or two of pay.  Similarly, the UFCW, “Fight for 15” and other organizations have used flash strikes or other short term walkouts (often during holidays or other peak times) to obtain publicity and disrupt the operations of fast food restaurants, Wal-Mart and others, without significant or even any loss of wages.

In the case of a hospital, these strikes typically take the form of a strike notice under 8(g) of the Act telling the hospital that the employees will be on strike for a single 24 hour period together with an unconditionally offer to return to work as the end of that period.  This forces the hospital to scramble to find qualified temporary replacement workers, vet them, train them and orient them.  In order to do so, the hospital typically needs to contract with the replacement workers for at least five days and at significant expense.  Once the strike is over, often nothing has been resolved and the parties go back to the table only for the union to threaten to engage in another intermittent strike sometime down the line.

The only saving grace was that unions were hesitant to call more than two or three of these short strikes during any single labor dispute/negotiation because of the lack of clarity noted above left them vulnerable to a claim that the third or fourth short strike was intermittent and unprotected.

GC Seeks an Exception

In acknowledging both the increase of these union tactics and the lack of clear guidance on them, the GC’s Memorandum instructs the NLRB’s Regions to take action to again put their thumb on the scales in favor of unions.  Specifically, the GC Memorandum provided and instructed Regions to utilize an Intermittent Strike Brief Insert that advocates for a loosing of the standard to sanction any intermittent or short time strikes which:

  1. “involve a complete cessation of work [as opposed to a slow down or partial work stoppage];
  2. “are not designed to impose permanent conditions of work [i.e., weekend only strikes, refusal to work overtime, etc.], but rather are designed to exert economic pressure; and
  3. The employer is made aware of the employees’ purpose in striking.”

While, if accepted by the Board and the courts, this certainly would provide some clarity, that clarity would be that unions would be free to conduct as many short, intermittent strikes as they desired so long as they called for a complete walkout and they old the employer what they were seeking.  This would not only sanction the damaging work stoppage above, but would result in increased and expanded use/abuse of such tactics.

Management Missive

Employers must be aware of this development, as well as the fact unions likely will be looking to test this theory, and should prepare accordingly.  While certainly contingency planning is a must, employers may also be able to take advantage of certain bargaining strategies designed to mitigate the impact of these union tactics.  Employers should consult with experienced labor counsel to ensure they are prepared.

 

Featured on Employment Law This Week: The National Labor Relations Board (NLRB) finds the hiring of permanent replacements for strikers to be an unfair labor practice.

In a 2-1 decision that could benefit unions during contract negotiations, the NLRB found that a continuing care facility in California violated federal labor law when it hired permanent replacements after a series of intermittent strikes. While the NLRB and courts have long held that an employer’s motivation for hiring permanent replacements is irrelevant, in this case, the board held that if the hiring is motivated by an intent to discourage future strikes, it interferes with employees’ rights under the National Labor Relations Act (NLRA). The employer in this case will likely seek judicial review. However, in the meantime, the decision adds new risks for employers that may wish to hire permanent striker replacements.

View the episode below or read more about this story in a previous blog post, written by frequent contributor Steven M. Swirsky.

by: James S. Frank, Steven M. Swirsky, and D. Martin Stanberry

The Second Circuit Court of Appeals ruled on Wednesday February 27th, in NLRB v. Special Touch Home Care Servs. Inc., 11-3147 (2d.Cir., Feb. 27, 2013) (PDF) that the NLRB erred when finding that 48 home health aides were protected by the National Labor Relations Act (“Act”) when they participated in a strike after affirmatively telling their employer that they would be present for their shifts at their respective patients’ homes during the week of the strike.

While the NLRB had held that the workers actions were protected activity under the Act and that they had no obligation to the patients since the union had provided a statutory 10-day notice of the strike to their employer, the Court disagreed. The Second Circuit’s decision was a significant repudiation of the Board’s conclusion that the patients were not in imminent danger because: (1) many of the aides provided individual notice to the patients that they would not be coming to work; (2) the aides were not licensed to perform life-saving medical services; and (3) no actual harm came to any of the patients.

In 2004, 1199SEIU, the union representing Special Touch’s home health aides, served a statutorily required 10-day notice of the union’s intent to conduct a two-day strike.  In preparation for the strike, Special Touch contacted the home health aides scheduled to work that week and asked whether they intended to take time off during the week of the strike (importantly, they did not ask whether they would be participating in the strike and were not obligated to answer). Of the 1,400 employees, 75 indicated that they would be taking time off. When the strike commenced, 48 additional employees who had affirmatively denied such an intent, were absent without notice.

Unsurprisingly, Special Touch had to scramble to make alternate arrangements to serve its patients once it learned the additional 48 aides had not reported to the homes of the patients for whom who they were assigned to care. As the day progressed, Special Touch was able to arrange alternate coverage for all but five of the 48 home health aides. Fortunately, no harm came to any of the 48 patients that received reduced or no care during the day.

When the strike ended two days later, Special Touch immediately reinstated the 75 employees that had provided notice that they would be absent on the days that the union struck. The 48 aides who had been out even though they had said they would work were directed not to report until further notice. Over the next few months, all 48 were given new assignments. None were terminated because of their absence.

The union then filed charges with the NLRB over the employer’s decision not to immediately reinstate the 48 employees who had participated in the strike after telling the employer that they would be reporting to work and taking care of their assigned patients.  The union argued that the decision not to correct their misstatements was not protected activity under the Act and had not lost the protection because there had not been any imminent danger to their assigned patients as a result of their participation. The Board’s Acting General Counsel agreed with the union and issued a complaint.  The employer did not agree and a hearing was held before an Administrative Law Judge who agreed with the AGC that the employees’ participation in the strike was protected even though they had told the employer that they would not be participating and would be going to their patients’ home to provide care as assigned.  The Board agreed with the ALJ and upheld his decision after the employer appealed.

Fortunately for patients and employers alike, the Court held that there was no reasonable basis for the Board to conclude that the 48 home health aides had not placed their patients in imminent danger, and consequently, lost the protection of the Act.

The Court based this conclusion on a reasoned examination of the applicable facts and law, finding that individual notice provided to patients by their aides did not significantly mitigate the risk of danger because many patients that receive home healthcare services “do not appreciate the degree of care that their conditions require.”  The Court also emphasized the fact that the non-performance of even general or menial tasks such as cleaning, shopping and bathing the patient creates a risk of imminent danger. Other duties, such as “reminding customers to take their medication, and observing customers for signs of immediate distress” are surely intended to mitigate the risk of danger.

This decision by the Court does not require employees to tell their employer whether they intend to participate in a strike. Nor does it require the employee even respond to the employer’s query. In fact, the employees would not have lost the protection of the Act if they had simply not answered the employer’s inquiries about whether they planned to report on those days, because the 10-day notice from the union serves to put the employer on notice of their intent to strike. In fact, “[h]ad Special Touch not reached out to their aides in advance of the strike in an attempt to plan ahead… the aides would not have been required to call in.”

It is only when the employee controverts the intent of the 10-day notice that they lose the protection of the Act. As the Court concisely explained, “[w]hat employees cannot do is mislead their employer into expecting their presence when the lack thereof will result in foreseeable imminent danger.”

On January 3, 2013, the California Nurses Association/National Nurses United (CNA/NNU) and the National Union of Healthcare Workers (NUHW), two of the healthcare industry’s most aggressive unions, announced a new alliance designed to organize employees in non-union hospitals, impose their agenda on already unionized hospitals and target the members of rival union Service Employees International Union (SEIU).

CNA/NNU is the largest union exclusively representing registered nurses (RNs). The CNA has had considerable success in California organizing over 85,000 RNs and using its political clout to force through the first in the nation patient staffing ratios in 2004. The success emboldened CNA to expand nationally and create NNU, now representing an additional 100,000 RNs. CNA/NNU is known for extreme tactics, public pressure and strikes taken under the guise of patient care but with the actual goal of achieving typical labor objectives such as pay increases or union rights. In fact, CNA/NNU has called strikes at over 100 facilities in the last two years.

NUHW is a relatively new union, formed in 2009 by ousted leaders from the SEIU after the SEIU’s national leadership imposed control over the California local union covering healthcare workers. Since the schism, the NUHW leadership has embarked on an impressive campaign to poach SEIU members and otherwise organize healthcare workers. The NUHW already represents over 10,000 employees and has a pending NLRB petition to represent an additional 43,000 members currently represented by SEIU. NUHW is also known for aggressive tactics and is equally not shy about using strikes and other economic weapons to achieve its goals.

The announcement put an exclamation point on the official end of a four year truce between CNA/NNU and SEIU, under which the  two healthcare union giants had agreed to “bury the hatchet.” The formal truce, which was reached after the two unions publically attacked each other and sought to organize each other’s members in 2009, officially ended by its terms on December 31, 2012. The January 3rd announced alliance, which directly attacked SEIU and its leaders, makes it clear the hatchet has been dug up.

The alliance will provide both the CNA/NNU and NUHW additional resources to pursue their agendas. Since 2009 CNA/NNU has provided NUHW $2 million in loans or grants help the new union and the alliance will continue the financial support with NUHW’s access to CNA/NNU resources and CNA/NNU receiving per capita payments from NUHW members, the NUHW will remain technically an independent union. Additionally, the organizers, business representatives, lobbyists and other resources of each union can be utilized to support each other, not to mention the use of the membership to support picketing, strikes or other protest activity. The result is likely to be more hospital and healthcare organizing, more protests and more strikes in 2013

Management Missives

  • Non-union hospitals and other healthcare employers should evaluate their union avoidance strategies, appropriately train management and otherwise be prepared to respond it targeted;
  • Hospitals and other healthcare employers with relationships with either CNA/NNU and/or NUHW should anticipate an even more aggressive 2013, including potential organizing by the alliance of unrepresented areas of the employers’ operations, and develop appropriate contingent strategies;
  • Hospitals and other healthcare employers with SEIU contracts expiring in 2013 should be prepared for their facilities to become battlegrounds as CNA/NNU and NUHW look to capitalize on the alliance; and
  • The SEIU affiliated unions in healthcare are not likely to be passive and roll-over for the CNA/NNU and NUHW.   Expect the SEIU unions to develop and pursue aggressive counterstrategies to protect and expand their turf in this nasty street fight.