NLRA protects nonunionized workers, 3rd Circuit ruling reminds employers

A New Jersey manufacturer of art supplies violated federal labor law when a manager allegedly told workers there would “be a problem” if they discussed concerns about race-based mistreatment among themselves, the 3rd U.S. Circuit Court of Appeals held Feb. 21 in Colart Americas Inc. v. National Labor Relations Board.

After a staffing firm assigned an employee to work at the manufacturer’s distribution center, he complained to the center’s manager about racism against Black workers at the facility and said he planned to report it, according to findings by the National Labor Relations Board. Shortly thereafter, the manager told the workers that if they had complaints, they should follow the chain of command and warned them not to voice complaints to each other, the NLRB found. That day, the manufacturer dismissed the staffing firm worker.

The NLRB’s general counsel charged the manufacturer with violating the National Labor Relations Act by interfering with employees’ right to engage in protected concerted activity when it threatened them with unspecified reprisals if they discussed complaints among themselves. Following a hearing, the NLRB found the manufacturer was a joint employer with the staffing firm and upheld the charges, which also included discharging the staffing firm worker for bringing group complaints and threatening to file charges. The 3rd Circuit upheld the ruling.

The case highlights a common misunderstanding about the NLRA: Employees are still protected even if there is no union or union-related activity involved. 

In particular, the NLRA allows employees to engage in “concerted activity,” which is when “two or more employees take action for their mutual aid or protection regarding the terms and conditions of employment,” according to NLRB guidance. A single employee may also engage in protected concerted activity if they bring group complaints to the employer’s attention, the guidance says.

Here, the NLRB could find the staffing firm worker’s complaints were protected concerted activity because: He complained to the manager and another supervisor about alleged racism against multiple Black employees; other workers made similar complaints; he discussed the complaints with his fellow workers; and the manager treated their concerns as a group complaint, the 3rd Circuit said.

The allegations hint at another familiar mistake — failing to properly respond to internal complaints of employment discrimination. The U.S. Equal Employment Opportunity Commission has published guidance on what employers should do instead, starting with a prompt, thorough and impartial investigation into the complaint. If evidence of discrimination is found, employers should ensure it stops immediately, correct any effects and prevent it from happening again, EEOC recommended.

Additionally, similar to the federal employment laws the EEOC enforces, the NLRA prohibits employers from retaliating against employees because they engage in protected activity. In this case, there was substantial evidence the manufacturer retaliated against the staffing firm work when it discharged him because of this protected activity, the 3rd Circuit said.

Specifically, at least two decisionmakers knew about his protected activity, and the decision to discharge him was close in time to that activity, the court explained. It also agreed with the NLRB that the manufacturer’s stated reasons for dismissing him — performance problems — were either implausible because they were never documented or false because they were contradicted by the manufacturer’s own records, the appeals panel added.

As the 3rd Circuit weighed in on the NLRB’s ruling, corporate powerhouses have been challenging the agency’s very existence. In January, the day after the Board charged Elon Musk-led SpaceX with violating the NLRA by firing employees who openly voiced workplace concerns, SpaceX shot back with a lawsuit accusing the agency’s structure of being unconstitutional and a violation of separation of powers.

Amazon and Trader Joe’s have made similar arguments in other lawsuits against the NLRB, according to a Feb. 22 report from The Register.