The current situation is an appropriate time to remind employers of their obligations under federal laws dealing with not only safety protests, but any protests remotely relating to wages, hours, and terms and conditions of employment. The National Labor Relations Act protects employees from adverse action from employers for "union or other concerted activity." Such activities go way beyond union matters, and the new Administration has announced that it will take the broadest possible interpretation to protect employees engaging in "protected concerted activity" for their mutual aid or protection. Such activity may be two or more employees banding together regarding issues relating to the terms and conditions of employment, or one employee speaking on behalf of others, or even seeking to induce actions by others. During the pandemic, for example, this writer has experienced numerous incidents of employees not only complaining, but on occasion engaging in sit-ins or walking off the job.
While most know that union employees who strike, in the absence of a no-strike clause in a collective bargaining agreement, are protected from discharge or discipline. Many don't know that the same rules are applicable to walk-outs by non-union employees unrelated to unions. The main exception is that the walk-outs must somehow be causally related to wages, hours, or other terms and conditions of employment. For example, it is unlikely that there can be a protected walk-out over whom the employer selects as customers. Walk-outs over political issues are particularly controversial.
There are some other limitations as to how a walk-out is carried out. Under current National Labor Relations Board (NLRB) rules (which may be changed by the current Administration), while a short-term walk-out or strike is lawful, there is a doctrine that prohibits union and non-union workers from taking part in intermittent strikes, which are generally defined as a series or pattern of short-term strikes for a common goal. Similarly, persons walking off the job cannot engage in a "sit-in" strike, which is a refusal to leave the employer's premises while refusing to work for a considerable period of time after given every opportunity to comply. Wal-Mart has particularly been victimized by intermittent strikes, resulting in a 2019 NLRB ruling in favor of Wal-Mart finding walk-outs were intermittent strikes because they were part of a "plan to strike, return to work, and strike again repeatedly."
A union may try to disguise the use of intermittent strikes by calling separate walk-outs having distinct origins and distinct demands, or claiming that the cause of the walk-out is the employer's unfair labor practices.
Persons walking out cannot legally be disciplined for failing to give advance notice or failing to call in early the day of the walk-out. Nor can the employer count the days as absences under an attendance-control program. Further, once the walk-out is over, if the union or an individual offers to return "without condition," the employer must allow the worker to return to his or her original position. The exception is that the law allows employers to hire permanent replacements for workers engaged in an "economic" strike, meaning one not caused by unfair labor practices.
Editor's Note: Walk-outs create situations where experienced labor counsel is a necessity to guide employers in their reaction. The specific words used by management towards those walking out may determine the outcome. For example, if the employer tells those walking out that they are fired if they don't return to work, it will be an unfair labor practice subject to reinstatement and back pay later on. If the employer simply informs the employees that they are subject to being permanently placed, it is probably lawful. Similarly, management may inform those walking out that they must return to work or leave the premises, and after a period of time, if they refuse to leave the premises or return to work, authorities may be called, and there is the potential for disciplinary action including discharge. The exact words used by management are quite important, and witnesses should be present to verify what was said. This writer has experienced numerous walk-outs over the last six months over issues related to the pandemic such as "hazard" pay.
This is part of our October 2021 Newsletter.
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