Working Together

The short answer is “yes.”  The National Labor Relations Act extends the same protections to employees of non-unionized employers as it does to union members.  One of those protections is the right to engage in a strike, which is simply a work stoppage in support of a concerted activity, such as a demand for changes in work hours, wages or working conditions, or to protest violations of the National Labor Relations Act.  If conducted properly, a “walk-out” by a single employee would be protected activity, and discipline or discharge of the employee could result in an unfair labor practice charge filed with the National Labor Relations Board.

Firstly, a walk-out by even a single employee could be deemed by the NLRB to be concerted activity if the employee makes a demand about an issue that would be shared by other employees, such as a safety issue or increased wages.  Although in most cases a striking employee can be replaced, a short-term striker can protect against replacement by sending the employer an unconditional offer to return to work.  In that event, the employer must reinstate the employee. Note that federal labor law does not require that the employee be paid for the missed day.

As an example, recently a restaurant manager was handed a letter by an employee stating that the employee intended to go on strike the following day to urge the restaurant to adopt a $15 per hour wage for all employees.  The letter further said that the employee was offering to return to work unconditionally the following day for his next regularly scheduled shift.  By citing to a concern shared by other employees  and offering unconditionally to return to work the next day, the employee was protected from discipline by his manager.

However, this is not a tactic that can be used at the whim of employees.  Federal labor law also recognizes the concept of an intermittent strike, which is a series or pattern of short-term walk-outs.  Workers who participate in intermittent strikes – often referred to as “hit-and-run” strikes – are not protected by law.  More than two or three walkouts within a short period could be deemed an intermittent strike, and could subject the participating employees to termination.

The takeaway is that employees who declare that they will be absent because they are on strike, or because they are protesting or advocating on some matter of shared concern,  may not be guilty of insubordination, but may in fact be protected by federal law.  Employers facing such a situation should consult with legal counsel before taking disciplinary action.