Old Fashioned Protected Concerted Activity Stirred Up With A Twist

A recent NLRB ALJ decision illustrates the old and the new under the National Labor Relations Act ("Act"). The case is Gates & Sons Barbeque of Missouri, Inc. and Workers' Organizing Committee, Kansas City, No. 14-CA-110229 (June 17, 2014).

In this case, the employer operated a successful chain of barbeque restaurants. One of the benefits offered to its employees (on a location by location basis) was a free meal, valued at between six and ten dollars, each day an employee was scheduled to work. The particular branch involved in this case was highly successful, and its employees enjoyed the free lunch benefit.

Enter the Workers' Organizing Committee, an example of a growing phenomenon known as worker centers. Worker centers are generally closely affiliated with labor unions and their allies such as community organizers and certain religious groups and foundations. The Workers Organizing Committee has the goal of raising restaurant worker pay to fifteen dollars per hour. This is a goal shared by several other worker center groups targeting various employers in the restaurant and quick service food industry.

As a means of achieving its goal, the Workers' Organizing Committee turned to a classic labor tactic - a strike. This was not the typical strike called by a labor union in support of a collective bargaining demand. Instead, it was a one-day strike engaged in by workers who, even if not represented by a union, still have the right to engage in "concerted activities for . . . mutual aid or protection" under Section 7 of the Act. Many years ago, the U.S. Supreme Court ruled that this kind of a strike is concerted activity which is legally protected under the Act. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962). In the absence of violence or other untoward conduct, strikers may not be punished or discharged for engaging in such a strike. The workers in this case engaged in a one-day strike in support of the demand for increased wages, and then exercised their right to return to work following the strike.

What did the employer do in response? According to the ALJ, following the...