Rights to refuse dangerous work and the NLRA

As noted previously, employees, even those without unions, also have protection under the National Labor Relations Act when they engage in protected “concerted activity” within the meaning of Section 7 of the NLRA, 29 U.S.C. § 157.  Thus, unorganized workers who band together to protest working conditions may challenge any retaliatory discipline by filing charges under Section 8(a)(1) and (3) of that Act, 29 U.S.C. §158(a)(1) and (3). 

This protection will extend to a refusal to do work as well as the raising of safety complaints.  In NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), seven workers went home because of extreme cold in their workplace at which aluminum products were fabricated:

January 5, 1959, was an extraordinarily cold day for Baltimore, with unusually high winds and a low temperature of 11 degrees followed by a high of 22. When the employees on the day shift came to work that morning, they found the shop bitterly cold, due not only to the unusually harsh weather, but also to the fact that the large oil furnace had broken down the night before and had not as yet been put back into operation. As the workers gathered in the shop just before the starting hour of 7:30, one of them, a Mr. Caron, went into the office of Mr. Jarvis, the foreman, hoping to warm himself but, instead, found the foreman's quarters as uncomfortable as the rest of the shop. As Caron and Jarvis sat in Jarvis' office discussing how bitingly cold the building was, some of the other machinists walked by the office window 'huddled' together in a fashion that caused Jarvis to exclaim that '(i)f those fellows had any guts at all, they would go home.' When the starting buzzer sounded a few moments later, Caron walked back to his working place in the shop and found all the other machinists 'huddled there, shaking a little, cold.' Caron then said to these workers, '* * * Dave (Jarvis) told me if we had any guts, we would go home. * * * I am going home, it is too damned cold to work.' Caron asked the other workers what they were going to do and, after some discussion among themselves, they decided to leave with him. One of these workers, testifying before the Board, summarized their entire discussion this way: 'And we had all got together and thought it would be a good idea to go home; maybe we could get some heat brought into the plant that way.' As they started to leave, Jarvis approached and persuaded one of the workers to remain at the job. But Caron and the other six workers on the day shift left practically in a body in a matter of minutes after the 7:30 buzzer.

When the company's general foreman arrived between 7:45 and 8 that morning, Jarvis promptly informed him that all but one of the employees had left because the shop was too cold. The company's president came in at approximately 8:20 a.m. and, upon learning of the walkout, immediately said to the foreman, '* * * if they have all gone, we are going to terminate them.' After discussion 'at great length' between the general foreman and the company president as to what might be the effect of the walkout on employee discipline and plant production, the president formalized his discharge of the workers who had walked out by giving orders at 9 a.m. that the affected workers should be notified about their discharge immediately, either by telephone, telegram or personally. This was done.

On these facts the Board found that the conduct of the workers was a concerted activity to protest the company's failure to supply adequate heat in its machine shop, that such conduct is protected under the provision of s 7 of the National Labor Relations Act which guarantees that 'Employees shall have the right * * * to engage in * * * concerted activities for the purpose of collective bargaining or other mutual aid or protection,' and that the discharge of these workers by the company amounted to an unfair labor practice under § 8(a)(1) of the Act, which forbids employers 'to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.' Acting under the authority of § 10(c) of the Act, which provides that when an employer has been guilty of an unfair labor practice the Board can 'take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act,'  the Board then ordered the company to reinstate the discharged workers to their previous positions and to make them whole for losses resulting from what the Board found to have been the unlawful termination of their employment. * * *

The seven employees here were part of a small group of employees who were wholly unorganized. They had no bargaining representative and, in fact, no representative of any kind to present their grievances to their employer. Under these circumstances, they had to speak for themselves as best they could. As pointed out above, prior to the day they left the shop, several of them had repeatedly complained to company officials about the cold working conditions in the shop. These had been more or less spontaneous individual pleas, unsupported by any threat of concerted protest, to which the company apparently gave little consideration and which it now says the Board should have treated as nothing more than 'the same sort of gripes as the gripes made about the heat in the summertime.' The bitter cold of January 5, however, finally brought these workers' individual complaints into concert so that some more effective action could be considered. Having no bargaining representative and no established procedure by which they could take full advantage of their unanimity of opinion in negotiations with the company, the men took the most direct course to let the company know that they wanted a warmer place in which to work. So, after talking among themselves, they walked out together in the hope that this action might spotlight their complaint and bring about some improvement in what they considered to be the 'miserable' conditions of their employment. This we think was enough to justify the Board's holding that they were not required to make any more specific demand than they did to be entitled to the protection of § 7.