Section 7 of the National Labor Relations Act (NLRA) protects the right of union and non-union employees to discuss terms or conditions of employment and collectively express workplace concerns. These employee activities and communications are referred to as “protected concerted activity” (PCA). The National Labor Relations Board (NLRB) administers the NLRA.
We have published several articles in the past year highlighting the NLRB’s scrutiny of employers’ discipline of non-union employees who have engaged in PCA, especially in relation to employee use of social media. See Administrative Law Judge Orders Reinstatement and Backpay for Five Employees Terminated for Facebook Postings from September 2011 and Disciplining an Employee for a Facebook Post that Criticizes a Company Policy from August 2011.
This week, the NLRB announced its new webpage that describes the rights of employees to engage in PCA. The webpage includes a brief Q&A about PCA and an interactive map of the United States that highlights a number of NLRB cases that involve PCA issues.
Visitors to the webpage are instructed to contact an information officer at the nearest NLRB regional office if they have questions. The information officer will focus on three questions: Is the activity concerted? Does the activity seek to benefit other employees? Is the activity carried out in a manner that would cause the activity to lose protection?
NLRB Chairman Mark Gaston Pearce expressed the need for the NLRB to be vocal about PCA issues. Chairman Pearce stated, “[a] right only has value when people know it exists. We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.”
The NLRB’s new webpage serves as another reminder to both union and non-union employers of the proactive approach the current NLRB is taking regarding the administration and enforcement of the NLRA. Employers must exercise caution in drafting and enforcing workplace policies that might chill the exercise of employees’ rights to discuss terms or conditions of employment and workplace concerns.