Can employees engage in a concerted stretching exercise during work hours? The NLRB recently said yes.
The NLRA allows employees to engage in demonstrations to support their union, including demonstrations in support of contract proposals. However, the law does not protect employees from engaging in work slowdowns or other refusals to perform work. Strikes are protected, but they generally are an “all or nothing” proposition. The general rule is that employees must completely stop work and leave the premises to enjoy the protections of the NLRA for strike activity. Employees must normally show this support for their union in nonworking areas of the workplace during nonworking time.
In Consolidated Communications, a group of employees stood up from their workstations at an appointed time and engaged in stretching exercises in unison. But, they did so during working time and in working areas. So, how did the Board find that this action was protected?
The majority of the board panel viewed the action as protected because they found that the employees did not refuse to perform work or engage in a “slowdown.” The majority noted that there was no rule against stretching, that employees had normally stretched from time-to-time at their workstations, and that the stretching activity did not result in work not being performed. Seeing no refusal to work, the Board majority concluded that the action remained protected even if it occurred during working time in working areas.
In dissent, Member Emanuel viewed the matter differently. By participating in the stretching action during work time, the employees necessarily engaged in a refusal to work. Even if the time away from work was minimal, it had to result in some lost work time. As such, he viewed the action as being unprotected and thought that the employer could lawfully discipline the employees.
Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.