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Protected Activities
Protected Concerted Activity in Union and Non-Union Workplaces: The NLRA, under Section 7 and Section 8(a)(1), protects the rights of employees to engage in “protected concerted activity,” which the NLRB generally defines as two or more employees taking action relating to terms and conditions of employment for their mutual aid or protection. The NLRB, in the past couple of years, has been particularly active in cases involving protection of Section 7 rights. This right applies to union and non-union employees. The NLRB often enforces these rights in non-unionized settings.
Protected Concerted Activity in Union and Non-Union Workplaces Overview: On June 26, 2014, the U.S. Supreme Court issued a decision in the Noel Canning case that may impact the validity of several decisions relating to protected concerted activity in the workplace. In National Labor Relations Board v. Noel Canning, the U.S. Supreme Court held that President Obama’s “recess” appointments to the NLRB were invalid, calling into question any decisions issued by the Board during this time frame. The NLRB has indicated that it will work to resolve any cases affected by the U.S. Supreme Court’s ruling as expeditiously as possible. In the interim, employers should wait for further information from the NLRB before disregarding any opinions issued while the invalid Board was in place. If you have any questions regarding this decision and how it may impact your workplace, seek advice of counsel. Examples of protected concerted activities under Section 7 include:
The NLRB has also recently held that a single employee may engage in protected concerted activity if he/she acts on the authority of other employees, brings group complaints to the employer’s attention, attempts to induce group action or seeks to prepare for group action. For example, in Fresenius USA Manufacturing, the NLRB held that the discharge of an employee for writing offensive and possibly threatening statements on union newsletters left in an employee break room in an effort to encourage fellow employees to support the union in an upcoming decertification election violated Sections 8(a)(1) and (a)(3) of the Act. The Board reasoned that the employee had engaged in protected concerted activity, and had not lost the protections of the Act because of his misconduct.
Similarly, in Hoodview Vending Co., the Board held that firing an employee for circulating gossip that someone was going to be fired was in violation of Section 8(a)(1) of the Act because any discussion of “job security” is “inherently concerted.” The decision noted that discussion of job security is “concerted even if group action is nascent or not yet contemplated.” The Section 7 right has been interpreted to mean that employees can act together to improve wages and other conditions of employment. Importantly, this right applies to both union and non-union employers. Recent decisions issued by the Board have further expanded employee protections by re-defining the term “protected concerted activity” in a way that is unprecedented.
For example, recent NLRB decisions have attacked the ability of employers to require that workplace investigations be kept confidential, struck down class actions waivers contained in employee arbitration agreements, and even called into question the ability of employers to characterize the employment relationship as being at-will.
- Two or more employees addressing their employer about improving their pay
- Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other
- An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions
The NLRB has also recently held that a single employee may engage in protected concerted activity if he/she acts on the authority of other employees, brings group complaints to the employer’s attention, attempts to induce group action or seeks to prepare for group action. For example, in Fresenius USA Manufacturing, the NLRB held that the discharge of an employee for writing offensive and possibly threatening statements on union newsletters left in an employee break room in an effort to encourage fellow employees to support the union in an upcoming decertification election violated Sections 8(a)(1) and (a)(3) of the Act. The Board reasoned that the employee had engaged in protected concerted activity, and had not lost the protections of the Act because of his misconduct.
Similarly, in Hoodview Vending Co., the Board held that firing an employee for circulating gossip that someone was going to be fired was in violation of Section 8(a)(1) of the Act because any discussion of “job security” is “inherently concerted.” The decision noted that discussion of job security is “concerted even if group action is nascent or not yet contemplated.” The Section 7 right has been interpreted to mean that employees can act together to improve wages and other conditions of employment. Importantly, this right applies to both union and non-union employers. Recent decisions issued by the Board have further expanded employee protections by re-defining the term “protected concerted activity” in a way that is unprecedented.
For example, recent NLRB decisions have attacked the ability of employers to require that workplace investigations be kept confidential, struck down class actions waivers contained in employee arbitration agreements, and even called into question the ability of employers to characterize the employment relationship as being at-will.