Law and Arbitration Offices of Donald T Ryce

            One law that is seldom used in connection with non-union employers nevertheless applies to most of them – the National Labor Relations Act.  The NLRA provides protection even to non-union employees regarding certain employee conduct considered to be protected, concerted activity.

            “Protected concerted activity” takes a number of forms which are surprising to employers unfamiliar with labor law.  For example, even non-union employees have a right to strike and, even though they can be permanently replaced, they cannot be fired for engaging in a legal strike.  The word “protected” in the phrase “protected concerted activity” refers to an employee’s rights under 29 U.S.C. §157, which includes “activities for the purpose of … mutual aid or protection” in conjunction with wages, hours, or terms and conditions of employment.  “Concerted” means that more than one person is involved in or has authorized the activity.  Generally speaking, when there is some kind of group (two or more employees) action, even by an individual employee if done on behalf of other employees, which relates to wages, hours, or terms and conditions of employment, such activity may well be legally protected.  Therefore, what some employers may regard as insubordination may actually be legally protected conduct.

            Just a few examples of the kinds of activities held to be protected under the NLRA include:  (1) speaking up at a group meeting to challenge the announcement of a new break policy, NLRB v. Caval Tool Div., 262 F.3^rd 184 (2^nd Cir. 2001);

(2) protesting discipline taken against fellow employees pursuant to an agreement among them to support each other, Columbia University, 236 NLRB 793 (1978); (3) insistently requesting a group meeting between the employer and employees, AMP, Inc., 218 NLRB 33 (1975);  (4) complaining in concert to public agencies about employment conditions, Franklin Iron & Metal Corp., 315 NLRB 819 (1994); G.V.R., Inc., 201 NLRB 147 (1973); and (5) using the employer’s email system to express their concerns about getting used computer monitors instead of new ones and about the perception that they were being treated differently than other employees, American Postal Workers Union, et al., 2006 WL 2559848.  Furthermore, while rules prohibiting malicious, abusive, or threatening speech or behavior are generally permissible, employers cannot threaten to discipline employees for making statements that are simply false but are not malicious, the theory being that such broad prohibitions could stifle speech which may be protected, concerted activity.   In Re Martin Luther Memorial Home, Inc., 2003 WL 249669 (N.L.R.B. Div. of Judges).  Therefore, a company’s blanket prohibition against spreading “false rumors” is probably illegal.

            Disciplining employees for these and similar actions is very likely “an unfair labor practice.”

            The National Labor Relations Board, a federal agency, enforces the NLRA.  Fighting the NLRB over an alleged unfair labor practice can get expensive for an employer.  Not only may illegally discharged employees receive reinstatement and back pay, but employers will almost certainly have to pay significant legal expenses to defend themselves.  On the other hand, if an employee filing an unfair labor charge convinces the Board that a violation has occurred, the NLRB’s General Counsel will then prosecute the case at no cost to the employee.