Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, December 30, 2007

4th Modifies Test For Concerted Activity When The Protest Concerns Discharge Of A Supervisors

4thcir Smithfield Packing v. NLRB, ___F. 3d___(4th Cir. Dec. 5, 2007), is a major decision concerning protected employee protests. In 1962, the Supreme Court in Washington Aluminum held that a non-union employee walkout to protest the lack of heat was protected concerted activity under Section 7 and the reasonableness of the employees actions were irrelevant.

With respect to protests over supervisory discharges, some circuits have modified this standard. As the court stated in Smithfield:

In sum, we believe the Board’s interpretation of § 7 in the unique context of employee protest regarding supervisory personnel change  is unreasonable and should not be given deference. Instead, we choose to follow the approach of our sister circuits, that employee protest in response to personnel decisions regarding management is protected under § 7 only where such protest is "in fact . . . a protest over the actual conditions of their employment" and the "means of the protest [are] reasonable." Yesterday’s Children, 115 F.3d at 45.

I see no reason for a different standard when supervisory actions are involved. If the issue effects the employees working conditions and the test for mutual aid and protection is otherwise met, that is all that should be required. There is no need to interject a reasonableness requirement.

Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2007/12/4th-modifies-te.html

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