Continuing its campaign to educate workers, particularly those in non-union settings, regarding their Section 7 rights, the National Labor Relations Board this week launched a new webpage on its website specifically to describe protected concerted activity and to apprise workers of their rights "to act together for their mutual aid and protection, even if they are not in a union."
Section 7 of the National Labor Relations Act ("NLRA") states that:
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 such activities.”
To demonstrate what Section 7 rights look like in action, the webpage contains 13 case examples from around the country of employer discipline that the Board found unlawful, which can be viewed by clicking points on a map. The case examples are wide-ranging and span the typically-thought-of examples of employees registering complaints directly to their employers to cases where employees aired their employer grievances on YouTube and Facebook. The diverse range of case examples appears to be a conscious effort by the NLRB to spotlight the ever-expanding face of Section 7 concerted activity in light of social media.
Some of the highlighted cases include stories of:
- Five construction employees fired after several of them appeared in a YouTube video complaining of hazardous working conditions;
- A customer service representative fired after discussing wages with another employee, based on a policy in the company handbook that the NLRB found was unlawful;
- A paramedic fired after posting grievances about her supervisor on Facebook following a work-related incident;
- An employee fired and threatened with deportation after he delivered a petition protesting their poor living conditions and irregular hours that was signed by several dozen welders who were performing contract work under temporary visas; and
- Two women fired for telling a newspaper that they, along with a group of poultry workers, walked off the job to protest a new requirement that they pay 50 cents per pair of latex gloves that they used.
In addition to the case examples, the webpage raises the three following questions to guide workers in understanding whether their activity is protected by Section 7:
- Is the activity concerted?
- Does it seek to benefit other employees?
- Is it carried out in way that causes it to lose protection?
The launch follows the NLRB's decision to indefinitely postpone its posting rule that would have required employers to post a notice of employee rights (reported here), which came on the heels of the Circuit Court of Appeals for the District of Columbia ruling that temporarily barred the NLRB from enforcing its posting rule.
In light of the NLRB's continued attention to this issue, and with the face of concerted activity ever expanding, employers would be prudent to visit the new webpage and review the highlighted cases to be able to recognize concerted activity and to take proactive measures to train managers and HR professionals to recognize concerted activity so employers can correctly address situations that could open them up to liability.