Dive Brief:

• An employer didn't violate the National Labor Relations Act (NLRA) when a manager yelled at workers taking protected heat breaks to "get back to work," the National Labor Relations Board (NLRB) determined Dec. 4, reversing an administrative law judge's (ALJ) ruling.
• The employees involved in the dispute loaded, unloaded, moved and sorted merchandise stored in steel shipping containers for Orient Tally Company and California Cartage Company LLC. Relying on California law, several of the workers began jointly taking heat breaks in August 2015, according to case documents. An administrative law judge found that the breaks were protected concerted activity under the NLRA and that the employer violated that law when it implicitly threatened employees with unspecified reprisals, in violation of the NLRA. The Board, however, disagreed. The manager "did not make any statement suggesting that adverse action would be taken against the employees," the Board said. "He simply ordered employees to return to work. That he did so loudly and aggressively does not convert his order into a threat."
• The Board agreed with the ALJ, however, that the employer violated the law when it "coercively interrogated" an employee about a flyer about working conditions, directed him to bring his work-related concerns to management rather than voice them elsewhere and threatened another employee with termination.

Dive Insight:

Employees' concerted activities – unionizing, discussing wages, advocating for better working conditions – are protected by the NLRA, and several enforcement actions from this year illustrate that.

In In-N-Out Burger, Inc. v. National Labor Relations Board, No. 17-60241 (July 6, 2018), the 5th U.S. Circuit Court of Appeals upheld an NLRB ruling in favor of employees who were wearing pins to work advocating for a $15 an hour minimum wage. The court pointed out that the NLRA has long been recognized to protect the right of employees to wear items such as buttons, pins and stickers relating to the terms and conditions of employment, unionization and other protected matters.

And earlier in the year the Board released a memo opining that worker participation in a "Day Without Immigrants" was protected concerted activity. The board’s memo came in response to an unfair labor charge filed against a suburban Detroit auto parts manufacturer after it fired 18 employees who took part in the nationwide walkout.

Also deemed unlawful this year was a Lowe's policy prohibiting pay discussions and a Burger King franchisee's attempt to restrict wage discussions in its parking lot.

While the Board has been slowly shifting toward employer-friendly positions in recent years, changes have faced numerous hurdles and the law's mandate remains.