By Nelson Cary and Brian Dressel
Last week, an NLRB panel issued a decision in the case of Noah’s Ark Processors, LLC. The decision addresses a number of important labor law issues. Most importantly, this decision reinforces protections for employees who go on a strike on their own without authorization from their unions. These are known as “wildcat strikes.”
Typically, the NLRA does not protect employees who engage in wildcat strikes. But, exceptions exist, and the NLRB applied one here. In this case, a group of ten employees stopped working to protest wage disparities between senior employees and new hires. The aim of the strike was generally consistent with the union’s position on wage issues at the bargaining table. A labor contract with a no-strike provision had expired two months earlier.
The NLRB noted that the union did not expressly authorize the strike. But, a union steward explained the group’s actions to management and the union subsequently processed a grievance on behalf of the terminated strikers. On these facts, the NLRB held that the employees had engaged in protected activity. Thus, the employer’s termination of the striking employees was unlawful.
The wildcat strike portion of the opinion was not unanimous, with Member Emanuel (R) dissenting. He argued that there was no evidence that the union supported the work stoppage. Rather, he would have found that the employees who engaged in the work stoppage were presenting their own demands, not the union’s. Accordingly, there was no protected, concerted activity, and the terminations of the striking employees was lawful.
The decision also found a number of unfair labor practices by the employer. All three panel members agreed that the employer committed unfair labor practices when it unilaterally increased wages by $0.15 per hour while a collective bargaining agreement was still in effect, implemented a new wage system without giving the union an opportunity to bargain, refused to provide requested information to the union, failed to deduct and remit union dues from employee paychecks, attempted to circumvent the union by going to employees directly, and refused to bargain in good faith with the union by sending a representative without real bargaining authority.
Notably, as a result of these bargaining violations, the NLRB imposed some extraordinary remedies. These remedies are not always used, but the NLRB found that the employer’s conduct was sufficient to warrant them. The remedies the majority imposed included reimbursing the union for its bargaining expenses, reading aloud the NLRB’s notice to an assembled group of all employees, and issuing a bargaining order, with an accompanying bar on processing of any decertification petition.
In addition to serving as an example of a case where these extraordinary remedies are justified, the case serves as a reminder that not all wildcat strikes are unprotected. Under this decision, strikes by employees may still be considered protected activity, even without express authorization from the union, and even if they appear to be based on employee demands separate from the union.
Employers will need to look beyond a simple determination of whether the employees are acting with union authorization or support, and instead look for employee efforts to bypass their union or deal directly with the employer. Employers should therefore carefully review the situation before taking adverse actions against employees engaged in a wildcat strike.