Washington Law Review


Crissa Cugini


In 1974, Congress added section 8(g) to the National Labor Relations Act (NLRA), requiring labor organizations in health care institutions to give ten days' notice before striking. In East Chicago Rehabilitation Center, Inc. v. NLRB, the Seventh Circuit Court of Appeals interpreted the ten day notice provision in the context of a wildcat strike by seventeen nurse's aides. A divided court held that the wildcat strikers were not required to give ten days' notice because they were not a "labor organization." The court further held that the strikers were protected even though theirs was a wildcat strike not authorized by their union. A wildcat strike in a health care institution illustrates the fundamental tensions existing in the policies behind the NLRA. A court must balance the Act's protection of employee concerted activity first against the public interest in uninterrupted health care and second against protection of the union as the exclusive bargaining agent of represented employees. As the East Chicago decision indicates, sometimes courts must make difficult choices between these conflicting interests. This Note examines the East Chicago court's resolution of these conflicts. Neither precedent nor the court's own test for a "labor organization" support the court's holding on the ten day notice issue. The court's focus on whether the strikers constituted a "labor organization" is not a helpful way to analyze a wildcat strike in a health care institution. Furthermore, the court's holding that the strikers were protected even though they struck without their union's authorization is incorrect. Even under the minority approach, in which wildcat strikes may be protected activity, the court failed to consider all the proper factors in its analysis. This Note suggests an alternative approach to determine whether a wildcat strike in a health care institution is protected concerted activity under the NLRA.

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