Protected Rights Expanded in Solidarity

We have all become familiar with the protected rights of employees under the National Labor Relations Act. To be protected under Section 7 of the NLRA, employee conduct must be both “concerted” and engaged in for the purpose of “mutual aid or protection.” The question that the NLRB was presented with in a very recent case was whether an employee was engaged in “concerted activity” for the purpose of “mutual aid or protection” when she sought assistance from her coworkers in raising a sexual harassment complaint to her employer. The NLRB held that her conduct was protected even though it only involved her personal complaint. In so doing, the NLRB invoked what it called the “Solidarity Principle,” reasoning that in enacting Section 7, Congress created a framework for employees to “band together” in solidarity to address their terms and conditions of employment with their employer.

Complaint of Sexual Harassment

In this case, a cashier at the employer’s grocery store asked her supervisor if she could participate in training related to the sale of alcohol, known as “TIPS.” Her boss told her to write a note to him on a whiteboard in the breakroom, which she did. Her message read, “Bruce . . . Could you please sign me up for TIPS training on 9/10/11?” The next day, she saw that the word “TIPS” had been changed by substituting the “P” with a “T” and that a picture of a worm urinating on her name had been added to her original whiteboard message. She then asked her boss about filing a sexual harassment complaint, and when he asked why, she got angry and left. Later, she contacted another supervisor who told her to take a photo of the whiteboard. Instead, she copied the picture and the altered language from the whiteboard and asked three of her coworkers to sign a document attesting to the accuracy of her drawing and copying, never intending to file a group complaint.

Even Acting for One’s Own Protection Indicates “Solidarity”

The HR Manager got involved and began an investigation that ultimately ended in imposing discipline on the male employee who had altered the whiteboard. During the investigation, the HR Manager questioned the employee about why she felt that she had to obtain her coworkers’ signatures on the statement. She responded that it was for her “own protection.” Yet the NLRB concluded that by enlisting the help of other employees in her personal complaint, it was concerted and her activity was for their mutual aid and protection.

Strong Dissent

Significantly, no adverse action was taken against the complaining employee, but the NLRB in expressing its “Solidarity Principle” concluded that her conduct was protected but under the facts of this case imposed no remedy. In the words of a strong dissent, this holding establishes the chilling prospect of impending investigations, prolonged litigation and potential liability for employers in future similar cases. Such prospects necessarily restrict an employer’s range of motion in responding to employee complaints and conducting investigations, regardless of whether the employer is subsequently found, on the particular facts and circumstances of its case, to have acted lawfully. The NLRB, in the view of the dissent, turns the existing law on its head by reasoning that whenever an employee solicits coworker support in raising a claim of protection under an individual employment rights statute (e.g., Title VII, ADA, FMLA, FLSA, OSHA, Workers’ Compensation), the NLRB will presume a solidarity-based mutual purpose without requiring any affirmative showing of it.

No Limits to the Protections

Finally, the dissent suggests that any time an employee asks for assistance from another employee with any kind of employment-related problem, this is now protected Section 7 activity. Every request for assistance, no matter how trivial or how important—and no matter how individual-specific, will now receive statutory protection when the request relates in some way to a condition of work.

Heads Up for Employers

We have seen the NLRB expand its traditional role into areas where it had not gone before, especially in the non-union context. Social media policies; confidential investigations; bans on internal and external discussions of wages, hours and working conditions; and even protecting “cussing out the boss” have been the subjects of NLRB scrutiny and expansion of rights for employees. Now with this case, the dissent appears to have a point – that virtually any personal complaint can be seen, in the right circumstances, to be fully protected. The problem for employers is that you just never know for sure.

Reference: Fresh & Easy Neighborhood Market, Inc., (NLRB August 11, 2014).