Employees that Stopped Working, Gathered in Cafeteria, and Protested Discipline of Co-Worker for Over One Hour, Lawful

A hotel suspended a union employee pending investigation of an alleged theft from a hotel guest. In response to the suspension, employees gathered in a staff cafeteria demanding to discuss the employee’s suspension. The housekeeping director began suspending the employees about an hour after they had gathered. He suspended 77 workers for five days and refused their requests to return to work.

The judge found that the hotel had violated the National Labor Relations Act, and the National Labor Relations Board affirmed his decision. The Board analyzed the case under Quietflex Manufacturing Co., which required it to consider:

(1) the reason the employees have stopped working; (2) whether the work stoppage was peaceful; (3) whether the work stoppage interfered with production, or deprived the employer access to its property; (4) whether employees had adequate opportunity to present grievances to management; (5) whether employees were given any warning that they must leave the premises or face discharge; (6) the duration of the work stoppage; (7) whether employees were represented or had an established grievance procedure; (8) whether employees remained on the premises beyond their shift; (9) whether the employees attempted to seize the employer’s property; and (10) the reason for which the employees were ultimately discharged.

The U.S. Court of Appeals for the District of Columbia (D.C. Circuit) refused to enforce the Board’s order and remanded the case back to the Board. The Board issued a supplemental decision in which it clarified that its focus was not on whether the striking employees affected production but whether they “interfere with production or the provision of services by preventing other employees who are working from performing their duties.”

The D.C. Circuit upheld this supplemental decision finding that the 77 employees did not prevent other employees from working. This decision requires companies to fulfill a high burden of not only showing that the employee interfered with production, but also showing that the employee prevented other employees from performing their duties.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.