One such law that recently was considered in a family and medical leave context was the National Labor Relations Act (NLRA). A decision rendered earlier this year by the National Labor Relations Board (NLRB), the federal agency assigned jurisdiction over disputes between labor and management in most private-sector workplaces by the NLRA, illustrates how the act may apply to FMLA disputes. Many workers and employers are acquainted with the NLRB because of its role in supervising elections under which labor organizations may gain representation rights in a particular workplace. However, the agency also expends a great deal of effort investigating allegations of "unfair labor practices" that are alleged to have been committed by either employers or unions.
The NLRA specifies a number of categories of conduct that can be reviewed as part of unfair labor practice proceedings. These include allegations that employers have restrained or coerced employees in exercising rights guaranteed by the federal labor relations laws, and allegations that employers have discriminated against individuals because they have engaged in such conduct.
Employee rights are described in Section 7 of the NLRA, which provides generally that: workers have the right to self-organization; they may form, join or assist labor unions; and they may engage in collective bargaining over wages, hours and working conditions through elected representatives. In addition to these specified rights, Section 7 contains another broad set of protections that can come into play in a much larger group of workplaces, including those in which unions represent groups of workers, as well as those that are entirely non-union.
The NLRA provides that employees lawfully may engage in "concerted activities" for the purposes of "collective bargaining or other mutual aid or protection," a very broad category of potentially covered conduct known as "protected, concerted activity."
In concept, the element of "concerted-ness" would appear to require that the activity involve two or more individuals´ conduct, as one employee seemingly cannot be engaged in concerted action individually. However, in cases that have been the subject of litigation and sometimes-changing legal standards, the actions of individual employees often have been found to constitute activity protected under Section 7 of the NLRA.
In many instances, these issues arise when an individual is seeking to vindicate individually a right won through collective bargaining, such as when they seek to protest under or enforce a provision of a labor agreement. In other cases, however, the issues occur when an employee raises issues - through words or conduct - that vindicate the rights or interests of co-workers as well as the individual actor.
A Recent NLRB Ruling
A recent decision by the NLRB illustrates precisely how this issue may play out with respect to the assertion of family and medical leave rights.
In Phillips Petroleum Co., 339 NLRB No. 111 (2003), the employer was found to have violated the NLRA with respect to a refinery employee who had been inquiring about and attempting to use family leave during his wife´s hospitalization during pregnancy.
Brandon Ingram was employed at an oil refinery in Washington state in December 2001, a site at which employees were represented by PACE (the Paper, Allied-Industrial, Chemical and Energy Workers International Union). While in his probationary period, Ingram was linked to three incidents that were implicated in his subsequent discharge.
First, Ingram deleted two e-mails from his computer without reading them, although he attributed the action to computer problems, and said he read them on another employee´s computer. Second, the superintendent of the operation attributed to Ingram a suggestion at a training session that employees could avoid call-in for overtime by stating they had been drinking; however, that manager was not present when the remark was made, and the trainer never attributed the remark to Ingram. Finally, Ingram asked a question at a safety training session indicating his (inaccurate) belief that employees were not required to wear hard hats on the loading dock.
At the time these incidents occurred, Ingram received no discipline, and he was consistently rated as a good employee and a hard worker. After three months on the job, Ingram´s wife experienced complications with her pregnancy, and he inquired about time off under the FMLA. He was told that because he had not worked for the company for a year, he was not eligible for FMLA leave.
A co-worker then mentioned the possibility that he might be entitled to leave under the Washington state Family Care Sick Leave Act, a measure that allows employees to use employer-provided sick leave to care for family members. Ingram discussed the topic with co-workers, and educated them about their rights under the state law.
Inquiring about his eligibility for the state-mandated leave with his supervisor, he was told again that he was ineligible, and would have to use vacation time if he wanted to attend to his wife. Ingram then began discussing the subject of family leave with a co-worker who occupied a leadership position with the union. Ingram learned that other employees previously had experienced problems in getting time off to care for sick family members, was encouraged to continue pursuing the issue and was advised that the union was looking for a test case to file in court.
After his wife experienced further problems and was hospitalized, Ingram sought sick leave, was given two days off for that purpose, and had a request to stay off work for an additional two days granted. When he returned to work, however, he learned that he had been charged with four vacation days for that absence, which he subsequently protested in an e-mail to management representatives, while sending a copy to a union official.
The e-mail triggered negative reactions from the employer, and several weeks later (and after Ingram had filed a complaint with the U.S. Department of Labor), he was discharged. The company cited job-probation-period incidents, as well as the frustrations Ingram had expressed with the company´s time-off policies, as reasons for the employee´s termination.
The NLRB´s Reasoning
The NLRB concluded that Ingram´s pursuit of family medical leave rights constituted protected concerted activity under the federal labor relations law in these circumstances. It also concluded that his protected conduct was a motivating factor in the company´s decision to terminate him, and that the company did not prove that it would have terminated him in the absence of the protected conduct.
In so ruling, the NLRB noted that Ingram´s individual behavior in enlisting the support of fellow employees for their "mutual aid and protection" was "concerted activity" to the same extent as ordinary group efforts because it was initiated with the object of inducing or implicating group action. His actions were an effort to remedy a perceived inadequacy in working conditions - the inability of employees to use sick leave for family illnesses and emergencies. While Ingram´s conduct was focused on his own circumstances, the record showed that these actions embraced the larger goal of securing the same benefit for all of Ingram´s co-workers.
Ingram´s conduct was a motivating factor in the discharge decision, according to the NLRB, because Ingram´s leave-related efforts were shown to have been the subject of critical communications among the company´s officials. The NLRB noted in particular that one manager observed that, job performance aside, the company did not need a "political activist" in the workplace, indicating an awareness that Ingram was acting on behalf of his co-workers or attempting to solicit their support.
Finally, these issues arose within the context of the company´s prior consideration of its leave policy, including its denial of a grievance brought by the union regarding these rules. These and other factors led the NLRB to reject the employer´s proffered justification that the termination resulted from concerns about Ingram´s ability to follow safety rules, including the issues that arose (but were not punished contemporaneously) during his probationary period.
The company was ordered to offer reinstatement to Ingram, and to make him whole for any loss of earnings and benefits during the period following his termination.
Conclusion
Remedies available to employees under the NLRA for violations of that act comprise only some of the options - beyond the FMLA enforcement mechanisms and those found in comparable state leave laws - that may play a critical role in employee leave disputes. These complications provide good justification for employers to seek the guidance of experienced labor and employment counsel prior to taking adverse actions on challenging leave issues, even when the details of the FMLA, including its protections and requirements, are well known to human resources personnel.
This article is excerpted from the Family and Medical Leave Handbook published by Thompson Publishing Group. More information on the Handbook is available at http://www.thompson.com/libraries/wagehour/time/index.html