If an employee makes unjustified complaints about wages and hours, you may be tempted to brand the person as a troublemaker. You might even take disciplinary action if the griping continues. But a new National Labor Relations Board (NLRB) ruling cautions that even a one-employee protest can be a protected activity under federal labor law-landing you in hot water if you interfere.
Broad Employee Protection
The National Labor Relations Act (NLRA) applies to most union and non-union employers regardless of how many employees you have. It protects workers’ rights not only to engage in union-related activities, but also to join together to protest or seek changes in the terms and conditions of their employment.
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Employees Ask For Meeting
The recent case was brought against a non-union electrical contractor, Mauka, Inc. Problems began after two workers wearing union T-shirts and buttons approached company vice president Paul Boros and demanded union wages and benefits. Boros told the workers he would not meet with the two of them together and instructed them to stop wearing union paraphernalia to work.After that exchange, the two workers made protest signs and picketed on nonwork time at their assigned job site. Boros pulled them off their jobs because of customer complaints and the next day photographed them picketing in front of Mauka’s shop.
Worker Walks Off The Job
One of the employees, Gregg Law, then informed Boros that he was going on strike to protest the discipline against him and his co-worker, as well as an earlier discharge of another employee.
The following day Law and a union representative picketed outside the shop carrying signs that read ‘Unfair Labor Practice Strike Against Mauka Electric.’ Boros allegedly told Law, ‘ I’m going to cut your head off for this, ‘ and photographed him again.
Several days later Law delivered a letter to Boros making an unconditional offer to return to work. He was told no work was available and a month later was notified that he was being terminated for abandoning his job.
Solo Striker Not Acting Alone
Law filed a complaint with the NLRB, which enforces the federal labor act. Mauka argued that the case should be thrown out because Law was not engaged in ‘protected activity.’ Under the federal statute, this is defined, in part, as activity ‘engaged in with or on the authority of other employees.’ In fact, Mauka said, Law acted alone and on behalf of himself only.
The NLRB disagreed and ruled that Mauka acted illegally when it fired Law because of his one-man strike.2 The NLRB acknowledged that not all individual protests rise to the level of NLRA-protected activity. But the board pointed out that in this case Law had originally picketed with another employee, made it clear that he sought to improve conditions for other workers besides himself, and had engaged in the strike with the union’s support.
Given these circumstances, the NLRB concluded that Law’s strike was ‘part and parcel’ of his union-organizing activity-and therefore protected from employer interference. Mauka was ordered to rehire Law and pay him four years of lost wages and benefits.
Proceed With Caution
The board’s decision demonstrates the importance of acting cautiously before penalizing a worker who makes a job-related complaint. Even if it appears the person is acting alone and not on behalf of other employees, it takes very little totransform what looks like an individual protest into a messy labor dispute. Here are some general points to keep in mind:
- Learn to recognize protected activity. Actions covered by federal law can occur in unexpected ways, from individual protests as in this case to an employee sending e-mail raising an issue about work conditions. Before disciplining or terminating a worker, always ask these questions: 1) Does the employee’s complaint involve workplace health and safety, wages, hours, benefits, discipline or union organizing? 2) Has the employee acted with others or sought the support of co-workers? and 3) Is the employee’s behavior nonthreatening and not extremely disruptive? If you answer ‘yes’ to each of these questions, the activity is probably protected.
- Handle discipline and performance issues carefully. You cannot take action against workers for their union organizing efforts or other protected activity. But if employees aren’t doing their jobs properly and would be disciplined or terminated regardless of the union activity, you can still do so. To protect yourself from both NLRA violations and potentially more serious retaliation claims, make sure the performance problems are well documented, warnings are given, and your policies and procedures are followed to the letter.
- Don’t threaten workers or monitor activities. The NLRB said the employer in this case also violated federal law when it photographed the striking workers, prohibited them from displaying the union logo at work, refused to meet with them as a group, and threatened one of them with physical harm for picketing. Although you can express your opinion about the merits of union representation, it’s illegal to actively discourage participation in union activities or suggest that those activities are being monitored.