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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 These protections are the issue in a recent unpublished Sixth Circuit Court of Appeals case, Arrow Electric Company, Inc. v. NLRB, 6th Cir., Nos. 97-5734 and 97-5951 (9/18/98).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. Supervisor Causes Nonunion Walkout 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. (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.) This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice. For more articles please click here.
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