Protected Concerted Activity

What if..... I come into my office in the morning and several employees are standing around at the gate refusing to come to work?

What you may be facing is concerted, protected activity. The one thing you do not want to do, without checking with knowledgeable counsel, is to walk out and tell the group that they had better come in to work or they will be fired.

The overriding concern is determining whether the action is protected, concerted activity. Generally speaking, in the absence of a contract with a labor organization prohibiting a work stoppage by employees, they have a statutory right to engage in protected concerted activity for mutaul aid and protection or in seeking union representation. That means that when you have employees lawfully acting on behalf of themselves and others in attempting to force you, as the employer, to make some type of concession related to their employment situation or to recognize a union, they cannot be discharged, disciplined or discriminated against for doing so. Concerted action includes a strike or other stoppage of work over wages, hours, or terms and conditions of employment. If you are a non-union employer and two or more employees decide to walk out because the plant is too cold or because they want more money or because they do not want to have overtime forced upon them or for any other reason connected to their employment, they can do so. if you react by firing them, the NLRB will find you to have violated Section 8(a)(1) of the Act and require you to not only rehire them, but to also pay them lost wages and benefits.

The rules may be different if there is a union contract that contains a no strike clause. In such circumstances the union may lawfully waive an an employee's right to strike during the contract. In such a case, discharge may be permitted. When faced with such a situation, though, seek counsel as soon as possible. The stoppage may not be protected. For example, if the group is refusing to work in support of abolising the death penalty, there may be no nexus to work and the stoppage may be unprotected. On the other hand, even with a union contract and a no strike clause, a work stoppage may still be protected. In any case, taking the wrong action can be very costly. One final word of caution, if someone offers you a petition or a stack of cards, or asks you to recognize a union as the spokesperson from the group, do NOT accept the documents or agree to meet with a representative. If you do so, you may have unwittingly recognized a union as your employees' exclusive bargaining agent.

In the "What If" feature of BizKeys you will be provided with many such crisis cituations with helpful information on how to properly manage them.

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