Greyhound workers' heated argument was protected activity

Dive Brief:

Greyhound Lines, Inc. violated the National Labor Relations Act's (NLRA) when it fired a long-time employee after a confrontation with a manager, a three-member panel of the National Labor Relations Board (NLRB) has ruled (Greyhound Lines, Inc. and Louis Little, No. 08-CA-181769 (NLRB, May 6, 2019)).
The confrontation began, the NLRB said in its opinion, when Louis Little — the chief union steward at its Cleveland, Ohio, facility — approached the manager with a co-worker to discuss the manager's alleged mistreatment of the co-worker. The pair approached the manager in an enclosed hallway where no customers or employees were present. The manager denied he had done anything wrong, yelled and pointed his finger at the two, the NLRB said. Little told the manager, the NLRB said, that this was the very behavior they had come to discuss and, a heated exchange ensued, during which both Little and the manager used profanities and "aggressive physical gestures." An administrative law judge found that Little was engaged in protected activity during the confrontation; all four relevant factors — the location of the discussion, the subject matter, the nature of the employee's outburst and whether the outburst was provoked by unfair labor practices — favored Little, the judge said, ruling that Greyhound had unlawfully discharged him for engaging in protected activity.
The NLRB agreed. While the nature of Little's conduct and the location of the confrontation were neutral and, as a result, did not weigh in favor of finding that Little retained NLRA protection, the other two factors — the subject matter of the confrontation and the extent to which it was provoked by Greyhound's manager — weighed in his favor.

Dive Insight:

Employees have the right to act alongside co-workers to address work-related issues, the NLRB says. Concerted activities, or when "two or more employees take action for their mutual aid or protection regarding terms and conditions of employment," are protected by the law. Concerted activity can also include circulating a petition asking for better workings hours and a concerted refusal to work in unsafe conditions, the NLRB says. Unionizing, discussing wages and collective bargaining by employees are all protected activities, too.

Employers can infringe on these protected activities in lots of ways. In Lowe's Home Centers, LLC and Amber Frare, the NLRB ruled that Lowe's policy forbidding workers from discussing pay was unlawful. An anti-loitering and anti-soliciting policy that a Michigan Burger King used to discipline employees observed using the eatery's parking lot to discuss wages violated the NLRA, the NLRB ruled. NLRB also declared worker participation in the February 2017 "Day Without Immigrants" protected concerted activity; that conclusion came in response to an unfair labor charge filed against an auto parts manufacturer after it fired employees who took part in the nationwide walk-out.

However, workers can "lose protection by saying or doing something egregiously offensive or knowingly and maliciously false, or by publicly disparaging an employer's products or services without relating the complaints to a labor controversy," the NLRB has explained. Last month, a three-member panel of the NLRB ruled that profanity-laden complaints by an employee to another in a public restroom about a client did not constitute protected concerted activity in Quicken Loans, Inc. and Austin Laff.

HR may want to train managers of the types of activities that are protected under the NLRA and, going forward, keep an eye on H.R. 2474 (The PRO Act) as it progresses in Congress. The bill would strengthen union protections and create stronger penalties for employers that violate workers' NLRA protections.