Are the six employees covered by the NLRA? Does it matter that they are not represented by a labor union?

CASE #2

BACKGROUND Bird Engineering manufactures go-carts and minibikes in Nebraska and annually purchases and sells goods and services valued in excess of $50,000 using sources outside Nebraska. The plant includes a lunchroom and a break room that have vending machines, but no cafeteria. The vending machines contain chips, cookies, peanuts, sometimes rolls, soup, hot chocolate, and coffee. No employees are represented by a labor union. Production is cyclic with peak production in November, so night shifts and temporary employees are generally added to various production departments beginning in August. Because of thefts of employee and company property, unauthorized use of company property, suspicion of drinking during lunch breaks, and employees returning tardy from lunch breaks, management implemented a closed campus rule for night shift employees. Under this new policy, night shift employees were prohibited from leaving the plant during the night shift lunch break. This is legal by Nebraska state law. The welding department added a night shift a week after the closed campus rule was instituted, and the welding department was not aware of this rule. After management learned that the welding department was violating the closed campus rule, five night shift employees of the welding department were called to the supervisor’s office, informed of the closed campus rule, and told by their supervisor that they would be terminated if they left the plant building during their lunch break. The five employees protested that the policy was illegal and asked to be granted permission to leave for lunch because they did not bring any lunch with them to work that day. Their request was denied. The five employees decided to protest the closed campus rule by following their past practice of leaving the premises for lunch. Termination slips were issued to them when they returned from their lunch outing 30 minutes later. That same evening, at about 10:30 p.m. (the normal lunch break time for the night shift), a sixth employee, Christina Hodgeman, was preparing to go to her van and eat her lunch when her supervisor informed her that if she left the building she would be fired. Hodgeman normally ate her lunch in her van in the parking lot and had been told when she was hired a month ago that employees were permitted to go to the parking lot but should clock out. She had been absent the previous three days because of the flu and asked permission to go to her van to get her lunch and medication. This request was denied. Feeling that she needed her medication, Hodgeman responded, “Well, if there’s no other alternative, then write me out a termination slip.” The supervisor obliged. NATIONAL LABOR RELATIONS ACT EXCERPT RIGHTS OF EMPLOYEES. SECTION 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3). UNFAIR LABOR PRACTICES. SECTION 8. (a) It shall be an unfair labor practice for an employer (1). to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.

QUESTIONS

1. Are the six employees covered by the NLRA? Does it matter that they are not represented by a labor union?

2. Consider the five employees who left together. Assuming that the employees are covered by the NLRA, did Bird Engineering violate Section 8(a)(1) by firing the five employees? In other words, were they discharged for activities that are protected by Section 7? (Hint: If the employees were on strike, it is protected activity. If their action was insubordination, it is not protected.)

3. Consider the sixth employee who went to her van to get her medicine. Assuming that the employees are covered by the NLRA, did Bird Engineering violate Section 8(a)(1) by firing her?

4. If Bird Engineering violated the NLRA, what is the appropriate remedy?

Budd, John; Budd, John. Labor Relations: Striking a Balance (p. 147). McGraw-Hill Higher Education. Kindle Edition.