An intermittent strike is a planned series of short, repeated walkouts staged to pressure an employer on the same demand, and the National Labor Relations Board does not protect it. Workers who participate can be disciplined, fired, or permanently replaced, and the NLRB will not order them reinstated or award backpay. The test the Board has used since 1949 asks a single question: did the workers follow “a plan to strike, return to work, and strike again” in pursuit of the same goal?1National Labor Relations Board. The Right to Strike If the answer is yes, the legal shield that normally covers strikers is gone.
What Counts as an Intermittent Strike
The tactic is a pattern of stoppages rather than one continuous walkout. Workers leave, return, and leave again on a recurring basis, all aimed at the same demand. The key word in the NLRB’s definition is “plan.” A single strike that ends and is later followed by a genuinely new dispute is not intermittent. What triggers the label is evidence of a preconceived strategy to use multiple stoppages as leverage for one goal.
The Board’s test, articulated in Farley Candy Co. and applied in later cases, asks “whether the work stoppage arose pursuant to a strategy to use a series of strikes in support of the same goal.”2National Labor Relations Board. NLRB Decision – Walmart Stores, Inc. and Organization United for Respect at Walmart (OUR Walmart) A union that calls a two-day strike over safety, settles that issue, then later strikes over wages has engaged in two separate protected strikes. A union that walks out for a day over wages, returns, and walks out again three days later over the same wage demand has likely crossed into intermittent territory.
Why Federal Law Withholds Protection
Section 7 of the NLRA guarantees the right to engage in concerted activity for mutual aid or protection, which plainly covers strikes. But the Board and the courts read that right as protecting the withdrawal of labor, not the ability to toggle between striking and working on a schedule the employer never agreed to.
The reasoning that decides close cases runs like this. In a traditional economic strike, both sides sacrifice. Workers give up their paychecks. The employer loses production. That mutual pain is what pushes both sides toward a deal. Intermittent stoppages break the symmetry. Workers collect most of their pay while inflicting disruptions the employer cannot plan around. Management can’t bring in temporary replacements when workers keep showing up, and it can’t reconfigure operations for a four-hour walkout the way it can for a four-week one. The NLRB’s Walmart decision called this “random economic warfare” that “deprives employers of their responsive defense of permanently replacing strikers.”2National Labor Relations Board. NLRB Decision – Walmart Stores, Inc. and Organization United for Respect at Walmart (OUR Walmart)
There is a more fundamental point too. On the clock, the employer sets the terms of work. On strike, the worker has withdrawn labor entirely. You cannot occupy both positions at once. Periodic walkouts amount to employees dictating their own work schedule without bargaining for it, which is a unilateral change to the terms of employment reserved for the negotiation process.
The Supreme Court reached a similar conclusion in the 1949 Briggs & Stratton case, describing the tactic as “recurrent or intermittent unannounced stoppage of work to win unstated ends” and holding that such conduct was “neither forbidden by federal statute nor legalized and approved thereby.”3Justia. Automobile Workers v. Wisconsin Board – 336 US 245 (1949) The tactic sits in a gap: the NLRA does not make it illegal, but it does not protect it either.
Unprotected Is Not the Same as Illegal
This distinction trips people up constantly. An intermittent strike is unprotected, not unlawful. The Walmart decision explicitly said the conduct is “unprotected by the Act” but not criminally forbidden.2National Labor Relations Board. NLRB Decision – Walmart Stores, Inc. and Organization United for Respect at Walmart (OUR Walmart)
When a strike is protected, employers cannot retaliate against participants, and firing a protected striker is an unfair labor practice the NLRB will prosecute. When a strike is unprotected, that shield disappears. The employer can discipline or discharge participants and the Board will not intervene. But no crime has occurred, and no government agency is coming after the workers. They have simply lost the legal armor that normally prevents their employer from treating the walkout as a fireable offense.
What Your Employer Can Do
Once a strike is classified as intermittent, the employer’s options expand. The usual restrictions that bar interference with concerted activity and discrimination based on union activity no longer apply to the specific conduct at issue. The employer can treat participation the same way it would treat any other unauthorized absence or act of insubordination.
- Written warnings and progressive discipline, treating each walkout as an attendance violation under existing policy.
- Suspension without pay for specified periods.
- Termination. Because the strike is unprotected, discharged employees have no right to reinstatement.4National Labor Relations Board. NLRA and the Right to Strike
- Permanent replacement, with no obligation to recall the original workers when the dispute ends.
The Board will typically dismiss unfair labor practice charges filed by workers disciplined for participating, which means no backpay and no reinstatement order. Challenging a termination through legal proceedings is expensive, and when the underlying activity is unprotected the odds are low. Most workers fired for participating in an intermittent strike have no practical path back to their jobs.
How the Board Proves the “Plan”
Because so much rides on the intermittent label, the Board looks carefully for proof of a deliberate strategy, not just coincidental timing.
Direct evidence is the most damaging: written communications, strike notices, union meeting minutes, emails, text messages, or social media posts laying out a plan for multiple short stoppages. Documents that describe a schedule of recurring walkouts for the same demand essentially end the case.2National Labor Relations Board. NLRB Decision – Walmart Stores, Inc. and Organization United for Respect at Walmart (OUR Walmart)
When direct evidence is missing, the Board reads the surrounding circumstances. Multiple walkouts close together in time, each targeting the same demand, with workers returning to their positions only to walk out again, form a pattern that becomes evidence in itself. Three strikes in two weeks over the same contract proposal will support an inference of coordinated intermittent strategy even without a written plan. The Board also considers whether workers genuinely intended to return to work after each stoppage or were simply pausing before the next action.
The Walmart case shows the analysis in action. Workers had staged walkouts in 2012 and 2013, each time returning and then striking again for the same demands. The Board reversed the administrative law judge and found the third major stoppage, called the “Ride for Respect,” was unprotected because it was the latest action in a deliberate strategy of recurring walkouts for the same purpose. The Board looked at the full sequence, not any single walkout in isolation.
When Repeated Strikes Stay Protected
Not every series of strikes is intermittent, and getting this line right matters for workers who might otherwise give up their protection unnecessarily. The Board does not set a specific number of days between stoppages or a maximum number of walkouts. The analysis is about strategy and purpose, not a formula.
A series of separate protected strikes looks like this: a union strikes for three days over a workplace safety hazard, returns after the employer agrees to address the issue, and six weeks later strikes again over unrelated contract terms. Each stoppage has a distinct purpose and neither was planned as a stepping stone to the next.
An unprotected intermittent strike looks more like this: workers walk out on Monday for four hours demanding a wage increase, return Tuesday, walk out again Thursday for the same demand, and announce plans to keep doing so until the employer concedes. The recurring pattern, the shared goal, and the visible ongoing strategy all point to the intermittent label.1National Labor Relations Board. The Right to Strike
The gray area falls between. Workers who are genuinely undecided about continuing to strike, who return in good faith but find conditions unchanged and decide to strike again, have a stronger argument that each action was a separate protected strike. But if the evidence shows they always intended to follow a recurring pattern, the good-faith argument falls apart.
Other Partial Tactics That Also Lose Protection
Intermittent strikes are not the only partial-pressure tactic that falls outside NLRA protection. Workers considering alternatives to a traditional full strike should know that several related strategies carry similar risks.
- Slowdowns, meaning deliberately working at a reduced pace to cut productivity while staying on the clock. The Board treats this as unprotected for the same reason as intermittent strikes.
- Sit-down strikes, meaning occupying the workplace while refusing to work. The Supreme Court ruled decades ago that this tactic is not protected.
- Work-to-rule, meaning following every workplace rule and procedure to the letter to slow operations. This is sometimes harder for employers to prove and punish, but it can still be treated as unprotected if the Board finds the purpose is to disrupt rather than comply.
The common thread is that each tactic attempts to pressure the employer without the full economic sacrifice of a traditional strike. The NLRA’s framework assumes that when workers want to exert economic leverage they do so by withholding their labor completely and accepting the financial consequences that come with it.
Healthcare Notice Rules and No-Strike Clauses
Two separate rules can strip protection from a walkout independent of the intermittent doctrine, and workers should know about both before planning any recurring action.
Healthcare workers face an extra hurdle. Section 8(g) of the NLRA requires a labor organization to give at least 10 days’ written notice to both the healthcare institution and the Federal Mediation and Conciliation Service before striking, picketing, or engaging in any concerted refusal to work.1National Labor Relations Board. The Right to Strike A strike without this notice is unlawful, and participating workers can be discharged with no right to reinstatement. Each new stoppage in an intermittent sequence arguably requires its own notice, which eliminates the unpredictability that makes the tactic effective in the first place.
No-strike clauses in collective bargaining agreements create the second layer. A strike that violates a no-strike clause is not protected, and participating workers can be disciplined or discharged.1National Labor Relations Board. The Right to Strike When an intermittent strike also breaches a no-strike clause, the workers face a double problem. A narrow exception exists for strikes protesting certain serious unfair labor practices by the employer, but intermittent economic action aimed at gaining better contract terms will not qualify.
Whether the Rule May Change
The law on intermittent strikes is not necessarily settled forever. The NLRB’s strike guidance page notes that “the NLRB General Counsel is urging the NLRB to reconsider this area of law.”1National Labor Relations Board. The Right to Strike The Board has not issued a decision overturning the longstanding rule, and its political composition shifts with each presidential administration, so whether reconsideration actually happens depends on future appointments and cases.
The practical advice has not changed. The intermittent strike doctrine has been the law since the Supreme Court addressed the tactic in 1949, and the Board has applied it consistently for decades. Anyone planning a recurring work stoppage strategy should assume the current rule applies and that participation carries the full range of consequences until the Board says otherwise.