NLRB Advice Memoranda, White Labs Inc., National Labor Relations Board, (Mar 24, 2023)

The Region submitted this case to Advice pursuant to GC Memo 21-04 because it presents the novel issue of whether a one-person strike, purportedly in protest of safety, and unrelated to union organizing, constitutes protected concerted activity. We need not reach that issue because we conclude that the evidence fails to demonstrate that the Charging Party was on strike to protest safety given ​     ​ failure to fully articulate either ​     ​ safety concerns or demands or any other protected reason. In addition, the evidence reflects that the Employer had already resolved several safety violations when it discharged the Charging Party after ​     ​ refused to properly clarify whether ​     ​ had quit or was claiming to be on strike. Accordingly, we conclude that the Employer did not violate Section 8(a)(1) of the Act by discharging the Charging Party and that the charge should be dismissed absent withdrawal.

The Employer operates a facility in Asheville, North Carolina where it makes liquid yeast and fermentation products. On January 12, 2022, the Asheville Fire Department conducted a periodic fire inspection that found four violations, including the need to secure gas cannisters, service and add exit signs, service emergency lighting, and remove combustibles under stairs. Thereafter, on ​     ​, the Charging Party filed an OSHA complaint regarding the Employer's storage of gas cannisters. That complaint was resolved the following week before ​     ​ went on ​     ​ purported strike.

​     ​ 2022, the Employer received multiple unsolicited allegations of racism and unprofessional behavior against Charging Party, specifically – two ​     ​ employees alleged, in writing, that Charging Party treated them differently because they were ​     ​ and made racially disparaging comments about ​     ​ in the workplace. The Charging Party, however, claimed that other employees were harassing ​     ​. The Employer investigated these matters, including conducting an initial interview with Charging Party on ​     ​ The Employer took no action at first, prompting one of the complainants to express further displeasure, but ​     ​ ultimately agreed to being placed on a different shift than Charging Party; yet another witness said ​     ​ did not feel comfortable around Charging Party and wanted to find a new job because of ​     ​.

The Employer asserts that by ​     ​, it spoke to Charging Party in an attempt to resolve these issues; Charging Party, however, claimed that the employees' complaints about ​     ​ were motivated by ​     ​ having reported safety issues. The Employer asked ​     ​ what safety issues ​     ​ was referring to since none had previously been reported. only said that ​     ​ did not feel comfortable around people who did not wear safety glasses and claimed that the Fire Marshal pointed out very dangerous items in the cleanroom. The Employer, however, distributes safety glasses to all employees who are instructed to wear them at appropriate times. And the Fire Marshal's report made no findings of very dangerous items in the cleanroom. Nevertheless, the Employer asserts that the Charging Party told it that ​     ​ did not feel safe at work and that ​     ​ was going on strike and began picketing the following day. Similarly, according to the Charging Party, ​     ​ met with the Employer on ​     ​ for a follow-up meeting to discuss the complaints that other employees had made about ​     ​. During that meeting, the Charging Party stated that the Employer was not enforcing its safety glasses policy and was committing an OSHA violation by having two heating pads plugged into one extension cord and was going on strike. Regardless of which day the meeting occurred, the evidence reflects that on ​     ​ the Charging Party wrote on a whiteboard in an open work area, “I'm striking for better working conditions,” and ​     ​ picketed that day and the following day with a sign that stated, “On strike for safety working conditions.”

After walking out, however, the Charging Party never specifically set forth ​     ​ safety concerns or otherwise told the Employer how ​     ​ wanted those concerns to be resolved, despite the Employer's request that ​     ​ do so. Indeed, it was on ​     ​, while ​     ​ was picketing, that the Employer emailed Charging Party an offer of a paid week off and asked ​     ​ to write down ​     ​ safety concerns and how ​     ​ wanted them addressed. The Charging Party completely ignored this offer. When asked ​     ​ why ignored the offer and failed to list ​     ​ concerns or how ​     ​ wanted them resolved, ​     ​ took the position that ​     ​ was not ready to do so, without identifying ​     ​ reasons. After picketing on ​     ​ and ​     ​ Charging Party by ​     ​ own account continued ​     ​ “strike” from home and ceased picketing.

By ​     ​, given that Charging Party had neither appeared for work nor picketed since ​     ​, the Employer emailed ​     ​, noted ​     ​ absences, and asked ​     ​ to contact it immediately or that it would consider ​     ​ a voluntary quit. Separately, the Employer's HR manager sent a text to Charging Party's personal phone, asking that ​     ​ check ​     ​ email. Charging Party replied later that day with a picture of the message ​     ​ put on the white board, but also stated, “I already gave notice, and y'all have decided to double down on harassment.” ​     ​ reply text also took the Employer to task by asserting that it does not like being responsible for worker safety and food safety and asserting that retaliation for lawful reporting is a crime. Still, the cryptic nature of the message left the Employer reasonably believing that ​     ​ statement “I already gave notice” was a response to its ​     ​ email seeking clarity as to whether ​     ​ had resigned. Thus, the Employer's HR Manager replied on ​     ​ by saying the Employer did not know what harassment or retaliation ​     ​ was referring to, that the investigation into complaints against ​     ​ was ongoing, and that the Employer understood Charging Party's text (I already gave notice) as a resignation effective ​     ​, but to let ​     ​ know by ​     ​ if the Employer was mistaken.

Instead of making a clear reply by ​     ​ that ​     ​ was on strike, the Charging Party on ​     ​ merely emailed a link to the NLRB website page explaining strikes. This does not, in our view, provide a clear answer to the Employer's attempt to clarify ​     ​ status. To the extent ​     ​ meant to convey ​     ​ was on strike, perhaps in a way ​     ​ considered to be clever, ​     ​ nevertheless still had not set forth any requests or demands, whether safety related or otherwise. These circumstances contradict any claim that ​     ​ was on strike. Only after ​     ​ was told, on ​     ​ that, in light of ​     ​ cryptic response, the Employer was treating ​     ​ as having resigned did the Charging Party now say clearly ​     ​ was on strike and raise any safety concerns in writing. Even then ​     ​ broadly referenced “major safety violations” with limited specificity, and without setting forth how ​     ​ wanted the Employer to resolve ​     ​ vague concerns.

In addition, the evidence fails to establish that any safety issues existed as of ​     ​. On the contrary, by that date – even before ​     ​ went on ​     ​ claimed strike — the Employer had already provided additional safety glasses and resolved the gas cannister storage violation. Moreover, despite the Charging Party's assertion that the Fire Marshal had observed the Employer's misuse of extension cords and ​     ​ claim that this was an ongoing issue that had caused electrical fires, the inspection report did not set forth any violation on that matter. Nor is there any evidence that the Charging Party, apart from the resolved gas cannister violation, was even aware of the other violations found by the Fire Marshal. And, in any event, the Employer had resolved those violations by ​     ​ when the fire reinspection took place.

The Board has defined a strike as “the act of quitting by a body of workers for the purpose of coercing their employer to accede to some demand they have made …” American Mfg. Concern, 7 NLRB 753, 759 (1938). And, while a one-employee strike may be protected in certain instances, that does not alter the undeniable conclusion that to be considered a strike, it have the purpose of coercing an employer to accede to a demand. Here, the evidence establishes that the Charging Party had no demands given that ​     ​ never fully articulated ​     ​ safety concerns nor informed the Employer how ​     ​ wanted any such concerns resolved. In addition, the evidence reflects that the Employer had already resolved the safety issues found by the Fire Marshal and OSHA by the time Charging Party walked out. Given that Charging Party was under investigation for serious allegations of having made racially-disparaging remarks to co-workers coupled with ​     ​ failure to identify ​     ​ safety concerns or how ​     ​ wanted them or ​     ​ purported strike resolved after ​     ​ walked out, ​     ​ attempt to invoke the protections of Sections 7 and 13 of the Act appear nothing more than a pretext to avoid the Employer's continued efforts to investigate and resolve the serious complaints made against ​     ​. Accordingly, we conclude, notwithstanding the Charging Party's oral and written claims, that the evidence is insufficient to establish that ​     ​ was on strike at all.

Nor would we conclude that the Employer acted in retaliation for Charging Party's earlier attempts to invite co-workers to join ​     ​ on ​     ​ claimed strike. Even assuming those acts were concerted, the Employer took no adverse action at that time; rather it showed significant flexibility towards Charging Party, offering ​     ​ a week off with pay so that ​     ​ could list ​     ​ concerns and how ​     ​ would like them addressed, after which it extended its own deadline for clarification of ​     ​ status only to be met with a link to the NLRB website in response. The evidence does not support that the Employer harbored animus for Charging Party's invitation to others to join ​     ​ claimed protest.

Given our conclusion that Charging Party was not on strike, the charge should be dismissed absent withdrawal. This email closes the case in Advice as of today. Please feel free to contact us with any questions or concerns.

Thanks.

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Advice

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