Workers' Rights: Caveat Employer

Even without a union, your employees have certain rights under federal law that you should know about.

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Bill, who worked for an electric specialty supply company, was unhappy with the way the company's employee credit union was being managed. During his lunch period he voiced his concerns to coworkers and circulated a petition among them. The company learned of Bill's activities and fired him for stirring up trouble. Bill responded by filing a charge with the National Labor Relations Board.

Bill alleged that he had been discharged for engaging in the kind of concerted employee activities that are protected by Section 7 of the National Labor Relations Act, which states: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...."

The company countered by saying that Bill had acted on his own and not in concert with his coworkers. Besides, the company argued, there was no labor organization involved in the activities leading to Bill's discharge; therefore, Section 7 didn't apply. The NLRB disagreed and ordered the company to reinstate Bill with back pay.

The company in this case had made a costly mistake although not an uncommon one. Many nonunion companies feel that if they are not the target of a union organization campaign, the NLRA doesn't apply to them. Nothing could be further from the truth. Union and nonunion employees have important rights under this segment of federal labor law. And sometimes even the activities of a single employee, like Bill, acting entirely on his own, will come under the umbrella of Section 7.

What are concerted activities? Whether or not one's employees are engaged in protected, concerted activities can sometimes be the decisive factor in whether a discharge or other disciplinary action resulting from these activities can be made to stick. As the introductory example suggests, the labor board and the federal courts emphasize the impact of employee activities, rather than the number of employees involved, when they settle Section 7 disputes.

Many of the cases that arise under Section 7 concern union members. Others involve employees in nonunion companies who try to win their coworkers over to the union cause. It is clear that an employee is protected by Section 7 from discharge or other discipline when he tries to talk up unionization among his fellow employees, or when he attempts, even on his own, to enforce an existing collective bargaining agreement. In fact, an employee has the right to discuss any aspect of wages, hours, or working conditions with his coworkers. He can even hand out fliers or circulate a petition at the plant, provided he does so on his own time and doesn't disrupt plant efficiency or safety standards (by passing out his handbill on the warehouse floor, for example, where discarded fliers could pose a hazard to hurrying workers). And he is protected by Section 7 when engaged in these activities even if they are illconceived and unsuccessful.

Of perhaps greater interest to smaller companies that are neither unionized nor faced with a unionizing campaign is the case of seven workers who walked off their jobs at an aluminum plant to protest the cold temperature inside their shop. The Supreme Court held that, when they punched out without the supervisor's permission and headed home right after work began, they were engaged in protected, concerted activity. And when they reported for work the next day, they were entitled to resume their work, unless the employer had hired permanent replacements in the meantime (which he had not). Their subsequent discharges were illegal, and the high court granted them reinstatement with back pay. That they belonged to no union was irrelevant to their rights.

Likewise, employees who strike to protect the rights of a single worker are viewed by the courts as engaging in mutual aid and protection on the theory that "there but for the grace of God go I". In a case that carried this philosophy to its extreme position, the NLRB held that employees at a plastics plant who struck to protest the firing of a supervisor were engaged in protected concerted activity because, while the supervisor strictly speaking was not a coworker, he had "a direct impact on the employees' own job interests and on their performance of the work they are hired to do...."

When Section 7 doesn't apply. While the actions of a single employee operating alone sometimes qualify as protected concerted activities, conversely there will be times when concerted activity will go unprotected by Section 7 regardless of how many employees engage in it. For example, suppose a company's employees were to strike to protest the company's sales to South Africa, Poland, or the Soviet Union. The company could discharge these employees and refuse to reinstate them, even if their jobs remained open. Indeed, the U.S. Supreme Court recently ruled illegal a longshoremen's boycott of goods bound for the U.S.S.R. The longshoremen were striking to protest the Soviet invasion of Afghanistan.

Contrast this result to the general rule that when employees strike to protest wages, hours, or working conditions, they are entitled to reinstatement after the strike, unless permanent replacements were brought in during the work stoppage. In fact, if replacements are permanently hired, striking employees still may demand to be placed on a list for rehiring as the permanent replacements leave and the old slots reopen -- even if this happens months after the strike ended, whether or not the strikers were represented by a union.

Workers can engage in sympathy strikes on behalf of the members of a different union or department at the same plant, or on behalf of workers at another division of the company. But they cannot use half-measures, such as the selective refusal to handle goods coming into their shop from the struck plant. In a case involving Montgomery Ward & Co., clerks in one of the company's facilities refused to process orders sent over from another branch where a strike was in progress. A federal court sustained the company's discharge of these workers, saying, "While these employees had the undoubted right to go on a strike and quit their employment, they could not continue to work and... accept the wages paid to them and at the same time select what part of their allotted tasks they cared to perform...."

Similarly, workers who engage in brief, periodic "quickie" strikes or slowdowns to disrupt production and pressure the employer fall outside Section 7's protection and may be discharged without recourse. If they wish to use the economic coercion of a work stoppage, they must subject themselves to the possible hardship that a strike can entail.

When a union held a series of unannounced meetings during working hours to disrupt production, because it feared that the company could outlast the rank and file in any strike it called, the company was justified in discharging union stewards who organized the meetings. Furthermore, employees cannot refuse to work reasonable overtime while continuing to work their regular shifts. A federal appellate court condemned such refusal as "a strike on the installment plan." Discharge for insubordination, it ruled, was an appropriate penalty by the company.

Shop rules curbing concerted activities.

Sometimes the means chosen by employees to press their points will be protected by Section 7, but the employer nonetheless will be free to restrict the concerted activities in terms of time and place.

Suppose, for example, that Bill, the employee who sought to change the practices of his company's credit union, had attempted to distribute a flier outlining his plan for reform. Almost certainly, he would have been free to hand out the flier to coworkers in the lunchroom during any of his work breaks. However, it is almost equally certain that management has the right to forbid him to distribute his broadside during working time, on the theory that such activity could arguably interfere with employee efficiency and safety.

Here, as in many cases, an ounce of prevention is worth a pound of cure. The employer who wishes to preempt activities such as Bill's during work time and on the shop floor should promulgate "no solicitation" and "no distribution" rules before a specific situation arises. The labor board usually presumes such rules to be valid exercises of the employer's prerogative to promote safety and efficiency, provided these rules are consistently applied. Thus, if an employee wishing to solicit support for a union is forbidden to approach coworkers on the shop floor under a rule that reads, "No solicitation of any type is permitted in the factory or offices during working hours," then supervisors and foremen cannot solicit for the United Way or the company's flower fund during those times and places either.

If the employer has permitted such forms of solicitation in prior years, and the new rule coincides with the advent of organizing activities by the employees, the labor board's presumption is likely to cut the other way.

Lastly, in this vein, it is worth noting that in a few situations -- for instance, the sales areas of a retail store and the customer-seating areas of a restaurant -- staff can be forbidden to discuss organizing activities and grievances against the company. The rationale relates in part to product-disparagement cases, the assumption being that such discussion, even by employees on a break, is bad for business. Secondly, the manager can argue that dissension vocalized by clerks, waiters, and waitresses upsets the clientele.

While Section 7 provides broad protection for both unionized and nonunionized employees, it allows management sufficient latitude to protect the legitimate interests it has in safety and efficiency of operations. However, the company that overreaches that latitude risks costly consequences, such as litigation and reinstatement with back pay.

A good pragmatic rule is never to discharge an employee in haste; and, when in doubt, consult a labor lawyer to be sure of your legal footing.