Group Employee Walkout Is Protected Concerted Activity Under the NLRA

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NLRB v. Washington Aluminum Co., 370 U.S. 9 (U.S. 1962) (0 other reports)

Author: Irene Stavrellis Englert, Englert Legal Consulting, LLC.

In NLRB v. Washington Aluminum Co., +370 U.S. 9 (U.S. 1962), the Supreme Court considered whether employees who left their work place without affording the employer an opportunity to remedy an employment condition engaged in "concerted activity" protected by the National Labor Relations Act (NLRA).

Section 7 of the NLRA gives employees the right to self-organization, to bargain collectively and to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." +29 USCS § 157 . Under Section 8(a)(1) of the NLRA, an employer's interference with, restraint or coercion of employees in their exercise of these rights is considered to be an unfair labor practice. +29 USCS § 158(a)(1) . If an employee believes that an unfair labor practice has been committed, the employee must file a charge with the National Labor Relations Board (NLRB), an independent federal agency vested with the power to handle such charges. Appeals from NLRB decisions are brought by filing a petition for review with the Court of Appeals.

In this case, the Court held that the employer committed an unfair labor practice when it fired seven employees who had left work without permission on claims that it was too cold to work. The Court found that the employees did not lose their NLRA right to engage in concerted activities just because they failed to afford the employer an opportunity to remedy the condition.

Key Points

The Court holds that the NLRA protects "concerted activities" whether they take place before, after or at the same time employees make a demand of their employer.
Because the employees had no bargaining representative at the time they made their demand, they were not required to make a specific demand in order for their activities to fall under NLRA protection.
A running dispute between employees and the employer concerning a condition of employment qualifies as a "labor dispute" under the NLRA.

Background

The employees in this case worked in a machine shop that had no insulation and had numerous doors to the outside that had to be opened frequently. The main source of heat was an oil furnace located in an adjoining building. A number of the eight machinists working in the shop had complained from time to time to the company's foreman about the cold working conditions.

On January 5, 1959, the weather was unusually cold, with high winds, a low temperature of 11 degrees and a high of 22 degrees. When the employees arrived that morning, they found the shop to be bitterly cold due to the weather and to the fact that the oil furnace had broken down during the night.

One of the employees, Mr. Caron, went into the foreperson's office and explained how cold the building was. The foreperson, seeing some of the employees huddled together, said "if those fellows had any guts at all, they would go home." Mr. Caron then told his co-workers what the foreperson had told him and said "I am going home, it is too damned cold to work." After discussing the work conditions with Mr. Caron, all eight employees decided to leave with him. They thought that if they all went home, they could "get some heat brought into the plant that way."

As they started to leave, the foreperson persuaded one of the employees to stay on the job, but the other seven went home. When the company's president learned of the walkout, he decided that all seven employees should be terminated, and the employees were immediately notified of their discharge.

The employees filed a charge against the employer with the NLRB, arguing that the employer committed an unfair labor practice when it terminated them for their group walkout.

The NLRB found that the employees engaged in "concerted activity" under the NLRA when they walked out in protest to the company's failure to adequately heat the machine shop. As a result, the NLRB concluded that the employees' discharge amounted to an unfair labor practice under the NLRA. Executing its authority under Section 10(c) of the NLRA, the NLRB ordered the company to reinstate the discharged employees to their previous positions and to make them whole for losses resulting from the unlawful termination of their employment. The company appealed this decision to the appeals court.

The appeals court denied the enforcement of the NLRB's order. Finding that the employees "summarily left their place of employment" without affording the company an "opportunity to avoid the work stoppage by granting a concession to a demand," the court concluded that the employee walkout did not amount to concerted activity protected by the NLRA. The court further found that the employees were not justified for their conduct in violating the company's rule against leaving the job without permission. Finally, the court found that the NLRB exceeded its power when it ordered reinstatement and back pay, because the company had discharged the employees "for cause." The NLRB appealed this decision to the United States Supreme Court.

Decision

The Supreme Court held that the employees had engaged in protected concerted activity when they left work without permission. The Court found that the employees did not need to present a specific demand upon the company to remedy the cold conditions in the machine shop. The Court interpreted the language of Section 7 to be broad enough to protect concerted activities, "whether they take place before, after or at the same time" a demand is made.

The employees were wholly organized and they had no bargaining representative to present their grievances to their employer. Before they walked out, they had repeatedly complained to company officials about the cold working conditions in the shop. The cold conditions on January 5 brought their individual complaints "into concert," resulting in the group walkout. With no bargaining representative, the walkout was the most direct course the employees could take to let the company know that they wanted a warmer machine shop. The Court found that the group walkout was enough on its own and that a specific demand was not required for the employees to be entitled to NLRA protection.

The Court disagreed with the company's argument that the walkout was not associated with a "labor dispute" within the NLRA's meaning. Section 2(9) of the NLRA defines "labor dispute" as "any controversy concerning terms, tenure or conditions of employment . . . ." +29 USCS § 152(9) . The Court found that the running dispute between the employees and the company over the cold work conditions fell within the NRLA's definition of a labor dispute. The fact that the company had already undertaken to repair the furnace did not change the fact that there was a labor dispute. As the Court explained, the reasonableness of the employees' decision to walkout is irrelevant to the determination of whether a labor dispute exists or not.

Finally, the Court rejected the company's argument that because it had an established plant rule forbidding employees to leave work without permission, there was justifiable "cause" for discharging the employees, separate and apart from any concerted activities. The Court acknowledged that Section 10(c) of the NLRA does authorize an employer to discharge employees for "cause." +29 USCS § 160(c) . However, an employer cannot terminate an employee for engaging in protected concerted activity, which the Court found to have happened in this case.

As a result, the Court found that the NLRB correctly ordered for the reinstatement of the employment of the discharged employees, and reversed and remanded the case to the appeals court so that the NLRB order could be enforced in its entirety.

Commentary

This case gives employers cause for caution before discharging employees after a group walkout or other forms of concerted activity taken to protest working conditions. Whether or not the employees' conduct is a violation of company policy, if the employees decide to engage in an action to have previously ignored demands addressed, such action could be considered protected concerted activity. Further, employees do not have to make a specific demand before engaging in the action if they have no bargaining representative to make the specific demand on their behalf. Take note that in order for the employees' concerted activity to be protected by the NLRA, the action must not fall within the normal categories of unprotected concerted activities such as those that are unlawful, violent or in breach of contract.

Finally, a running dispute between employees and their employer can qualify as a "labor dispute" within the NLRA's meaning. Even if the employee conduct is unreasonable in the face of such a dispute, the reasonableness of the employees' decisions to engage in the concerted activity is irrelevant to the determination of whether a labor dispute exists. Therefore, before terminating employees who have engaged in a group walkout or other types of concerted activity, employers would be well advised to examine the circumstances surrounding the concerted activity prior to issuing any termination orders.