On November 15, 2013, the NLRB's General Counsel released an advice memorandum (dated November 4, 2013) concluding that a strike, brought in protest of a new collective bargaining agreement (CBA) (that included a no-strike clause) entered into by a union without a member ratification vote, was unprotected by the NLRA. The strike was an unlawful wildcat strike, inconsistent with union's position and therefore proscribed by the exclusivity principle in Section 9(a) of the NLRA.

A taxi cab operator in Las Vegas, Nevada employs approximately 1,900 drivers that a union has represented in collective bargaining since 1989. When the most recent CBA between the employer and the union expired the parties continued negotiating for a new CBA. The employer submitted a last, best and final offer, and despite having told the negotiating committee members that he would schedule a vote allowing members to ratify the negotiated CBA as membership had in the past, the union's chief negotiator accepted the employer's offer without a ratification vote.

The new CBA maintained the no-strike language of the previous CBA. The union advised the employees of the terms of the new CBA by letter and urged them to give it a chance. On March 21, 2013, a local newspaper reported that the drivers were preparing for a wildcat strike. That same day, the union sent another letter to the employees, again urging them to give the CBA a chance and reminding them that any strike was illegal and would result in them losing their jobs.

A few days later, 371 employees went on strike to protest the CBA and the union entering into a new CBA without a member ratification vote. On April 1, the union sent a letter to the employees advising that the strike was illegal. On April 3, the employer discharged all 371 employees involved in the strike. On April 4, the union filed a grievance opposing these discharges. On July 23, the union and the employer signed an agreement for the conditional re-employment of 348 of the discharged employees. The agreement also listed the 20 remaining individuals alleged to have been engaged in strike misconduct and stated that re-employment of these individuals would be discussed. One of these individuals filed an unfair labor practice (ULP) charge alleging that the employer violated the NLRA by discharging the striking employees.

The case was submitted for advice as to whether the strike to protest the union and the employer entering into a new CBA without a ratification vote was protected activity under the NLRA. The Division of Advice concluded that the strike was not protected under the NLRA because it was inconsistent with the union's position. Under Section 9(a) of the NLRA, "otherwise protected dissident employee activity can lose the protection of the Act if.... the employees' position is inconsistent with the union's position." Here, the strike protesting the lack of ratification vote was in direct opposition to the union's:

The Division of Advice noted that the union's anti-strike position was clear from its actions before the strike, including:

Further, after the strike began, the union:

Based on these facts, the Division of Advice concluded that the strike was:

Accordingly, the Division of Advice recommended that the ULP charge be dismissed absent withdrawal. It also noted that the union's grievance objecting to the discharge of the employees involved in the strike does not alter its conclusion, especially considering the terms of the settlement of this grievance which:

This advice memorandum is not binding precedent from the panel (Board) heading the judicial functions of the NLRB. However, it does provide guidance to employers on whether and under what circumstances a strike can fall outside the protections of the NLRA. Employers should recognize that union statements condemning a strike by a portion of its bargaining unit are critical to showing that a strike is an unlawful wildcat strike. The more easily the NLRB understands a union's position, the more easily it can find that employees engaged in unprotected activity contrary to that position. Employees facing strike activities should consider immediately requesting that any union representing the striking employees state the union's position on the strike, including whether the union condones the strike. Where unions are bound by no-strike clauses, employees may consider requesting that unions: