Vice President, Labor Policy, U.S. Chamber of Commerce
May 18, 2017
A recent Detroit Free Press report about the dismissal of several individuals who skipped work to attend a political protest highlighted an interesting issue as labor unions and their allies begin to partner with seemingly unaffiliated groups for demonstrations and rallies.
The case in question involves 20 workers at a Michigan plant who were fired after attending a protest in February 2017. The workers then obtained legal representation and filed an unfair labor practice charge with the National Labor Relations Board (NLRB) alleging that the employer, EZ Industrial Solutions, “maintains and enforces rules preventing employees from talking to one another about workplace conditions.”
Interestingly, the news report stated that the Detroit office of the NLRB referred the matter to the Board’s headquarters “for further review.” What makes that move interesting is that the rationale for dismissing the workers would appear to be legal: they did not come to work and instead attended a a protest that had nothing to do with a labor dispute, and thus is not considered “protected activity” under the National Labor Relations Act (NLRA).
However, as this blog has pointed out, the current NLRB majority and its erstwhile Democratic members spent the last several years nitpicking employers’ handbooks looking for supposed violations of Section 7 of the NLRA, which safeguards concerted activities for “mutual aid or protection” in the workplace. [In fact, things got so silly that the Workforce Freedom Initiative actually wrote an entire report about it.] The Board has used the purported violations to order remedial measures, such as the reinstatement of employees.
As observers of labor policy know all too well, two new members of the NLRB are still needed to change the majority and restore balance to the Board’s policies. Until that happens, the EZ Industrial Solutions case could become a vehicle for the NLRB to expand the boundaries of protected activity—such as skipping work for a political protest.
That kind of precedent could bolster organized labor, which is facing budget cuts and starting to hitch its flag to outside groups’ protests, such as those held on May Day, rather than expend resources on its own demonstrations. Given the nature of those protests, which are not labor-related per se, workers who walk out to join them typically would enjoy much less, if any, protection under the NLRA. However, the policies of the bizarro world NLRB could change that if the Board decides to use alleged violations of the employee handbook to reverse disciplinary actions against employees who do not come to work in order to go to one of these events.
This potential expansion of protected activity could create difficulties for employers being targeted by groups like the Service Employees International Union, which have used similar episodic “strikes” in their ongoing campaigns for some time. Of course, a new Board majority could put a halt to using random handbook provisions as an excuse to protect unprotected activity, which underscores why impaneling those new members is a high priority.