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National Labor Relations Board Finding of Unfair Labor Practices

By Ryan McCabe

The National Labor Relations Board determined that a construction company committed unfair labor practices by firing two electricians after a dispute concerning the company?s new ?break in place? policy. The electricians were upset after the company began requiring employees to take their 15-minute breaks at their workstation instead of retreating to nearby ?dry shacks.? The company changed its policy because 15-minute breaks were turning into 25 and 30 minute breaks.

The day the new policy was implemented, the electricians took their morning breaks in the dry shacks as usual. An electrical supervisor stopped by various work areas to warn the electricians that they would be written up for continued violations of the policy. According to the opinion, the two electricians responded by stating that it ?was going to get ugly? if they were terminated.

In determining whether the electricians? remarks fell under protected activity, the board looked at the four factors set forth in Atlantic Steel Co., 245 NLRB 814 (1979). These factors are used to distinguish ?opprobrious? behavior, which lacks protection from the National Labor Relations Act, from protected behavior. The four factors are the place of discussion, the subject matter of the discussion, the nature of the employee?s outburst, and whether the outburst was provoked by the employer?s unfair labor practice.

Because the employer distributed the warnings in front of other employees in a work area and during work time, it was expectable for the electricians to protest the warning in the same arena. Likewise, the subject matter under discussion factor weighed in favor of protection under the second factor because the remarks were ?directly related to the electricians? union-supported protest.? The third Atlantic Steel factor weighs in favor of protection in this case because the electricians? outbursts were spontaneous outbursts not ?premeditated and sustained personal threats.? Finally, in analyzing the fourth factor, the board noted that the electricians? conduct was not provoked by an unfair labor practice, just a new policy.

The board ordered the construction company to reinstate the electricians and repay their lost earnings and benefits.

Click here to read the NLRB's opinion in its entirety.

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Full post as published by The South Carolina Construction Law Blog on September 21, 2010 (boomark / email).