Employers Beware, NLRB Shows Grit in Protecting Walkouts and Informal Strikes by Non-union Workers

Employers are finding themselves on thin ice in their response to employees’ walkouts, informal strikes and other activities that include demands for higher wages and improved working conditions. However, employees who participate in “general strikes” unrelated to work, such as the “general strike against Trump” planned for February 17, may not be protected by federal labor law.

The National Labor Relations Board (NLRB) has taken an expansive view of Section 7 of the National Labor Relations Act (NLRA), which protects workers who “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” and is applicable to union and non-union workers alike. Generally a “concerted activity” involves at least two employees acting together, but even a single employee acting on behalf of others  may be protected. Though the NLRB has long been thought of as an organization protecting union workers, it is applying Section 7 protections with increasing frequency to non-union workers.

A recent ruling by an NLRB administrative law judge involving WalMart employees who engaged in protests for higher wages and improved working conditions, known as the “Ride for Respect,” invoked Section 7 protections. The strike in May and June of 2013 was centered around WalMart’s annual shareholder’s meeting in Bentonville, Arkansas. In response to the strikes, WalMart disciplined employees who participated by counting the missed days as absences, resulting in the dismissal of some employees.

An administrative law judge held that WalMart threatened, disciplined and fired 16 workers at stores in 13 states for engaging in legally protected strikes and protests. In addition, the NLRB found the corporation used two national television news broadcasts to threaten retaliation against workers who took part in strikes or protests, which violated Section 8 of the NLRA. The judge ordered WalMart to allow the 16 workers to return to their jobs, and the company has filed to appeal parts of the ruling. According to law experts, this decision has broad implications for employers confronting non-union protests.

This isn’t the only case in which the NLRB has cracked down on WalMart. Six employees in a California store, most who were temporary associates, were disciplined for engaging in a work stoppage to protest mistreatment by their supervisor and to secure permanent jobs. The board often uses a 10-factor test to determine if the stoppage is peaceful or interferes with the employer’s production. In this decision, the board determined the protest passed the 10-factor test, however, Wal-Mart has filed an appeal with the D.C Circuit Court.

In addition to protecting walkouts and informal strikes, Section 7 also extends to social media posts by employees. Recently the NLRB ruled that employees who voice grievances online are protected if comments are part of discussions about problems in the workplace. Employers cannot discharge employees engaging in this activity, even if comments made contain profanities and defamatory statements about the business and its owners.

These rulings highlight the shift by the NLRB to protect union and non-union workers engaging in concerted activity. With an improved sense of protection under Section 7, employees are better able to walk off the job in protest. Though strikes that are “intermittent” aren’t protected under Section 7, the NLRB has demonstrated that it does not consider a one day walk-out to fall into this category. Recently, thousands of non-union fast-food workers participated in one day strikes throughout the nation to improve wages and working conditions. The shift in focus by the NLRB concerning Section 7 is a development of which all employers should be mindful.

Coulter Young is a research associate with the National Center for Policy Analysis.

Comments (2)

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  1. Coulter Young says:

    Some employers retaliated against workers who protested.


    • Joe Barnett says:

      Actions have consequences. I would describe the firings as a reaction to the employees not showing up (which is the number one reason people are fired), rather than retaliation for the employees’ demonstration of support for a political cause.

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