United States: Recent NLRB Decision A Reminder That NLRA Can Protect Actions Of A Single Employee

So far, it has been a long quiet Summer with little NLRB activity, – with the exception of the recent  ruling that temporary agency employees can be part of a bargaining unit with the principal employer's employees, of course.  More change may be coming, though.  The end of the NLRB's fiscal year is September 30 and one can always expect a flurry of decisions to issue before that date.

The Board is not completely inactive, of course.  We recently saw an interesting decision on management rights.

And, the Board also recently issued a decision concerning the scope of "protected concerted activity."  When people think of the National Labor Relations Act they think of unions, of course.  The Act also evokes group action, like when employees band together to organize a union.  Generally speaking, in order for employees to be protected under the Act, two things must be present.  First, the activity must be "concerted."  Second, the purpose of the activity must be "for the purpose of collective bargaining or other mutual aid or protection."  Under Board precedent, activity is typically "concerted" only if engaged in by two or more employees.  What most people don't realize, however, is that the Act, under certain circumstances, can and does protect an individual employee's actions.

In Omni Commercial Lighting, Inc., 364 NLRB No. 54 (July 19, 2016) the NLRB ruled that an employee was fired in violation of the Act even though the employee's actions leading up to his discharge were taken on his own behalf, and not in concert with others.  Nor were the employee's actions motivated by a desire to spur group action.

In Omni, employee, an electrician and union member, interviewed with a job at the employer, Omni. In the Chicago area there were three different collective bargaining agreements covering various aspects of electrical work.  There was the Master Agreement ("MA"), the Sign Agreement and the Lighting Maintenance Agreement ("LMA").  The MA provided the highest wages and benefits and the LMA provided the lowest wages and benefits.  The employee made clear in his interview that he wished to work under the MA, and received a response from the employer that it would be "fine."  The employee accepted a job with a wage rate consistent with that under the MA.

A few months later, the employee discovered that the employer had actually signed the LMA with the union.  The employee complained both to his union and the employer, insisting that the employer had executed the wrong contract.  At a meeting to discuss the complaint, the employer initially told the employee that if he didn't like working under the LMA he could go find another job.  Before the employee could respond the employer fired the employee.  The employee filed a charge against both the union and the employer asserting unlawful discharge.

The Board held, in a 2 to 1 vote, that the employee was violated for his protected activity in violation of Section 8(a)(1) of the Act.  The Board noted that the U.S. Supreme Court in NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984) had adopted the Board's "Interboro doctrine" which held that "an honest and reasonable invocation of a collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his right was violated."

The Board concluded the "collectively bargained right" invoked by the employee in Omni was his belief that he was entitled to the benefits of the MA, the richer collective bargaining agreement.  The issue then became whether the employee's belief was "honest and reasonable."  The Board majority had no problem finding that the employee had an honest and reasonable belief, noting that the employee had made clear in his job interview that he wanted to work under the MA, to which the employer responded "fine."  The employee was paid the existing wage rate under the MA which was further indication the employee thought he was working under the MA.  Finally, the employee performed the same work he had performed for his predecessor employee while working under the MA.

One Board member – Miscimarra – dissented, writing that he would not find a violation of the Act because the employee was not asserting a right, – even a mistaken one – under a collective bargaining agreement:

Indeed, rather than reasonably and honestly invoking a right grounded in the applicable agreement –the LMA–[the employee] did precisely the opposite:  he spurned any rights afforded by the LMA and contended that the rights arising under a different contract (the MA, to which the Employer and Union were not signatory) should govern his employment.  The Interboro doctrine simply does not apply to these facts.

When running through a checklist of potential risks when terminating an employee, it is perhaps not a bad idea to keep the NLRA in mind as well.  It can and does apply to individual employee situations.

Recent NLRB Decision A Reminder That NLRA Can Protect Actions Of A Single Employee

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