The NLRB Slaps Employers…Again

by Steve Bogue

Bogue, A. Stevenson
(402) 341-3070

Can an employer discipline an employee who secretly tape-records a meeting, or fire non-union employees who have walked off the job in the middle of a time-sensitive project? In the context of two separate recent decisions, the NLRB answered “no.”

Tape Recording

In Hawaii Tribune-Herald, an employee was called in for an investigative interview. Since he was a union member, the law allowed him to have a union representative in the meeting. However, the employer refused his request.

After discussions with his co-workers about the employer’s refusal to allow a representative, the decision was made to secretly record the meeting. The National Labor Relations Board (“NLRB”) concluded that the employee’s tape recording, which led to his subsequent suspension and discharge, was the culmination of “protected concerted” activities. According to the Board, it was clear that the employer knew about those discussions when it discharged him. The NLRB observed that since the employer had no rule barring such recording and it was not unlawful in the State of Hawaii to do so, there was no showing that the conduct was sufficiently “overboard” to remove it from the protection of the law. It also found that a subsequent rule issued by the employer prohibiting tape-recording of meetings was a violation of the law, since it was issued in response to employees’ lawful protected activity, rather than for a legitimate business purpose .

Employee Walk-out

In Atlantic Scaffolding Company, the employer was brought on to a refinery jobsite to perform scaffolding work during a maintenance turnaround. The refinery imposed a strict deadline upon the employer in order to minimize lost time.

A few days prior to the starting date, the Atlantic employees learned that their employer was converting a rumored raise for work performed to an incentive bonus which could be lost for attendance and safety reasons or for failing to remain employed for the duration of the project. Employees prepared and signed a letter demanding an increase in pay and per diem rates. The letter was presented to their employer. They were asked to return to work but did not do so. They were told to leave the premises, which they did.

The employer then discharged all of those employees because their work stoppage had been extremely disruptive and had caused economic harm. The NLRB found that the reason for the work stoppage, namely a dispute over wages, was clearly concerted, since it involved a group, and protected. It further indicated that the work stoppage could not lose its protected status simply because it had been effective with respect to interfering with the employer’s activities.


The lesson of Atlantic Scaffolding is that an employer may not discharge a group of employees who engage in a work stoppage over matters related to the terms and conditions of their employment. Nor is the effectiveness of that action or the fact that employees have not given an indication of when they would return to work sufficient to cause that activity to lose its protection. Indeed, those two factors are the hallmark of any effective work stoppage.

The bottom line is that employees can engage in concerted protected activity even if they are not acting under the banner of a union. The key is whether employees have engaged in group activity, individual activity on behalf of the group, or individual activity relating to a common business interest of the group. The second inquiry, then, is whether the conduct is so excessive that it loses the protection of the law. In neither of these cases did the NLRB find that the conduct had gone too far.

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