HolmstromKennedy

NLRB Increases Protection for Nonunion Employees

By: Alexander J. Mezny

Section 7 of the National Labor Relations Act (“NLRA”) protects the rights of nonunionized as well as union employees who are not supervisors to engage in concerted and other protected activities, including discussion of wages and terms and conditions of employment with others. 29 U.S.C. § 157. The National Labor Relations Board (“NLRB”) has recently and famously begun to protect nonunionized employees who complain about their terms and conditions of employment such as their treatment and wages over social media.  Other NLRB jurisprudence – which technically always has applied to nonunionized employees – is now being actively enforced against nonunionized employers to protect nonunionized employees:

  • Under longstanding NLRB precedent, it is a violation to terminate employees who are inappropriate or abusive while exercising Section 7 rights unless the employee’s actions are so “opprobrious and egregious as to render him or her unfit for further service.” Atlantic Steel Co., 245 N.L.R.B. 814 (1979).
  • A brief, on‐the‐job work‐stoppage is a form of economic pressure entitled to protection under the Act. Molon Motor & Coil Corp. v. N.L.R.B., 965 F.2d 523, 525 (7th Cir. 1992).

The March 2, 2016 Seventh Circuit case Staffing Network Holdings, LLC v. N.L.R.B. reminds us that these rights extend not only to unionized employees or discussions over social media, but to many everyday confrontations on the assembly line. In Staffing Network Holdings, an employee who was asked to work more quickly said he would work no faster for $8.25 an hour and was sent home. Another employee (Griselda Barrera) complained the first employee’s treatment was unfair, triggering Section 7 protection. That conversation continued and Barrera was terminated the same day, in part for continuing to discuss the matter on the production line instead of working herself and for disrupting the production of others by continuing to discuss the matter.

On March 2, 2016, the Seventh Circuit Court of Appeals affirmed Barrera’s reinstatement with back pay from November 15, 2012.

It is also worth noting that the employees at issue were all provided by a staffing agency and it is likely in the future that the NLRB will look to the end employer as well as the staffing agency for lost wages damages. Let’s be careful out there!