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What Employers Need to Know About the Planned Work Stoppage on May 1st
April 28, 2006
As immigration activists call for a nation-wide work stoppage on May 1, 2006, employers must be cautious in responding to employees' unapproved absences or requests for time off.
The Overriding Concern Is Whether Participating in the Proposed Work Stoppage Is Protected Concerted Activity under Section 7 of the National Labor Relations Act
Although there were several unfair labor practice charges filed with the National Labor Relations Board following the nationwide immigration rallies held on April 10, 2006, the General Counsel's Office of the National Labor Relations Board has not yet taken an official position on this issue.
The National Labor Relations Board will evaluate each case on an individual basis, depending upon the specific facts, and will likely take these factors into consideration: (1) whether the employee is acting in concert or alone; (2) whether the employee is represented by a union; (3) whether the employer's leave and/or attendance policies have been consistently enforced in the past; and (4) whether the absences are unprotected intermittent work stoppages.
Protected Concerted Activity. Section 7 of the National Labor Relations Act provides employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Applying prior administrative and court decisions, participation in the May 1st work stoppage may be considered protected concerted activity. The United States Supreme Court has noted that employees do not lose their protection under Section 7 of the National Labor Relations Act when they seek to improve the terms and conditions of employment through political channels. Eastex v. NLRB, 437 U.S. 556, 566 (1978). Furthermore, the National Labor Relations Board has previously held that activities designed to influence legislators and protect employees' interests fall under the "mutual aid or protection" clause of Section 7 of the NLRA and therefore, are protected concerted activities. See Kaiser Engineers, 213 NLRB 752 (1974), enforced, 538 F.2d 1379 (9th Cir. 1976).
Applicable to Non-Union Employees. It is important for employers to remember that employees do not need to be unionized in order to fall under the protection of the National Labor Relations Act. Courts have previously held that since unorganized employees do not have a representative, they may "speak for themselves as best they [can]." National Labor Relations Board v. Washington Aluminum Co., 370 U.S. 9, 14 (1962).
Attendance and Leave Policies. The significance of the enforcement of an employer's attendance and leave policies is currently a subject of debate. Generally, an employer may not discipline or discharge employees for engaging in protected concerted activity (e.g., group of employees walking off the job mid-shift in protest of wages). If the work stoppage or absence is protected concerted activity, some argue that an employer may be barred from implementing its existing policies. Other legal commentators take the view that attendance and leave policies, if consistently enforced, may be applied to employees engaging in protected concerted activity.
Intermittent Strikes. Employers who have employees who were absent from work because they participated in the April 10, 2006 nation-wide rallies also have another issue to consider ? whether participation in the April 10th rallies and May 1st work stoppage are unprotected intermittent strikes. Intermittent strikes, which involve an actual pre-conceived plan to engage in successive work stoppages, generally involving the same dispute, are not protected concerted activity. National Labor Relations Board v. Blades Mfg. Corp., 344 F.2d 998 (8th Cir. 1965). This issue will likely be raised with the NLRB by employers.
Employers should approach this issue in a reasonable, consistent and non-discriminatory manner.
Reasonableness. To the extent an employer's business operations can accommodate some or all employees' requests to miss work on May 1, 2006, an employer should do so. An employer's reasonableness in administering its attendance policies may be helpful in any subsequent litigation.
Consistency. An employer should also be mindful of granting personal time off on May 1st for reasons unrelated to the May 1 boycott (e.g., attending child's school function) while denying a request to participate in the May 1 boycott.
Non-Discriminatory. A number of discrimination claims have already been reported for discipline and discharge following the April 10th rallies. Consistent and nondiscriminatory enforcement of attendance policies is key to avoiding national origin and citizenship discrimination claims.
Discipline. Although even discipline short of discharge may be inappropriate should the boycott be found to be protected concerted activity, a reasonable approach at this time is to consistently enforce attendance and/or leave policies already in place. For example, if an employer has a leave policy that states that only 10% of the workforce can be out on personal leave or vacation at a given time, the employer may rely on this policy when employees are requesting time off to participate in the boycotts. Furthermore, employers may apply any attendance policies to those employees who are absent on this day. However, employers should only enforce leave and/or attendance policies in a manner consistent with past enforcement.
Discharge. An employer should not terminate an employee for participating in the work stoppage without first consulting legal counsel.
In this state of uncertainty, employers should be very thoughtful and cautious before implementing discipline, and certainly discharge, for immigration reform-related absences. If you have any questions, please contact Victoria Garcia, Leslie Selig Byrd, John Ferguson or other attorneys in the Bracewell & Giuliani Labor and Employment Law Section.