Your nonunion employees are still protected by the National Labor Relations Act

The NLRB applied a judgment against a nonunion company for concerted activity despite evidence to the contrary.

Many employers are unaware of the National Labor Relations Act which provides protection to employees even though those employees do not belong to a union. A recent decision by an Administrative Law Judge shows just how far this can be taken.

Walked off the job

According to attorneys Robert T. Quackenboss, Kurt G. Larkin and Elena Marsteller, of Hunton and Williams, LLP, “an NLRB administrative law judge (“ALJ”) issued a ruling finding that a nonunion automotive manufacturing facility in Alabama violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it terminated three employees who walked off the job over a holiday-season scheduling dispute.” These three workers were part of a maintenance crew which normally worked from 6 a.m. to 2 p.m. During the Christmas holiday of 2016 their hours were changed verbally to 6:30 a.m. to 2:30 p.m. but not on a written schedule. On December 22nd, the first day of the change, the three workers clocked out at 2 p.m. and went home. After an investigation revealed that the three had not talked to each other about leaving early and they were not working out some union agenda, the company fired them for walking off the job, but not until January.

Found to be concerted activity even though done independently

The plant the workers worked at was a Hyundai manufacturing facility. A union was attempting to organize the plant, so I am sure that is how the three workers found their way to the National Labor Relations Board to claim a Section 8 violation of the NLRA. Their case was heard by an ALJ who decided that, despite the evidence that the employees had not acted together and were not supporting a union, their actions were protected concerted activity and thus protected under Section 8(a)(1) of the NLRA. The ALJ ruled the company had wrongly interrogated the workers about alleged concerted activity thus further violating the law.


The company was ordered to reinstate the three workers and make them whole for all pay they missed. The company also had to inform the Social Security Administration to make proper adjustments and they had to make sure there were no tax penalties due to the lump wage check the employees were getting. They also had to post, for all employees to see, a statement that starts of “The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.” The notice then went on to admit the company had violated the law and promise they would not do so in the future.

What went wrong?

The company made the mistake of originally not making the schedule change in writing and the person that announced the change was not authorized to make the change. They also, in my opinion, waited too many days to take action. They should have suspended the employees, and then try to determine what the issue was. Instead they let the employees continue to work until January. And they were doing all this in the midst of suspected or known union activity.
If you find yourself in a situation try to look at your activity in the light of the National Labor Relations Act. Although the NLRB will be changing soon the lower structure of the ALJs will not be, and many of them will still be deciding based on the provisions of the previous administration. So be careful in your actions in cases of employees engaged in what could be described as concerted activity.

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