Handle with care: Even nonunion strikers can present risk

Low-wage workers in cities across the country carried signs and voiced demands for higher pay last week, but those strikes and similar work stoppages last May differ from traditional walkouts.

Unlike in most strikes, the picketers aren’t part of a union although they are getting encouragement from organized labor, especially from the Service Employees International Union (SEIU). Instead of completely relying on a particular union, the movement is getting help from community activists and using the Internet to garner support for their cause with efforts such as the Fast Food Forward website, which calls on New York City workers to sign an online petition aimed at bringing wages up to $15 an hour.

During the week of July 29 fast-food workers, who often work at or near the $7.25 an hour minimum wage, were set to stage strikes in New York, Chicago, Detroit, Milwaukee, St. Louis, Kansas City, Missouri, and Flint, Michigan.

The advent of this new kind of labor action serves as a reminder to employers – even those whose employees are not part of the movement – that employers have responsibilities under the National Labor Relations Act (NLRA). Employers face risks if they’re seen to be interfering with those rights. The law protects both union and nonunion employees’ rights to engage in protected concerted activity. Employers also need to keep the dangers of retaliation in mind.

Employer precautions
John P. Hasman, a partner with the Armstrong Teasdale law firm’s St. Louis office, reminds employers that employees who act in concert with fellow employees or on behalf of other employees and strike over wages, benefits, or other terms and conditions of employment are engaged in protected concerted activity under Section 7 of the NLRA.

That doesn’t mean strikers are always protected, though. “Their actions may be unprotected if they walk off the job in a manner reasonably calculated to cause harm to the employer, such as a cook walking away from an open flame,” Hasman says. “Acts of picket line violence also would be unprotected.”

Employers need to be cautious in disciplining employees engaged in a strike over pay, benefits, and working conditions since such discipline would likely be found a violation of the NLRA, Hasman says. Also, employers must be careful about other ways to violate the Act, such as interrogating employees about their intent to strike or making threats to prevent employees from exercising their rights.

Disciplining employees for engaging in a protected strike can result in unfair labor practice charges being filed with the National Labor Relations Board (NLRB), Hasman says, “and if found guilty, an employer will be ordered to reinstate the employees and make them whole for all lost wages and benefits and post a notice to employees stating their rights under the NLRA.”

Brian Kurtz, a partner in the Chicago office of Ford Harrison LLP, agrees that employers must exercise care in dealing with employees engaging in concerted activity. Employees striking in the “Fight for $15” effort are likely engaged in protected concerted activity and can’t be fired or disciplined for that activity, but the picture may be different for employees from workplaces not directly involved in the fast-food campaign, he says.

There are NLRB cases that hold that leaving work without permission, even to participate in Section 7 activity, is not protected in some circumstances, Kurtz says.

“This issue came up in 2006 in major metropolitan areas when employees left work for the day without permission to participate in the ‘A Day Without Immigrants’ rallies,” Kurtz says. “Employees who were disciplined or terminated for leaving work filed unfair labor practice charges, and many of those were dismissed because the employees left work without permission to attend the rallies. The difference in the case of the fast-food employees is that they are walking off in direct protest of their own wages, hours, or working conditions.”

Labor union role
Even though the workers in the current wave of strikes aren’t working under union contracts, “this is undoubtedly a union-driven campaign, specifically the Service Employees International Union,” Kurtz says. “The organization taking responsibility for the Chicago protests is the Workers Organizing Committee of Chicago, which consists primarily of Chicago-area SEIU local unions. SEIU President Mary Kay Henry has been widely quoted on the campaign.”

Regardless of whether the strikes bring results, they signal a new tactic in employee efforts to better their pay and working conditions. Kevin McCormick, chair of the labor and employment section of the Baltimore law firm of Whiteford, Taylor & Preston, follows union issues closely, and he sees the nonunion strikes as a new way to attract attention for workers that traditional labor hasn’t targeted. Since turnover is high and wages are low, the fast-food industry hasn’t been an attractive target for labor organizers.

McCormick says he thinks “the playbook is from the Occupy Wall Street approach” in which the strikes get a lot of public attention and that brings in community groups, church leaders, and politicians who lend their support. The workers can get their message out in a broader way than if there were an organizing drive for a particular store.

If the nonunion strikes are successful, McCormick says they “could be very negative for unions.” Workers may decide there’s no need to pay dues if they can apply pressure that brings results without benefit of a third party. But he says that won’t stop unions from taking credit if the workers are successful in negotiating better pay and working conditions with their employers. “Other than SEIU, unions haven’t played much of a role, but they’ll try to make it look like they’re responsible,” McCormick says.