Following on the heels of similar strikes in recent weeks in New York and Chicago, hundreds of St. Louis area fast food restaurant employees walked off the job May 9, which affected more than 30 area businesses including a number of fast food franchise businesses. The strikes spread to Detroit on May 10. These employees joined a growing wave of protests over wages and other terms and conditions of employment in what is one of the fastest-growing segments in the U.S. labor market. You may even remember similar actions by Wal-Mart employees on Black Friday in 2012.
Although strikes are often associated with labor unions, the workers involved in these impromptu strikes are not unionized. Instead, the efforts are being supported by a coalition of organizations, including labor groups, nominally coined “alt-labor,” that are not legally unions. But this does not mean that their activities are not protected by U.S. labor laws, specifically the National Labor Relations Act (“NLRA”). Enacted in 1935, the NLRA protects the right of workers to join together to bargain collectively with their employer and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The NLRA also protects the right of workers to refrain from any and all such activities.
Among other things, employees covered by the NLRA (which includes most, but not all, private sector employees) have the right to walk out or strike, even if they are not in a union. Many employers who are unfamiliar with unions or do not regularly deal with unionized workforces, can sometimes fall into a trap for the unwary by disciplining or discharging employees who are engaged in protected, concerted activities such as a strike. Even though failing to report for work or even walking out during the middle of a shift impacts an employer’s operations and may, in fact, violate an attendance policy, depending on the circumstances, an employer may actually be prohibited from disciplining them or questioning them about such protected activities.
In some cases, however, striking and picketing may not be protected. One such circumstance involves what is known as “recognitional picketing.” This occurs when employees, and perhaps non-employees, picket an employer with the goal of obtaining recognition. When employees (and non-employees) picketed Wal-Mart on Black Friday, Wal-Mart filed a charge with the National Labor Relations Board. This charge was ultimately resolved when the union involved agreed to cease organizing the employees.
For franchisors and franchisees, an ounce of prevention is truly worth a pound of cure. To lawfully confront the potential for such activities, wise and savvy employers need to train their supervisors and managers now, before any such activity begins. Trained managers and supervisors not only have the tools to respond effectively and lawfully should such an incident occur, but are vital to warding off such activities in the first place.
Armstrong Teasdale’s employment and labor attorneys can assist employers in preparing for, and responding to, organizing activity. Being prepared is vital to an employer’s success in the face of union or union-like activity.