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Employment Blog

Federal Court Upholds NLRB’s Decision that Picker Who Bickered is Protected Under the National Labor Relations Act

Authored by Ruder Ware Attorneys
Posted on March 14, 2016
Filed under Employment

Earlier this month, the federal U.S. Court of Appeals for the Seventh Circuit, which issues opinions that are controlling with respect to Wisconsin employers, determined that an employer’s decision to fire one of its workers violated the National Labor Relations Act.  The employer at issue in the case is a staffing company that provided contingent workers to a book supply company.   Here, the complainant’s co-worker was sent home because he couldn’t keep up with the flow of work, and when management asked him to pick up his pace, the complainant’s co-worker told management he wouldn’t work any faster at his hourly rate of $8.25 per hour.  The staffing employer sent complainant’s co-worker home as a result—nothing to see here, yet.   This decision angered the complainant—which ultimately culminated in the termination of her employment, as explained below.    

According to the Court, the staffing employer terminated the complainant, who served as a “picker” for the client, book-supply company—a worker who works on a production line, selecting books to fill orders, placing the books in boxes and sending them down the line—because, according to the staffing employer, she disrupted production when she: (1) protested what she perceived to be management’s unfair treatment of her co-worker; and (2) “[got] the ladies in line worked up.”  The decision is Staffing Network Holdings, LLC v. National Labor Relations Board, found here: http://cases.justia.com/federal/appellate-courts/ca7/15-1354/15-1354-2016-03-02.pdf?ts=1456956053  

Significantly for Wisconsin employers—even non-union employers like the staffing company in this case—the Court upheld the NLRB’s determination that the picker’s act of protesting in response to what she believed was unfair treatment of her co-worker, constituted protected, concerted activity.   The Court also concluded that “[getting] the ladies on the line worked up,” is an example of a brief, on-the-job work stoppage, which is a form of economic pressure entitled to protection under the Act.   In other words, because this conduct was protected activity under the NLRA, the employer’s admission that it fired complainant for these reasons was a clear violation of the National Labor Relations Act.  The staffing company was required to reinstate complainant and make her whole in terms of lost wages caused by the illegal termination of employment.

Employers commonly characterize the type of conduct that precipitated the termination decision in this case as insubordination.  For this reason, the Staffing Network Holdings, LLC case teaches that employers must include protections under the NLRA  in their pre-termination checklist.  Employees and their lawyers are increasingly aware of the protections under the NLRA—non-union employers must follow suit.