Hunton Employment & Labor Perspectives

On March 6, 2017, 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. The ALJ found that the employees were engaged in protected concerted activity despite the fact that they denied discussing the decision to leave work before their shifts had ended.

The three employees, who were part of a five-member daytime maintenance crew, were scheduled to work from 6 a.m. to 2 p.m. from December 22 through January 2, 2016. The crew’s leader later informed the maintenance employees that their hours had been changed to 6:30 a.m. to 3 p.m. On December 22, 2016 the employees clocked out at 2 p.m. in spite of the scheduling change. After an investigation, the employees were terminated for walking off the job.

The ALJ acknowledged there was no evidence the employees were engaged in union activity. Furthermore, even though the employees denied discussing with one another the decision to clock out early, the ALJ found that the fact that the employees walked out of the plant at the same time for the same reason, along with the employer’s unsubstantiated suspicion of collusion, was enough to establish concerted activity. The ALJ gave “no weight” to the answers given by the employees to questions posed by the employer’s counsel as to whether they were engaged in a strike or a protest. The ALJ held: “[e]mployees’ subjective characterization of their actions is not determinative in the Board’s objective analysis of whether the employee has engaged in protected concerted activity.”

While a more conservative NLRB might take a different view of “concerted activity” in the future, employers should continue to be aware that until then, ALJ’s are likely to continue to have a broad view of the types of behavior that could constitute concerted activity under the NLRA.