By Tim Kamin
In a continuation of its growing trend of seeking to enforce the rights of all workers, including those in union-free work forces, the National Labor Relations Board added a page to its website last month dedicated to promoting protections of the National Labor Relations Act that apply to non-union and unionized employees alike. The stated target audience for this educational Web page is all American workers – your employees.
While the Act is best known for governing the relationships between employers and unions that represent employees, Section 7 of the Act guaranties the rights of all workers, not only to join labor organizations and engage in collective bargaining, but also to engage in “concerted activities” for “other mutual aid or protection.”
In order to be protected by the Act, the employee activities must be “concerted,” meaning the actions are undertaken by more than one employee acting together, or by one employee on behalf of a group of employees.
The activities must also be for “mutual aid or protection,” meaning that the activities must address working conditions and terms of employment. As the Web page highlights, such activities are protected in non-union and unionized workplaces alike.
The new page went online on June 18 and provides examples of cases in which the Board has found that employee group activities were protected by the Act and in which the Board has taken some action on behalf of the employees involved, whether by settling charges with the employer or by prosecuting the employer. The interactive Web page visually depicts a map of the United States with several markers identifying the locations of the cases discussed. By clicking on the markers, viewers may read the basic facts of the cases and the results.
Currently, 13 case examples are highlighted on the Web page. One of those cases originated at an Oshkosh manufacturing plant where a group of female employees discussed among themselves what they perceived to be rude treatment and favoritism by a supervisor.
In their discussions and research, the employees discovered that that the supervisor was a registered sex offender. The employees requested a meeting with management to discuss their concerns. Instead, management met with each of the women individually and questioned them about their activities. The employer disciplined several of the women for talking about the supervisor with one another, including one discharge, two demotions, one reassignment to another shift, and written warnings for others.
Five of the women filed charges with the Board, alleging that they were punished unlawfully for engaging in concerted activities for the purpose of mutual aid or protection – action as a group to obtain relief from an abusive supervisor.
The Regional Director for the NLRB found merit to the allegations after investigating, and the employer settled the charges by offering reinstatement to all of the women to their former positions, paying backpay where appropriate and expunging all of the disciplinary actions from their records.
Other examples of the cases highlighted by the Board on the Web page include:
- A paramedic in Connecticut who was discharged after posting negative comments about her supervisor on the social networking website Facebook;
- A food plant worker in California who complained about safety concerns on behalf of a group of concerned coworkers;
- Urgent care staff members in Minnesota who sent an anonymous letter to the owner urging against an announced wage cut; and
- A group of construction workers in Puerto Rico who refused to return to work during a thunderstorm downpour out of concern for their own safety.
These cases illustrate for all workers their rights under the Act. As the current chairman of the NLRB stated regarding the launching of the website, “a right only has value when people know it exists,” and that these protections of Section 7 have been “one of the best kept secrets” of the Act.
As employee awareness of these protections grows, it is only reasonable to assume that these educational measures will result in more such activities by employees who feel empowered by the protections, as well as more charges against employers alleging unlawful retaliation for such activities.
Employers should consider providing training to all managers and supervisors regarding these previously little-known protections of the law to prevent violations. Employers should also undertake a thorough review of policies, work rules and employee handbooks for potentially “overbroad” provisions that may be found to infringe upon these rights.
Timothy C. Kamin is an attorney with Krukowski & Costello S.C., representing management exclusively in labor and employment law matters, including unfair labor practice and representation proceedings before the National Labor Relations Board, in collective bargaining negotiations and grievance arbitration, assisting employers in responding to union organizing campaign, and employment discrimination matters.