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Some employers think the National
Labor Relations Act applies only to union activities. However, a
recent case illustrates how the NLRA protects nonunion employees
involved in labor disputes as well.
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 a
recent unpublished Sixth Circuit Court of Appeals case, Arrow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.
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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.
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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. (For more information on the
National Labor Relations Act, see, Guide to Federal Laws and Orders,
page 20:2. For additional information on NLRA and employee
discussions of compensation, see, Pay Procedures, Chapter 305, page
305:9, note 16.) |
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