One of the most important parts of the National Labor Relations Act is Section 7. This Section protects employees who engage in concerted activity. No one, myself included, disputes that employees, whether in a union or not in a union, are allowed to engage in concerted activity. The disputes arise over whether certain activity is protected concerted activity or concerted but not protected activity. Section 7 of the NLRA states in its entirety:
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 and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) [of the NLRA].
The term “concerted” has been defined as an employee acting on behalf of others. A single employee can be engaged in concerted activity only if she is acting in the interest of others. More common concerted activity is when a group of employees protest their working conditions. Concerted activity does not need to be union-related for it to be protected. To prove that activity is both concerted and protected, the activity must 1) involve a work-related complaint or grievance; 2) further some group interest; 3) seek a specific remedy or result; and 4) not be unlawful or otherwise improper.
Here are some examples of what is and is not protected concerted activity.
- A non-union manufacturer properly discharged an employee for using company time and resources to surf the Internet when the employee used his employer-provided computer to research rumors that the company was being sold. This type of computer use was not protected by Section 7 of the NLRA because there was an insufficient link between the activity and the employee’s working conditions.
- Employees’ complaints about preferential treatment of other employees is protected concerted activity.
- An employee driven letter writing campaign focused on general safety concerns and criticizing an employer’s business reputation was not protected concerted activity because the concerns were not common to all employees.
- Wearing pro-union buttons, hats, and other insignia is usually protected concerted activity.
- An employee was wrongfully discharged for cursing at his supervisor during a meeting regarding that employee’s unrelated concerted activity. According to the NLRB, that employee’s “brief outburst” was protected in light of the employer’s refusal to address the employee’s other concerns.
- Union members who openly solicited and collected money in an employer’s break room so as to pay an attorney to file charges or a lawsuit against the employer was protected concerted activity.
Sometimes there is no rhyme or reason why activity is considered protected and concerted one time and nearly identical activity is not protected and concerted another time. The NLRB frequently changes Board Members and regularly reverses its prior rulings depending on the make up of the Board. Because of this, it is critically important to consult with legal counsel (and not simply rely on these brief summaries) before implementing or continuing certain workplace policies.
Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.