The Continued Relevance of the NLRA to Non-Union Workplaces

One of the most famous cases showcasing the nonunion dimensions of section 7 is the U.S. Supreme Court’s opinion in Labor Board v. Washington Aluminum Co., 370 U.S. 9 (1962). In that case, a group of seven nonunion employees walked off the job to protest what they believed were overly cold working conditions. The Court upheld the finding of the National Labor Relations Board (NLRB) that the work stoppage was fully protected by section 7 of the NLRA and that the employees discharged in connection with the walkout, in violation of section 8(a)(1), were entitled to reinstatement to their jobs. The Court rejected arguments that the nonunion employees lost protection of the NLRA because they had failed to present specific demands in advance of the walkout. It also reaffirmed then-existing and still-controlling law that the employees’ complaints are not required to be objectively reasonable to receive statutory protection. Subsequent cases in the federal circuits have continued to emphasize this principle. See, e.g., NLRB v. Jasper Seating Co., 857 F.2d 419 (7th Cir. 1988).

The Washington Aluminum court also noted in passing the distinction between “mere griping” by individual employees—respecting strictly personal work complaints—and concerted activity by more than one employee possessing a group workplace nexus. Individualized griping and concerted complaints about non-work-related matters are ineligible for protection under section 7. The Court observed that not even clearly work-related concerted activity is entitled to universal protection under the NLRA. Unlawful or violent conduct, conduct in breach of contract, and conduct that is insubordinate or otherwise “indefensible” may all serve to render otherwise protected activity unprotected under the act. The teachings of Washington Aluminum have remained largely unchanged through the subsequent five decades between then and now. It is as true today as it was then that work-related labor activities by nonunion employees (often protest activities) are protected by section 7 of the NLRA, subject to some of the caveats I have outlined. See Jasper Seating Co., 857 F.2d 419 (describing an unlawful protected concerted discharge in a nonunion context as “an open and shut case”).

Despite the breadth of section 7, the courts have underscored for decades that the provision’s protections extend only to concerted employee activity. Thus, the federal circuit courts in consistent lines of authority, anchored frequently by the Third Circuit’s durable opinion in Mushroom Transportation v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964), have continued to hold that an individual employee’s mere griping about working conditions is not protected by section 7. Moreover, under Mushroom Transportation and subsequent NLRB cases such as Daly Park Nursing Home, 287 N.L.R.B. 710 (1987), and Meyers Industries(Meyers II), 281 N.L.R.B. 882 (1986), group complaints that are not geared toward futureaction by employees may be deemed unprotected.

Equally persistent, however, has been the analytical problem of determining when seemingly isolated, individual conduct is in reality the beginning of or preparation for group activity. Thus, if I complain to my boss about my working conditions, under what circumstances might it be found that I am in reality also complaining about the entire work group’s working conditions? The distinction is important because a group complaint may be protected by section 7 while a truly individual complaint would not enjoy such protection. The NLRB and the courts have had a difficult time drawing lines on this question, a difficulty that was on display in the recent “Facebook cases,” a subject to which I will turn shortly.

Section 7 protection is a topic that continues to have contemporary relevance. Washington Aluminum arose decades ago in an industrial setting that seems somewhat dated to some observers of the current labor-and-employment landscape. The principles of section 7, however, are equally applicable in a service economy. The recent nationwide work stoppages of fast-food workers present a case in point. Many observers (small employers in particular) may not understand how nonunion restaurant workers can plausibly engage in work stoppages without being subject to instant discharge under the employment-at-will doctrine. The answer is that the right to engage in work stoppages (or not) is legally protected under section 7 and belongs to all employees covered by the NLRA, not just unionized employees. If NLRA-covered nonunion employees, like most fast-food restaurant workers, concertedly walk off the job, an employer fires them for engaging in the work stoppage at its peril. In Trompler v. NLRB, 338 F.3d 747 (7th Cir. 2003), for example, Judge Posner underscored the continuing vitality of Washington Aluminum. In Trompler, six of eight nonunion machine-shop employees on the second shift walked off the job, without providing their employer advance notice, to protest a shift supervisor’s alleged sexual harassment of one of the six. Judge Posner agreed without discussion that Washington Aluminum applied. The only question was whether the reasonableness of the employee protest was irrelevant, as it would normally be, when the subject of the protest was the conduct of a supervisor (overseeing of supervisors is presumptively a managerial prerogative), a fact not present inWashington Aluminum. Judge Posner found that reasonableness was required in such a context but deferred to the NLRB’s determination that the employees’ walkout was in any case “reasonable.” There was not the slightest suggestion throughout the discussion thatWashington Aluminum was not as vital as ever.

Nevertheless, to say that nonunion work stoppages are protected by section 7 is not to say that they are excused from adhering to general legal rules limiting the right to strike. Thus, while the restaurant workers’ strikes may be protected under section 7, thereby barring employers from firing the workers outright for participating in the work stoppage, the workersmay be subject to “permanent replacement” if the nature of their dispute is “economic,” as appears to have been the case given the emphasis the striking workers placed on wage inadequacy. A replaced striker is entitled to reinstatement at the cessation of the strike but only upon the departure of the employee who replaced the striker. See NLRB v. Browning-Ferris Indus., 700 F.2d 385, 389 (7th Cir. 1983). Further, if the strikes are carried on intermittently and unpredictably over a sustained period of time, the NLRB and the courts may classify them as “partial” work stoppages, a classification that could strip the strikes of their protected status. See, e.g., U.A.W. Local 232 v. Wis. Emp’t Relations Bd., 336 U.S. 245 (1949), rev’d on other grounds.

The recent Facebook cases also represent another contemporary application of section 7 to nonunion workplaces. The percolating problems in those cutting-edge cases, in reality, have been quite traditional. First, it is often hard to tell when an individual posting is “concerted” because of the difficulty of distinguishing between a give-and-take electronic “conversation” and a series of individualized comments. Second, it is hard to discern pre-organizational preparation for employee group action in what can “feel” like isolated and inchoate snide criticisms of management. The underlying question remains the same in the context of the new technology, however: whether employees are engaging in concerted activities for the purpose of mutual aid or protection. In Hispanics United of Buffalo, 359 N.L.R.B. No. 37 (2012), for example, five workers employed to assist victims of domestic violence were discharged by their employer after one of their coworkers complained to a manager about being “bullied”—as the manager characterized the conduct under the employer’s rules—by the five discharged workers on Facebook. Essentially, it appeared that the discharged workers anticipated that the complaining worker was about to approach management with a claim that they, the discharged workers, had not been adequately performing their jobs. The NLRB concluded that the discharged workers were preparing for group action—purportedly deliberating about an appropriate response to their coworker’s allegation of poor work performance—in Facebook discussions. The case garnered much national attention because of its purported social-media implications. The general public tended to see such cases as general government regulation of Facebook usage in the workplace. The actual legal question, however, was whether the discharged employees’ conduct fell within section 7 of the NLRA. Without a section 7 legal theory, the NLRB would not have subject-matter jurisdiction over such cases. Whether employees could in theory be protected by section 7 is a function of whether the Facebook activity was both protected and concerted. A full analysis of Hispanics United of Buffalo is beyond the scope of this discussion, but it is enough to say that the underlying facts did not lead to an easy conclusion that the scrutinized employee activity was covered by section 7. Facebook cases will continue to arise as long as section 7 exists in its present form—see, e.g., Bettie Page Clothing, 359 N.L.R.B. slip op. at 96 (Apr. 19, 2013) (holding employee Facebook postings complaining about supervisor’s conduct and discussing book on worker’s rights in California to be protected concerted activity)—and will continue to be highly fact-sensitive because of the nature of the open-endedness of section 7.

While the main purpose of this article is to explain to non-labor-law specialists that section 7 of the National Labor Relations Act applies to private-sector nonunion employees and to demonstrate that section 7 continues to impact the contemporary nonunion workplace, it also is important to briefly discuss underlying labor-law policy. Assuming the applicability of section 7 to nonunion contexts, why does it apply and what is the policy explanation? In short, American labor-law policy is premised primarily on maintaining “industrial peace.” The essence of the underlying rationale of section 7 is that it is better to allow and protect the expression of employee dissatisfaction, and even dissent within certain boundaries, than to permit the rudiments of an employment dispute to be swept under the rug. Mixing metaphors, if enough festering disputes are swept under the rug, the “pot” containing workplace controversies could boil over, leading to strikes and other serious forms of industrial strife and unrest inimical to interstate commerce. The policy of section 7 generally makes sense depending on the extent to which one accepts that the risk of industrial strife is real and ultimately justifies the costs of regulation.

Keywords: litigation, employment law, labor relations, protected concerted activity, Section 7, National Labor Relations Act, work stoppages, mutual aid or protection, Facebook cases, fast food restaurant workers strikes

_{Michael C. Duff is a professor of law at University of Wyoming College of Law.}

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