NLRB Rules in Favor of Employees Disciplined for In-Store Protest

strikeThe National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the rights of workers to engage in various activities related to labor organizing and collective bargaining. It prohibits employers from interfering in such activities and from retaliating against workers for engaging in protected activities. The National Labor Relations Board (NLRB) investigates alleged violations and adjudicates complaints. This summer, it considered whether an employer violated the NLRA by disciplining a group of employees who participated in a brief work stoppage. It found that the employees’ actions were protected and that the employer was in the wrong. Wal-Mart Stores, Inc., 364 NLRB No. 118 (Aug. 27, 2016).

Section 7 of the NLRA grants broad protection to “self-organization,” “bargain[ing] collectively through representatives of [employees’] own choosing,” and “concerted activities” related to those purposes. 29 U.S.C. § 157. Employers may not “interfere with, restrain, or coerce employees” who are exercising these rights, according to § 8(a)(1) of the statute. Id. at § 158(a)(1). Since the list of protected activities in § 7 is quite expansive, the NLRB and the courts have interpreted its extent in various situations through caselaw.

The “concerted activities” described in § 7 include “mutual aid and protection.” Id. at § 157. The NLRB has interpreted this to include work stoppages and other “activities engaged in for the purpose of applying economic pressure on employers.” Wal-Mart, slip op. at 3, citing Atlantic Scaffolding Co., 356 NLRB 835, 836–837 (2011). It developed a 10-part test for balancing employees’ and employers’ rights, with factors including the reason for the work stoppage, whether it was “peaceful,” whether it “interfered with production or deprived the employer access to its property,” the duration of the stoppage, employees’ “opportunity to present grievances to management,” and the reasons for disciplinary action. Quietflex Mfg. Co., 344 NLRB 1055, 1056–1057 (2005).

According to the NLRB’s decision in Wal-Mart, five of the six employees involved in the work stoppage were “temporary remodeling associates” working on renovations to a store in Richmond, California. Wal-Mart at 1. The sixth individual was a permanent employee. The purpose of the stoppage was “to protest mistreatment by their supervisor and to secure permanent employment.” Id. They alleged that their immediate supervisor routinely insulted them, made racially derogatory statements in their presence, and opposed any efforts by them to organize or work with a union. The six employees went on strike in mid-October 2012, corresponding with the employer through union representatives.

On the morning of the store’s reopening, November 2, 2012, the six employees began the work stoppage at 5:24 a.m., before the store’s scheduled opening at 6:00 a.m. They stood in the customer service area of the store with a banner until about 6:05 a.m., and they moved to different areas of the store until police officers arrived and asked them to leave at 6:37. They had all left the store by 6:52. Each protesting employee was subject to discipline, although it is not clear if any of them was terminated.

Applying the 10-part Quietflex test, the NLRB found that the work stoppage was protected. It met the NLRA’s definition of “concerted activity,” it was peaceful and of short duration, and it “neither interfered with the provision of services to customers nor prevented the [employer] from accessing its property.” Id. at 4.

To speak with a civil rights attorney about a matter in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.

More Blog Posts:

Employer’s Social Media Policy Found to Violate Federal Labor Law by NLRB, The New Jersey Employment Law Firm Blog, September 29, 2016

NLRB Rules Against Employer that Fired Employee for Giving Testimony to State Legislature, The New Jersey Employment Law Firm Blog, September 16, 2016

NLRB Rules Against Company that Prohibited Employees’ Smartphone Use at Work, The New Jersey Employment Law Firm Blog, February 25, 2016

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