Summary
The Eleventh Circuit enforced an NLRB order finding that Security Walls violated the NLRA by discharging and disciplining an employee for protected concerted activity. The court held that an employee's complaints about wage underpayment, overtime inequities, and potential schedule changes were protected under §7 of the NLRA even though a union and collective bargaining agreement existed, because the employee did not attempt to bypass the union to bargain directly or undermine the union's exclusive representative status. Distinguishing *Emporium Capwell Co. v. Western Addition Community Organization*, the court ruled that employees are not required to channel grievances through the union first, and that concerted activity retains protection unless it is inconsistent with the collective bargaining agreement or impairs the union's bargaining authority.
Topics
Practice areas
Questions Presented
- Whether an employee's concerted activity regarding wages and working conditions loses protection under the NLRA when the employee bypasses the union's grievance process and raises concerns directly to the employer, without attempting to bargain with the employer in derogation of the union's exclusive bargaining authority.
Holdings
- Kelley's activities were protected concerted activity under Section 7 of the NLRA because they were not inconsistent with the collective bargaining agreement, did not undermine the union's role as exclusive bargaining representative, and were not an attempt to bargain directly with the employer on matters reserved for the union.
Key quotations
“Section 7 of the NLRA 'affirmatively guarantees employees the most basic rights of industrial self-determination': 'the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.'” (at 13-14)
“Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.” (at 15)
“It is only when employees’ activities undermine the union’s objectives or the union’s position as the exclusive bargaining authority that activities lose NLRA protection.” (at 20)
Factual background
Security Walls hired Randall Kelley as a security officer. Kelley engaged in concerted activity by complaining about underpayment of wages, unfair overtime assignment, a proposed schedule change, and supervisory misconduct. He reported these concerns to management. In response, Security Walls threatened, suspended, and eventually discharged Kelley. The NLRB found these actions violated the NLRA, and Security Walls sought review.
Procedural history
The NLRB found that Security Walls violated § 8(a)(1) of the NLRA by threatening, suspending, restricting, and discharging employee Randall Kelley for engaging in protected concerted activity. The Board ordered reinstatement and backpay. Security Walls petitioned for review, and the Board cross-petitioned for enforcement.