Sixth Circuit: Employer’s Forgiveness of Wildcat Strike Must Be Unequivocal Before Firing Striking Employees Violates NLRA.

On Friday, the Sixth Circuit affirmed a decision by the NLRB upholding the termination of wildcat strikers who claimed that their termination violated the NLRA because the employer had condoned – or forgiven – their unlawful strike before they were terminated. Exum v. NLRB, No. 07-2070. An ALJ had previously agreed with the employees, but the NLRB and the Sixth Circuit found that the statements relied upon by the employees were too equivocal – or ambiguous – to constitute ratification of their illegal strike. It is also clear from the opinion that the Court found the employees’ version of events to be too incredible to believe over the contradictory testimony of the employer’s president. Otherwise, when an employer condones – or forgives – unprotected misconduct by an employee, it can violate the NLRA to later terminate the employee for protesting terms and conditions of employment.

Most of the facts in the case were undisputed. The employer operated a slaughter house and had a bargaining agreement with the union for the last forty years. The CBA guaranteed the employees a 35-hour workweek and prohibited any strikes or work stoppages prior to attempts to resolve any dispute. However, during the 2001 economic slowdown, the employer asked the union to agree to shorten the workweek to 15 hours/week instead of layoffs because at least 21 employees were needed to properly process the meat. Although the union agreed to the reduction in work hours, it apparently failed to so inform the employees, who then walked out – with freshly slaughtered cows on the factory floor -- without first trying to resolve the problem as required by the CBA.

When the striking employees demanded to speak with the president, he agreed to meet with them individually, but not as a mob. He instructed them to return to work within fifteen minutes or to leave the premises. He also explained that if they chose to leave the premises at that point, he would consider them to have voluntarily resigned their employment. When many of them refused to return to work, he asked them to leave – which they did. When they asked if they were being fired, they claimed that he said no and pleaded with them to return to work. As one employee put away his work clothes, he had a brief conversation with the president where he indicated that the employee should take his pen with him because he would need it to fill out job applications. The union representative again arrived at the plan, met briefly with the president, but did not explain anything to the employees – other than to instruct the departing employees to meet with him at the union hall the next afternoon. The union representative denied that any of the employees told him that they intended to return to work the next day. Some employees claim the president told them to put their things away and return the next day.

When some of the striking employees returned to the plant the following morning, they did not attempt to enter the plant, speak with the guard or return to work. Rather, they remained in their cars outside the plant gates and claimed that they were somehow prevented from entering the plant. When the striking employees picked up their final paycheck a few days later, they were told to clean out their lockers and return any company property in their possession. They also received letters from the employer confirming their resignations, and none of them protested or filed a grievance under the CBA.

When strike misconduct has been “clearly shown, condonation may not be lightly presumed from mere silence or equivocal statements, but must clearly appear from some positive act by an employer indicating forgiveness and an intention of treating the guilty employees as if their misconduct had not occurred. . . . The case law in this circuit makes it clear that the employer’s action expressing forgiveness cannot be vague or equivocal.”

In this case, the NLRB “first noted that there were two separate work stoppages in this case. The first was when the employees en masse walked away from their jobs and stood outside the plant. The second was when the employees were given an opportunity to return to work with no repercussions. While neither was a protected strike, the first was clearly forgiven by Employer if the employees returned to their stations, and all employees who did so remained employed. Petitioner and the other employees who continued the strike and chose not to return to their stations initiated a second work stoppage that was not condoned, and for which they were terminated.”

“There is substantial evidence in the record to support the Board’s finding that Employer did not condone the employees’ strike. The employees’ behavior does not support a claim of condonation. Not only did the employees not tell Canada on the day of the strike that they intended to return to work the next day, but they also did not discuss with Freudenberg the determination on their separation notices that they had voluntarily quit and abandoned their jobs. Furthermore, if Freudenberg told the employees to return to work the next day, such a comment when taken in the context of his other statements was entirely ambiguous. Because the employer’s actions in forgiving an unprotected strike must be unequivocal, and a petitioner must demonstrate by clear and convincing evidence that such forgiveness occurred, the court finds that Petitioner has failed to satisfy his burden.”

Insomniacs can read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0395p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.