Even Non-Union Workers Who Refuse to Work Have NLRA Protections

Issue:
Two long-term employees, non-union computer programmers, have announced that they refuse to work because they have discovered that they are being paid less than the industry average wage. Their manager orders them to get back to work. They refuse, and state that they want a guarantee of a wage increase before they work any longer for substandard wages. Irate, the manager comes to you, asking whether he can discipline the employees. Can he?

Answer:
No, the manager cannot discipline these employees. By the nature of their complaints, these workers have become economic strikers engaged in protected concerted activity under the National Labor Relations Act. Even though they are non-union workers, they are protected by the NLRA since they are acting together to protest terms and conditions of employment.

What can the manager do?
Present no-work option to the strikers. After consultation with HR, the manager should inform the employees that continuing their work stoppage will result in the following:

• the employees will be categorized as economic strikers and placed on inactive status;
• non-striking employees will be hired to replace them;
• the strikers will be eligible to apply for any openings in the future should one occur;
  any prospective employers that call for a reference will be told that the employees are employed by the company and have been placed on inactive status due to a protected job action;
• and the employees will be asked to leave the building.

Upon being advised of the company’s rights to take such action, the employees will probably stay and get back to work.

Hire replacements, if necessary.
Should the employees choose to continue to strike, the manager may hire replacements and the strikers will have no right to immediate reinstatement. However, if the strikers make an unconditional offer to return to work before they are replaced, the manager must reinstate them. In order to avoid an unfair labor charge by the NLRB, it is also important that the manager carefully word communications to the economic strikers when hiring replacements. The manager should not use any language that implies the strikers are being discharged or that their rights are not being protected.

Do not ignore the problem.
Even if the strikers return to work, the manager should not ignore what has happened. The employees have communicated their dissatisfaction with their salary and have indicated that the company is not paying competitive wages. Such discontent may eventually result in employee turnover and/or union organizing—both of which can lead to many problems for the company. When employees band together and make demands for improved working conditions or higher pay or benefits, managers should be trained to respond to the problem and to recite actions the company has done to resolve workplace issues.

Cite: National Labor Relations Act, Section 7; NLRB v. Mackay Radio & Telegraph Co. (SCt 1938) 1 LC 17,034, 304 US 333.

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