In previous posts, we’ve discussed how the National Labor Relations Board’s (NLRB) most frequent complaint about how employers handle employees’ use of social media is that it interferes with protected concerted activity -- Section 7 rights under the National Labor Relations Act (NLRA). Now, the Board has launched a new webpage that explains the rights of employees who act together for their mutual aid and protection, even in nonunionized workplaces.
The webpage, which can be found at www.nlrb.gov/concerted-activity, describes more than a dozen recent NLRB cases involving protected concerted activity and contains a U.S. map that readers can use to find litigation originating in their state. The cases address a variety of scenarios, including:
- A construction crew that was fired after refusing to work in the rain near exposed electrical wires;
- A customer service representative who lost her job after discussing her wages with a coworker;
- An engineer at a vegetable packing plant who was fired after reporting safety concerns affecting other employees;
- A paramedic who was fired after posting work-related grievances on Facebook; and
- Poultry workers who were fired after discussing their grievances with a newspaper reporter.
Some of the cases were quickly settled after unfair labor practice (ULP) charges were filed with the NLRB, while others progressed from administrative hearings to NLRB review and appeals to a federal appellate court. In each decision, the common thread was that nonunionized workers who engaged in protected concerted activity and were disciplined because of that activity could seek redress (e.g., reinstatement and back pay) by filing charges with the NLRB.
Under Section 7 of NLRA, employees have the right to self-organize to form, join, or assist a labor organization to bargain collectively through representatives of their own choosing and engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection. Section 7 also provides that employees “have the right to refrain from any and all such activities.”
According to NLRB Chairman Mark Gaston Pearce, that right has value only when employees know what the right to engage in protected concerted activity means, and to date, Section7 rights have been “one of the best kept secrets of the NLRA.”
With the launch of the NLRB’s new website, it’s clear that the Board is aggressively trying to expand its influence on nonunionized workplaces. While the NLRA has been in place since 1935, litigation related to the exercise of Section 7 rights in nonunion workplaces has been very limited. Reminding all employees, via a website, of their right to engage in protected concerted activity and the Board’s willingness to help workers who feel those rights have been interfered with will certainly prompt more employees to seek the NLRB’s assistance in resolving their workplace grievances.
Ironically, the Board’s attempt to force all covered employers to post a special NLRB notice has been placed on hold by the courts, which have questioned whether the Board has authority to promulgate such a rule. By creating a user-friendly website, the NLRB is clearly attempting to reach as many employees as possible with its message. It will be interesting to see how many employees access the site from their workstations. Of course, if you try to monitor your employees’ efforts to obtain the data, you might be hauled before the Board for engaging in improper employee surveillance.