United States: Labor Board Broadly Defines Protections For Non-Union Strikers

Last Updated: April 26 2011
Article by James R. Redeker

On January 13, 2011, National Labor Relations Board Chairman, Wilma Liebman, stated that "most people in the workplace don't have a clue" that the National Labor Relations Act applies to non unionized employees and that "developing the message is the challenge" for the Obama Board. Rising to that challenge, the Board recently broadened protections for non-union employees who engaged in a work stoppage to force an employer to change its wage policies. See American Scaffolding, March 18, 2011.

In this case, the employer was a contractor for Exxon at a refinery scheduled for a "changeover." During a changeover, the refinery is shutdown. Consequently, any delay in completing the work causes a significant loss revenue. Exxon estimated its loss during a changeover to be "millions of dollars a day." American Scaffolding's 200 employees were joined by 800 others, mostly from other contractors, in doing the changeover. The American Scaffolding employees were to assemble scaffolds necessary for the other contractor employees to perform their services.

At the shift change on one of the first days of the project, about 100 employees of American Scaffold refused to work, seeking to pressure the employer to change its new policy that a scheduled wage increase would become an incentive bonus, paid only to those employees who met various production and conduct standards.

The work stoppage began at a location within the refinery property. The employees presented their grievance to the project manager and waited for an answer. While waiting, the project manager urged them to go to work and, when they refused, asked the employees to leave the refinery area. The employees complied and moved to a parking lot owned by Exxon and adjacent to the refinery.

After approximately one hour, Exxon asked the employees to leave the parking lot. The employees complied and moved to a vacant lot across the street, also owned by Exxon. After approximately another hour, Exxon asked them to move completely off its premises and the employees moved to a nearby park.

While some of the employees heeded the requests of their employer and went to work, a significant number continued their concerted refusal. The employees who continued the stoppage were subsequently discharged from their employment. The entire work stoppage consumed 5.5 hours and the losses to Exxon were estimated as being in the millions of dollars.

The employees filed an unfair labor practice charge, asserting that they were engaged in activity protected by the NLRA and, therefore, their discharges violated the law, requiring reinstatement with full back pay.

In her decision, the Administrative Law Judge reviewed numerous Labor Board decisions and concluded that the Board has applied a balancing test to determine when the property rights of the employer would prevail over the statutory rights of non-union employees engaged in work stoppages. So long as the "in-plant work stoppage is peaceful, is focused on a specific job-related complaint, and causes little disruption of production by those employees who continue to work, employees are entitled to persist in their in-plant protest for a reasonable period of time" and their conduct would be protected by the NLRA.

Applying the law to the facts in this case, the ALJ gave particular weight to the fact that the job action lasted over five hours, impacted nearly 1000 workers' ability to accomplish their work and idled hundreds of contractor employees in addition to those of the scaffolding contractor itself. Noting that in numerous prior cases, the Board had held that work stoppages lasting for less than an hour were found to be unreasonable, the ALJ held that, "at some time" during the five and half hour period, the employees had lost their statutory protections. Accordingly, she held that the discharges for refusing to return to work did not violate the NLRA.

In reversing the ALJ, the Board noted that the employees had exited Exxon's property upon request and, therefore, the "in-plant work stoppage" rules did not apply because the striking employees were not denying their employer or Exxon the use of its property. Therefore, a balancing test was not warranted. Further, even if a balancing test were appropriate, the Board stated that the argument that the work stoppage lost its protection because of the economic harm was antithetical to the basic principles underlying the NLRA, "i.e., the right of employees to withhold their labor in seeking to improve their terms of employment and the use of economic weapons such as work stoppages as part of the 'free play of economic forces' that should control collective bargaining...The protected nature of the work stoppage in this case was not vitiated by the effectiveness of its timing."

There are several take-aways from this case, apart from the fact that it underscores that non-union employees have rights protected by the NLRA, even when the exercise of those rights cause extraordinary damage. In assessing what to do when non-union employees engage in a work stoppage, an employer's decision is impacted first by where the work stoppage is taking place. If the employees are on the property of the employer, a balancing test must be used to determine whether the employees are protected from discharge. The factors relevant to this test are (1) the reason the employees have stopped working (whether the protest is over a term or condition of employment), (2) whether the work stoppage is peaceful, (3) whether the work stoppage interferes with production (beyond the natural effect of the withholding of labor by the strikers) or deprives the employer of its use of its property, (4) whether the employees had an adequate opportunity and method for the presentation of grievances, (5) whether the employees were given a warning that they must leave the property or face discharge, (6) the length of the stoppage (stoppages as short as thirty minutes have been found to be too long), (7) whether the employees were represented, (8) whether the employees remained on the premises beyond their normal quitting time, (9) whether the employees attempted to seize the employer's property. If, on balance, the factors favor the employees, the conduct is protected. If the balance tips toward the employer, the conduct loses its protection and the employees may be discharged without violating the NLRA. The balance test is at the employer's risk, taking into account that the Board has the advantage of judgments based on hindsight. The stakes are huge, since, if the employer decides wrong and discharges the employees, the Board may order reinstatement with full back pay for each of the strikers. The American Scaffolding case took three years to be decided by the Board.

If the work stoppage by non-union employees takes place off the property of the employer, the current Board would likely find that the employees would be protected by the NLRA indefinitely, meaning that the employer may replace them but not terminate their employment, unless there is a clear indication from the conduct of the employees that they are abandoning their jobs.

American Scaffolding is clearly part of the Obama Board's agenda to more aggressively apply the NLRA to non-union workplaces and unrepresented employees. We can expect the current Board to search out other opportunities to make its point, including a closer scrutiny of codes of conduct that may "chill" organizing activities, a narrowing of the definition of supervisor to increase the number of employees entitled to the protections of the NLRA, and permitting contractor and "temporary" employees to be part of a bargaining unit of regular employees.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. The Duane Morris Institute provides training workshops for HR professionals, in-house counsel, benefits administrators and senior managers.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
James R. Redeker
 
In association with
Related Video
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Law Practice Management
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.