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Some employers think the National Labor Relations Act applies only to union
activities. However, a case illustrates how the NLRA protects nonunion employees
involved in labor disputes as well.
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Nonunion employers may be surprised to learn that the National Labor Relations Act
(NLRA), the federal law giving employees the right to join unions and engage in collective
activity, does not limit protection to employees who participate in traditional union
activities. The NLRA also protects nonunion employees who, as a group, engage in certain
protected activities related to their terms and conditions of employment. These
protections are the issue in an unpublished Sixth Circuit Court of Appeals case, Arrow Electric Company, Inc. v. NLRB, 6th Cir., Nos. 97-5734 and 97-5951 (9/18/98). In
that case, the court found that employees who walked off the job to complain about their
supervisor’s behavior were protected by the NLRA.
Supervisor Causes Nonunion Walkout
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In Arrow, four nonunion employees had significant work-related disputes with their
immediate supervisor. According to the employees, the supervisor threatened to withhold
their paychecks, spoke in a disrespectful and demeaning way, and "sneaked
around" to observe their work and make negative comments on their performance. They
discussed these problems in two grievance meetings with a company manager, who encouraged
them to contact him again if the problems persisted. The problems reoccurred. When the
employees could not contact the manager by phone to discuss the problems, they left the
worksite before the end of their shift to meet with Arrow’s personnel manager. The
employees returned to work the following day. The company then terminated them for leaving
the jobsite without notice. The employees filed suit, claiming they were fired for the
walkout and that it was a protected activity under the NLRA.
Court Defines Walkout As "Protected" Activity
In its decision, the Sixth Circuit noted that the NLRA gives employees the right to
participate in concerted activities for the purpose of collective bargaining or other
mutual aid or protection. For a concerted activity to be protected, it also must center
around a controversy involving the terms and conditions of employment. Analyzing the facts
surrounding the walkout, the court agreed that the supervisor’s belligerent and
overbearing behavior directly affected the employees’ ability to perform their jobs.
Accordingly, their group action to complain about work conditions, including walking out
on their jobs, was protected by the NLRA. Therefore, the Court further determined that the
employer violated the NLRA because it fired the employees for engaging in protected
activity.
Pay Policies Also May Infringe on NLRA Rights
As a practical matter, most employers will not be faced with an employee walkout as a
result of a workplace dispute. However, the Sixth Circuit’s decision makes it clear
that employers must be careful about taking action against employees who act as a group to
make complaints or discuss workplace conditions. For example, employers with policies that
prohibit employees from discussing their pay also may violate the NLRA since higher wages
are a frequent objective of employee organizations, and pay is a term and condition of
employment. In another NLRA case, Franklin Iron and Metal Corp. and Hill, 148 LRRM 1246
(NLRB 1994), enforced at 83 F.3d 156 (6th Cir. 1996), the employer violated the NLRA
because it prohibited employees from discussing pay with each other. Thus, employers
should examine their pay and disciplinary policies to make sure they do not violate the
NLRA.
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