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Scopelitis Labor & Employment Newsletter - March 2019

by A. Jack Finklea, Donald J. Vogel

March 7, 2019

Scopelitis Labor & Employment News - March 2019

A Note on Steering Clear of National Labor Relations Act Problems

Union membership has been on a steady decline in the trucking and most other industries over the past 30 years. Such a decline may create a tendency to lose sight of the National Labor Relations Act (the “Act”) in everyday operations. The National Labor Relations Board (“NLRB”), however, has over the last few years made it clear that the Act’s protections do not necessarily require the involvement of unions or even union issues. A recent NLRB decision found employees were unlawfully discharged for discussing their wage rates. The decision highlights the need for the transportation industry and other employers to carefully scrutinize their employment practices. In short, supervisors should be trained to recognize the existence of protected employee conduct (regardless of whether the conduct involves union issues) and ensure protected conduct does not form the basis for discipline or discharge.

Lesson 1:  Employees are entitled to discuss their wage rates
The Act expressly protects an employee’s ability to engage in “concerted activities” for the purpose of “mutual aid or protection.”  In this recent case, two employees admittedly discussed their wages with other employees at the facility, and an Administrative Law Judge, affirmed by the NLRB, recognized the employees had a protected right to do so.  As such, the employer’s questioning of the employees, itself, violated the Act as an unlawful “interrogation” about protected activity, as did the employees’ subsequent discharge.   

Lesson 2:  When making disciplinary and termination decisions, documenting and supporting the reasons is crucial
Setting aside the protected nature of wage discussions, the employer argued that the discharge of the two employees had nothing to do with discussing wage rates.  Rather, the employer argued the firings were due to theft, mental instability, and poor performance.  The ALJ rejected those arguments because the termination letters to each employee contained no mention of theft, mental instability, or poor performance. Their personnel files likewise contained no mention of theft, mental instability, or poor performance. Of course, merely recording these reasons on a termination letter will not automatically establish an impenetrable shield against liability, but doing so nevertheless supports a legitimate discharge reason, and the more specific and detailed the reasoning is shown in personnel files, the more persuasive the references become. This advice holds true regarding all employee supervision and discipline – all such determinations should be supported by appropriate documentation.  

Lesson 3:  A Union vulnerability assessment and training may be worthwhile  
Although union organizing activity had nothing to do with the present case, the lack of rationale for pay rate disparities bred a sense of unfairness and is just the type of issue unions use to drive a wedge between companies and their employees.  Similar “wedge” issues involve adversarial relationships between employees and supervisors as well as a feeling of lack of security in the employment relationship.  Training supervisors in their interactions with employees can minimize the opportunity for unions to gain a foothold with employees.  Even absent the union context, training supervisors helps avoid the occurrence of conduct that may seem like a natural response to employee behavior, but one which would nevertheless violate the Act or other employment laws.

Contact Jack Finklea or Don Vogel for questions relating to protected, concerted activities or other issues affected by the Act. For any additional information on our Firm, please follow Scopelitis on social media or visit our Labor & Employment Practice Area page.


Scopelitis newsletters are intended as a report to our clients and friends on developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.

© Scopelitis, Garvin, Light, Hanson & Feary, P.C. 2019. All rights reserved.