Lebau & Neuworth has been closely monitoring two recent decisions of the National Labor Relations Board (NLRB) that highlight the protections provided to workers under the National Labor Relations Act but are often overlooked and under-appreciated. Importantly, a worker does not have to be a union member to benefit from these legal protections.
The NLRB is an independent federal agency that protects the rights of most private-sector employees to join together – with or without a union – to improve their wages and working conditions under the National Labor Relations Act.
The case Hoot Winc LLC (d/b/a Hooters) arose from a bar’s bikini contest involving staff and a $300 prize. Many female waitresses and bartenders who took part in the contest thought it was “rigged,” and when two staffers spoke up about their concerns, the employer fired them. The NLRB held that the firing of one of the employees who complained was illegal because the staffer was protesting working conditions and pay (“the prize money.”) In addition, the employer’s work rules that banned employees from discussing tips and customer service were found to be too broad and illegal because the rules could apply to voicing pay complaints.
The other case, Plaza Auto Center, Inc. v. Aguirre, also involved an employee very angrily complaining about pay issues on the job. The employer (Plaza) had told the employee (Aguirre) that he had to follow policies and procedures … and that he should not complain about his pay, telling him twice that if he did not trust the employer then he need not work there.
At some point, Aguirre lost his temper and in a raised voice started berating Plaza. During the outburst, Aguirre stood up in the small office, pushed his chair aside and told Plaza that if Plaza fired him, Plaza would regret it. Plaza then fired Aguirre.
The NLRB used a four-factor test to determine if the employee engaged in protected activity: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices. The NLRB found that the only factor that did not favor the worker was the third – the nature of the employee’s outburst, loud and threatening. The remaining factors favored the employee, so the NLRB found that the worker has engaged in protected activity and ordered him reinstated with lost wages.
These two decisions showcase the scope of protection provided by the “protected activity” right found within the National Labor Relations Act, which Lebau & Neuworth adamantly support and believe all employees should be aware of in order to properly protect themselves in the workplace.
Lebau & Neuworth is highly experienced and committed to protecting employees and ensuring they take full benefit of the protections of the National Labor Relations Act.
