Jottings By An Employer's Lawyer

Sunday, August 03, 2003

Walking Off to Protest A Supervisor In A Non-Union Shop - 7th Circuit Style

Highlighted by some intra-court sparring between Judges Posner and Easterbrook, two of the court's brightest intellects, the majority opinion written by Judge Posner enforces a Board order that a non-union employer violated the NLRA when he discharged six employees who walked off the job to protest the incompetence of a supervisor. Trompler, Inc. v. NLRB (7th Cir. 8/1/03). Reading Judge Posner's opinion, with a gentle chide at his colleague's concurrence, and that opinion by Judge Easterbrook gives a good review of the complexity of issues as to what conduct is protected and what is not when it comes to protesting a supervisor's actions.

And in the middle of it all, Judge Posner as he often does, has a great money quote, this time about the model of labor relations:
The National Labor Relations Act models labor relations as tests of strength between workers and management. Workers withhold or threaten to withhold their labor in order to impose costs on management that will induce management to improve the workers' 'terms or conditions of employment,' and employers if they don't want to knuckle under to the workers' demands can try to impose costs on the workers by locking them out, laying them off, and hiring permanent replacements. [cite omitted] This 'combat' model of labor relations does not sort well with a requirement that the combatants act reasonably.

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