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Refusal to Work Can Be Protected Concerted Activity

    Client Alerts
  • July 15, 2019

The National Labor Relations Act guarantees employees the right to engage in protected concerted activity, meaning two or more employees objecting to terms and conditions of employment. Most recent concerted activity cases have involved employee complaints or social media postings criticizing the employer and its management. However, a new decision from the Eighth Circuit Court of Appeals shows that concerted activity rights can extend to refusal to work based on safety concerns.

In St. Paul Park Refining Co. v. NLRB, a refinery employee and his co-worker raised concerns with an engineer over the safety of a new procedure used to clean lines. When the employee was instructed to proceed with the procedure, he was sent home after refusing to perform the task due to safety concerns. After he received a suspension and bonus cut, the employee filed an unfair labor practice charge with the NLRB.

The Eighth Circuit affirmed the NLRB’s conclusion that the employee had engaged in protected concerted activity. The refusal to conduct the new procedure was directly related to the safety issues raised by the employee and his co-worker. The employee’s arguments with his supervisors did not constitute insubordination that would otherwise justify the employer’s actions.

Had the employer taken more deliberate steps to consider and address the employee’s safety objections, it might have been able to justify its actions. In this case, however, the court concluded that the employer made inconsistent statements before the NLRB, and that it had demonstrated animus toward the employee based on his union affiliation. Employers faced with a refusal to work based on safety concerns expressed by multiple employees need to remember that such action may be protected under federal labor law and cannot be ignored.