A wildcat strike was not protected by the National Labor Relations Act (NLRA) once the striking employees became aware that their union disapproved of and disavowed the strike, the National Labor Relations Board (NLRB) has ruled. CC1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers, 368 NLRB No. 84 (Sept. 30, 2019).

The employees’ continued striking, despite their union’s opposition, undermined the union’s exclusive bargaining authority and resulted in a loss of the NLRA’s protections, the NLRB explained.

Chairman John Ring, and Members Marvin Kaplan and William Emanuel participated in the decision.


A Teamsters Local represented warehouse employee at the company’s bottling plant. In September 2008, during negotiations for a successor collective-bargaining agreement, the union’s main representative at the plant and several shop stewards led employees in a two-hour work stoppage. The company suspended and then terminated the shop stewards.

On October 20, the first day of a strike led by the terminated stewards, the company’s counsel warned the union’s Secretary Treasurer, that it would take action against “the Union and its representatives” unless the illegal strike stopped. The union replied on the same day, making it “abundantly clear that [it] did not send or authorize the presence of Officers or Union members to take part in the strike.” The union stated in its letter that the strikers “were in violation of the statutes of the Union” and engaged in “clearly illegal activity.” The union assured the company that it would “be taking legal and union action” against the “false [union] leaders” who were “threatening … the welfare of the great majority of these workers in order to promote their own ignoble interests.”

The company had its security guards distribute copies of the union’s letter to the striking employees. However, most employees continued to strike for two more days, through October 22. The company ultimately suspended or discharged 86 of the strikers.

2015 Board Decision

The dispute first reached the Board in 2015. The Board decided the strike was protected by Section 7 of the NLRA and that the company unlawfully suspended and discharged the striking employees. CC1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers, 362 NLRB No. 125 (June 18, 2015).

The NLRB applied Silver State Disposal Service, 326 NLRB 84 (1998). In that case, the Board developed a two-part test to determine whether a wildcat strike is protected: (1) whether the employees attempted to bypass their union and bargain directly with the employer; and (2) whether the employees’ position was inconsistent with the union’s position.

In ruling the company violated the law, the NLRB assigned little significance to the union’s October 20 strike disavowal letter, because it was the company that had distributed it to the striking employees.

D.C. Circuit Remand

The company appealed the decision to the U.S. Court of Appeals for the District of Columbia. CC1 Ltd. P’ship v. NLRB, 898 F.3d 26 (D.C. Cir. 2018). The Court remanded the case to the NLRB for further explanation of its conclusion that the wildcat strike was protected activity, focusing on the October 20 letter.

2019 Board Decision

Regarding the October 20 letter, the Board found that “[t]he mere distribution of the letter by the security guards cannot negate employees’ knowledge of the Union’s disavowal of the strike and legitimate their conduct in derogation of the Union’s position.” This was especially true, the Board said, because there was no evidence that the notification to the strikers was the result of manipulation or fraud, or that the third-party messengers engaged in misconduct, intimidation, or other coercion in distributing the flyers.

The Board noted that the letter was “facially bona fide” and, “under the circumstances surrounding the strike[,] amply sufficed to establish to the strikers that their Union opposed the strike.” (The Board also found significant the conspicuous absence of union leadership who supported or participated in the strike or conducted or attended the meeting at which the strike vote took place.)

The employees’ continued striking after the letter’s distribution was not protected by the NLRA, the Board ruled. The Board did not apply Silver State. Instead, it applied Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), where the U.S. Supreme Court held that a strike is not protected if it is an attempt to engage in separate bargaining from the striking employees’ union and interferes with the union’s exclusive bargaining representative status. the NLRB dismissed the challenges to the strikers’ suspensions and discharges. (In a footnote, the NLRB “question[ed] whether the standard set forth in Silver State Disposal for determining whether an unauthorized strike is protected is consistent with the principles of Emporium Capwell Co.”)


This decision is an example of the Trump Board’s efforts to clarify the standards with which employers must comply in protecting their businesses from overreaching activity by employees, non-employees and union representatives. (For another example, see our article, NLRB Strengthens Property Rights, Employers May Limit Off-Duty Access by Contractors’ Employees.)

If you have any questions about this decision or the NLRB, please contact a Jackson Lewis attorney.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.