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Worker “Disloyalty” Leads to Discharge; Employer Disloyalty Is Good for Business

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The National Labor Relations Act protects the right of employees to join together to change working conditions. The law, as written by Congress, has no exception to this protection. But that doesn’t mean the courts couldn’t create exceptions big enough to drive a fleet of trucks through.

In fact, the blanket protection Congress put into the NLRA has been eaten full of holes by judicial moths. It’s hard to decide which of the judicial amendments creates the most outrageous exception to the law’s protection, but making employee disloyalty into a cardinal sin certainly deserves an award for chutzpah and judicial overreach.

The basic problem is that the word is so vague, it is easy to manipulate. If asked what employee “disloyalty” is, many people might say “stealing employer property.” Take organizing a union, for example, or employees’ complaints about working conditions. The NLRA actually says that organizing unions and participating in concerted activity to change working conditions are protected. But these are also behaviors that judges have put into the category of disloyalty in some cases.

According to the Supreme Court in the 1953 case of NLRB v. Local 1229, IBEW (Jefferson Standard), disloyal employees lose the protections of the National Labor Relations Act, even though the employees’ actions are precisely what Congress intended to protect. As time has passed, the category called disloyal actions has expanded, making it ever easier for employers to deprive workers of their rights under the law.

The local 1229 case that created the disloyalty “amendment” involved employees in a labor dispute with their employer, a broadcasting company, in the early years of television. The employees picketed their employer in their off-duty time to pressure the employer to agree to the employees’ collective bargaining proposal. The employees also distributed a handbill attacking the quality of the employer’s TV broadcasts. It was this handbill that the court concluded was so disloyal that it removed the protections of the NLRA. The judges said that the handbill’s statements were an improper way to pressure their employer to settle the dispute. As a result, the court said, discharging the employees for distributing this flier was legal.

The disloyalty exception has proved to be slippery and unpredictable in application. In one case, a Coors employee who was fired for coming to work with a “Boycott Coors” bumper sticker on his car was reinstated, but the discharge of another employee who was fired for disloyalty because he participated in a “Boycott Hormel” parade was upheld as lawful. The minute difference between these cases makes it hard for employees to determine what forms of protest are protected, particularly because the boycott is a traditional labor tactic that Congress certainly intended to protect in passing the NLRA.

When a concept like disloyalty is so vague and undefined, it is easy for unconscious bias to influence decisions. If a person’s experience makes it easier to see the employer’s position than that of the workers, the decision will give more weight to the employer’s interest, while appearing to the decision-maker to be unbiased. Many judges have little or no experience as workers, making it easier for them to see and adopt the employer’s perspective.

Vagueness and inconsistency with the statute are not the only problems with the disloyalty exception. The great irony is that employees are expected to be loyal to their employer, but employer loyalty is so rare as to be newsworthy. Employers can fire employees at will and move operations to cheaper locations regardless of the devastation left behind for employees, their families and even entire towns. They can do this even when the government has given them money to stay in town.

Employers can fire long-service employees to replace them with someone who will work for less. Employers can promise benefits like health insurance then reduce or eliminate those benefits just when they are needed most. No one blinks an eye except the workers affected.

Indeed, a few years ago after his mill burned in a fire, Aaron Feuerstein, owner of Malden Mills in Lawrence, Massachusetts, became a folk hero when he promised to rebuild in Massachusetts and continued to pay his employees. The rarity of that sort of loyalty by an employer made national news.

It should not be forgotten that Congress enacted the NLRA with the goal of equalizing bargaining power between employers and employees. The disloyalty amendment not only undermines that goal but it also frustrates the intended protection of the law for workers and makes it more difficult for them to assert their rights. Apparently, the way judges see it, loyalty is a one-way street.

This is the 17th article in the Judicial Amendment Project series on the history of the National Labor Relations Act. The stories in the series, to date, include:

Why the National Labor Relations Act Is a Weak Law Today – and How We Can Restore its Power

Judicial Amendments and the Attack on Worker Rights

Solidarity NOT Forever: How the Supreme Court Kicked Retirees Into the Gutter

Strike and You’re Out: The Supreme Court’s Destruction of the Right to Strike

A Strike Is a Strike and Only a Strike

At an Impasse: Collective Bargaining Under the Judicial Amendments

The Supreme Court Empowers Employers to Lock Out Workers

The Judicial Amendments’ 1-2-3-4 Punch to Collective Bargaining

Extra! Extra! Rich Corp Execs Shut Down the NLRB! Then and Now

The Dues and Don’ts of Union Dues

Union Dues and Don’ts: How Conservative Interest Groups Are Reducing Unions’ Financial Resources

Lechmere: The Employer’s “Right” to Keep Employees Isolated and Uninformed

Judicially Amended “Remedies” Fail to Promote Purposes of NLRA

Turning the NLRA into Groundhog Day, the Movie

Judicially Amended “Remedies” Fail to Promote Purposes of NLRA

What Ifs? The Sad Tale of Darlington Mills

Judges’ “Mitigation of Damages” Doctrine Harms Injured Employees

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