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NLRB Launches Webpage Describing Protected Concerted Activity

Added by Brad P. Miller in Articles & Publications, Employment Law on June 26, 2012

The National Labor Relations (NLRB) Board issued a news release on June 18, 2012, which made a webpage public that “describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union.”

“The page, at www.nlrb.gov/concerted-activity, tells stories selected by the NLRB, of more than a dozen recent cases involving protected concerted activity, which can be viewed by clicking points on a map on the NLRB’s webpage. Among the cases: A construction crew 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 fired after reporting safety concerns affecting other employees; a paramedic fired after posting work-related grievances on Facebook; and poultry workers fired after discussing their grievances with a newspaper reporter.

Some cases were quickly settled after charges were filed, while others progressed to a Board decision or to federal appellate courts. They were selected by the NLRB to show a variety of situations, but they have in common a finding at some point in the NLRB process that the activity that the employees undertook was protected under federal labor law.

The right to engage in certain types of concerted activity was written into the original 1935 National Labor Relations Act’s Section 7, which 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.”

That right has been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court over the years. Non-union concerted activity accounts for more than 5% of the NLRB’s recent caseload.

“A right only has value when people know it exists,” said NLRB Chairman Mark Gaston Pearce. “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.”

Whether or not concerted activity is protected depends on the facts of the case. General, concerted activity requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves coworkers before acting, or acts on behalf of others.

Will the improvement sought — whether in pay, hours, safety, workload, or other terms of employment — benefit more than just the employee taking action? Or is the action more along the lines of a personal gripe, which is not protected?

Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection.”

For more information please contact a member of our Employment Group or call 208.344.6000.