On June 18, 2012, the National Labor Relations Board (Board) launched a page on its website that describes the rights of all employees, including non-union employees, to act together for their mutual aid and protection. The page, which can be accessed by clicking here, defines protected concerted activity. The page also gives visitors examples of more than a dozen recent cases where the Board found employees' actions to be protected concerted activity. Board Chairman Mark Pearce stated, "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 creation of this page likely is a reaction to an April 17, 2012, federal court ruling enjoining the implementation of the Board's notice posting rule. The notice posting rule would have required employers to post notices informing employees of their rights under the National Labor Relations Act (Act).
The website page appears to be an alternative way for the Board to get its message out to non-union employees that they have rights under the Act. At the top of the page, the Board states, "The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren't in a union. If employees are fired, suspended or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away." The page then gives employees Board contact information so that they can ask questions about whether certain actions constitute protected concerted activity.
Claims that employers allegedly violated the protected concerted rights of non-union employees only make up about 5 percent of the Board's current caseload. However, it is clear the Board is trying to bolster those numbers to encourage non-union employees to bring forward complaints to the NLRB. With the Board assertively educating non-union employees on their rights under the Act and encouraging them to bring complaints forward, employers should ensure they know what constitutes protected concerted activity so that, when issuing discipline, they can knowledgeably consider any potential NLRA ramifications.