Concerted activity for the purpose of collective bargaining or other mutual aid and protection, a protected right of both union and non-union employees under the National Labor Relations Act, encompasses many activities that, at first blush, may not be easily identified as protected by federal law. Even the simplest of activities, such as a discussion between a single employee and supervisor concerning wages, benefits or other terms of employment may constitute a protected concerted activity if undertaken for the mutual aid or protection of employees. Employers should exercise caution in prohibiting certain activities, or imposing discipline responsive to them, in order to avoid running afoul of Federal law.
Concerted activity for the purpose of collective bargaining or other mutual aid and protection, a protected right of both union and non-union employees under the National Labor Relations Act, encompasses many activities that, at first blush, may not be easily identified as protected by federal law. Employers must be cautious when taking employment-related action based on such activities, even if the activity appears on its surface to be outside the scope of the Act, as an adverse action based on a protected right may have significant consequences to the employer.
Section 7 of the National Labor Relations Act provides:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].
[29 U.S.C. § 157.] While this section clearly codifies certain specific rights, such as collective bargaining and participation in labor union activities, it also protects the rights of employees to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” It is the broad language of these latter protections that often proves troublesome for employers. Moreover, although Section 7 makes multiple references to activity involving labor unions, leading some employers to believe it applies only to union employees, the section protects concerted activities of all employees, including non-union employees.
Unfortunately, the NLRA does not define its use of the term “concerted activity.” However, both the National Labor Relations Board and the federal courts have provided guidance in this area, and have generally held that the term “concerted activity” includes the activities of an employee or employees who engage in the activity to achieve a common goal in benefit to a company’s employees. NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 830 (1984). It is the goal of mutual benefit or aid to multiple employees that lies at the heart of the NLRA’s protection of concerted activity. Further, while the use of the term “concerted” may imply the need for participation by multiple individuals, a single individual may be found to engage in protected concerted activity under Section 7 so long as he or she takes action to protect the rights of other employees and not just his or her own. In fact, an individual employee need only work with or on authority of another in engaging in the activity to trigger the Act’s protections.
Given the broad scope of activities that fall within the definition of “concerted activity” under Section 7, it is not surprising that numerous employers have unknowingly restricted employee activities without realizing that they were violating Section 7 rights. Of significant concern to employers is the speed with which activity can become “concerted” under the Act. Recently, the NLRB illustrated this point when it held that even the mere act of an individual employee complaining to a supervisor about a perception that employees of a certain national origin received raises based on the fact that the supervisor was of the same national origin constituted protected concerted activity. See Parexel Int’l, LLC, 356 NLRB 82 (2011). When the company fired the complaining employee over concern about a “rumor” that employees of a certain national origin were receiving favorable treatment, the NLRB ruled that her termination was in violation of the Act, as her complaint to her supervisor was a discussion concerning wages for the mutual aid or benefit of employees, a vital term and condition of employment resting at the very heart of Section 7’s protections. Id. The Board held that the employer’s attempt to “nip” such concerted activity in the “bud” was a clear restraint on the exercise of Section 7 rights.
Cases such as Parexel illustrate not only the expansive scope of protected concerted activity, but also the extension of Section 7’s protections to employees who are not members of a union. Even where a non-union employee’s actions have nothing to do with a union, such actions may still be considered protected concerted activity if they seek mutual aid and protection of employees and may reasonably be expected to affect terms or conditions of employment. For example, the refusal by non-union employees to continue working in unusually unsafe conditions has been considered protected concerted activity. NLRB v. McEver Engineering, Inc., 784 F.2d 634 (5th Cir. 1986). Similarly, the refusal of non-union employees to continue working after lodging several complaints about their supervisor was protected concerted activity where the employer failed to respond to the complaints. Trompler, Inc. v. NLRB, 338 F.3d 747 (7th Cir. 2003). More recently, the NLRB has found that where the non-union staff of an urgent care center sent an anonymous letter to the owner/doctor, asking for reconsideration of wage cuts and suggesting alternatives for saving money, that activity was protected concerted activity, and the firing of two employees who wrote and edited the letter was a violation of Section 7 rights. Northfield Urgent Care, LLC, 358 NLRB17 (2012).
Each of these cases illustrates not only the expansive nature of protected concerted activities under Section 7 of the Act, but also the fact that such protections are afforded to all employees, regardless of their affiliation with a labor union. All employers, especially those who employ non-union personnel, should carefully consider the basis of any planned employment action, to ensure that it is not taken in response to an activity that is protected by Section 7. At a minimum, the precedent of the NLRB and federal courts make clear that discussions of wages, hours, benefits and other similar topics are almost always protected, and should not be limited or banned in order to avoid running afoul of Section 7. All employers should ensure that their policies and the enforcement of those policies do not impinge on the rights bestowed by Section 7.
If you have questions regarding the nature of protected concerted activity or are in need of consultation on this or other employment or labor matters, please visit our website at www.hwelaw.com.