The memorandum illustrates that an employee who leaves work in what appears to be a purely personal protest may have federal labor law protection if the worker is aiding or supporting a labor union.
RoHoHo Inc., a franchisee that operates Papa John’s restaurants in South Carolina, argued it lawfully discharged the employee, who failed to report to work after management denied a request for time off. Company policy generally required employees to give seven days’ notice of such requests, and the employee failed to comply with that requirement.
Associate General Counsel Jayme L. Sophir wrote that the employee’s participation in Fight for $15 activities was protected by the National Labor Relations Act because the worker was supporting the Southern Workers Organizing Committee, a labor union.
SWOC notified Papa John’s the employee would miss work because of the labor protests and made it clear the union’s objective was to organize employees as well as to protest wages in the fast-food industry, Sophir said.
The NLRA protects the right of employees to engage in “concerted” activity for their mutual aid or protection. Concerted activity usually requires the participation of two or more employees, and the South Carolina restaurant company argued the employee’s absence was an individual action, not a concerted one.
The Division of Advice, which provides guidance and instructions to the agency’s regional directors in unfair labor practice cases, disagreed. The NLRB has found “a single employee’s apparent solo strike to be protected, concerted activity where the employee strikes to assist a labor union in furtherance of the union’s organizing efforts, particularly when it is done with the union’s knowledge and agreement,” Sophir said.
Concluding that RoHoHo unlawfully fired the employee for an absence that was a strike supporting SWOC and its organizing efforts, the Division of Advice instructed an NLRB regional director to issue an unfair labor practice complaint against the employer unless the case was settled.
The NLRB’s docket shows the dispute was settled earlier this year and the case was closed on May 2. Division of Advice memorandums are typically not disclosed until after an unfair labor practice case has been closed. The name and gender of the employee were withheld from the memorandum, which was issued in September 2017.
The case is RoHoHo, Inc., NLRB Div. of Advice, Case 10-CA-192458, memorandum released 6/14/18.
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