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Employment Development Department
Employment Development Department

Trade Dispute TD 120

Nonunion employees - Initial Work Stoppage Action

A. Honoring of Picket Lines by Nonunion Employees

An employer involved in a trade dispute may have both union and nonunion employees in its workforce. For example, the production workers are members of a union, while the clerical workers are not represented by a union. If the union members take strike action, the eligibility of the nonunion employees depends on whether or not they choose to voluntarily leave their work in support of the union members. If the nonunion employee elects not to report to work due to the trade dispute, the employee is considered to have adopted the trade dispute as his/her own and is subject to disqualification under Section 1262.

On the other hand, if the nonunion employee is laid off due to lack of work caused by the trade dispute, the employee is not subject to disqualification under Section 1262. In the 1953 Chrysler court case, the production workers, members of the union directly involved, took strike action. Nonunion office workers were laid off at a later date due to lack of production. The court held the nonunion employees were eligible since there was no voluntary action to leave on their part.

B. No Union Trade Disputes

Briefly stated, a trade dispute is defined as a controversy over conditions of work between a union or group of workers, acting in concert, and an employer. There is no requirement that a union must be involved in the trade dispute to meet the definition of a trade dispute.

In PB 399, 20 employees, who were not represented by a union, expressed dissatisfaction with overtime and unsafe working conditions to their foreman. Subsequently, the president reprimanded the employees for poor work. On that same day, a Friday, the employees left work without advance notice. No picket line was established. On Monday morning, the striking employees returned to the employer’s premises. At 9:30 a.m., the employees asked to see the president. At this point, the employees were terminated

The employer contended there was no true trade dispute because there was no uniformity of thought amongst the employees as to their reason for leaving work; grievances were not communicated to the employer; and it was essential to examine the merits of the walkout.

In holding there was a trade dispute within the meaning of Section 1262, the Board cited PB 24:

"The term "trade dispute" is a broad one and may be properly applied to any controversy which is reasonably related to employment and collective bargaining."

The Board cited numerous NLRB cases which have addressed the question of when employees were considered to be engaged in a trade dispute, including the following:

". . .employees have the right to engage in concerted activities for their mutual aid or protection even though no union activity be involved or collective bargaining contemplated (NLRB v. Phoenix Mutual Life Insurance Co.)"

The Board added:

"Spontaneous work stoppages by employees to protest grievances concerning working conditions are protected concerted activities within the scope of the National Labor Relations Act (Elam v. N.L.R.B. (1968), 395 F. 2d 611, 67 LRRM 2625; N.L.R.B. v. Phaostron Inst. & Elect. Co. (1965), 344 F. 2d 855, 59 LRRM 2175). In N.L.R.B. v. Washington Aluminum Co. (1962), 370 US 9, 50 LRRM 2235) the Supreme Court of the United States held that the language of Section 7 of the Act (29 USC Section 157) is broad enough to protect concerted activities whether they take place before, after, or at the same time a demand is made. The U.S. Court of Appeals, Ninth Circuit, in Electrokmec Design Co. v. N.L.R.B. (1969), 70 LRRM 3257) held that employees who fail to present a specific demand at the time they walk out does not have to be the most reasonable choice of action available in order for the employees to be protected under Section 7 of the Act."

The Board, in PB 399, then concluded that the claimant was discharged due to his participation in a trade dispute and that such action did not constitute misconduct under Section 1256.