Old Fashioned Protected Concerted Activity Stirred Up With A Twist

by Proskauer - Labor Relations

A recent NLRB ALJ decision illustrates the old and the new under the National Labor Relations Act (“Act”). The case is Gates & Sons Barbeque of Missouri, Inc. and Workers’ Organizing Committee, Kansas City, No. 14-CA-110229 (June 17, 2014).

In this case, the employer operated a successful chain of barbeque restaurants. One of the benefits offered to its employees (on a location by location basis) was a free meal, valued at between six and ten dollars, each day an employee was scheduled to work. The particular branch involved in this case was highly successful, and its employees enjoyed the free lunch benefit.

Enter the Workers’ Organizing Committee, an example of a growing phenomenon known as worker centers. Worker centers are generally closely affiliated with labor unions and their allies such as community organizers and certain religious groups and foundations. The Workers Organizing Committee has the goal of raising restaurant worker pay to fifteen dollars per hour. This is a goal shared by several other worker center groups targeting various employers in the restaurant and quick service food industry.

As a means of achieving its goal, the Workers’ Organizing Committee turned to a classic labor tactic – a strike. This was not the typical strike called by a labor union in support of a collective bargaining demand. Instead, it was a one-day strike engaged in by workers who, even if not represented by a union, still have the right to engage in “concerted activities for... mutual aid or protection” under Section 7 of the Act. Many years ago, the U.S. Supreme Court ruled that this kind of a strike is concerted activity which is legally protected under the Act. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).  In the absence of violence or other untoward conduct, strikers may not be punished or discharged for engaging in such a strike. The workers in this case engaged in a one-day strike in support of the demand for increased wages, and then exercised their right to return to work following the strike.

What did the employer do in response? According to the ALJ, following the workers return, the employer eliminated the workers’ free meal benefit. Now normally, in a non-union setting, an employer is free to grant, withdraw or adjust such terms and benefits. But here the ALJ found that the employer’s reason for of doing so was to retaliate against the workers for engaging in the protected one-day strike. As such, withdrawing the free meal benefit constituted a violation of Section 8(a)(1) of the Act, which makes it unlawful for an employer to restrain, coerce or interfere with the employees’ right to engage in concerted protected activity. As a remedy, the employer was ordered to reinstate the free meal benefit and otherwise make the employees whole for any other loss incurred as a result of the discontinuation of the benefit.

This case is in some ways very simple and straight-forward — old fashioned protected concerted activity. But it also has a twist – the involvement of a worker center. Much has been written about and debated over whether worker centers should be treated as labor organizations, subject to the same reporting and legal obligations and prohibitions that apply to traditional labor unions. Whatever the eventual outcome of those debates, employers and employees have rights and obligations under the Act that transcend the question. The tactics employed by the Workers Organizing Committee in this case have been and will undoubtedly continue to be repeated by worker centers — and employer responses must be framed within the rights protected by the Act, union or no union.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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