Protecting Concerted Activity: When One Plus Zero Equals Two
When we think of the National Labor Relations Act and unfair labor practices, we tend to think of union organization and activities. There is a tendency to forget that the NLRA also protects individuals engaged in not just "unions," but also "concerted activities" for their mutual aid and protection. Thus Section 7 of the NLRA states:
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 . . . .

In fact, protected concerted activity sometimes includes employee conduct that has nothing to do with unions directly, as when employees act together to complain about their work places and their jobs. For instance, employees who get together and complain to management about their pay or benefits are engaged in concerted activity protected by Section 7 of the Act.

Employees are engaged in protected concerted activity when they walk off the job to protest oppressive working conditions, such as extreme heat or cold. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962); Magic Finishing Co., 323 NLRB 234 (1997). By contrast, an employee who walks out over his own individual gripe is not protected. See Lin R. Rogers Electrical Contractors, Inc., 323 NLRB 988 (1997). But an employee who discusses the unsafe condition of his truck with another employee before refusing to drive it is engaged in protected concerted activity. Portland Airport Limousine, Co., Inc., 325 NLRB No. 305 (1998).

The NLRB General Counsel has issued a number of novel complaints in recent years in cases involving employee concerted activity. For instance, the General Counsel has taken the position that employee e-mail systems used regularly by employees to communicate are extensions of the workplace where employees are entitled to communicate about the terms and conditions of their employment and about unions. Report of the General Counsel, September 1, 1998. Employer rules forbidding such communications, according to the General Counsel, are overboard and unlawful in the absence of special circumstances making the prohibition necessary for the maintenance of production or discipline. In Timekeeping Systems, Inc., 323 NLRB 244 (1997), the NLRB found that sending an e-mail message regarding vacation policy was concerted because the message sender was attempting to correct misimpressions and arouse support for his decision to oppose the policy. Left undefined are the circumstances that would justify prohibitions on the use of e-mail, including concerns about liability for improper behavior such as sex harassment; the extent to which electronic communications can be limited to non-work time; and whether and when employer monitoring is permissible.

Overly broad rules prohibiting employee disclosure of confidential information also can be unlawful. Automatic Lawn Service, 306 NLRB 1072 (1992), enf’d. 977 F.2d 582 (unpublished decision) (6th Cir. 1992). These include rules barring disclosure of "employee problems" and discussions of employee grievances that take place out of earshot of patients. Pontiac Osteopathic Hospital, 284 NLRB 442 (1987). In testing confidentiality rules, the Board considers "whether the mere maintenance of rules . . . would reasonably tend to chill employees in the exercise of their Section 7 rights." Lafayette Park, 326 NLRB No. 69 (August 27, 1998). According to the NLRB General Counsel, confidentiality rules are overly broad and unlawful when their ambiguity would bar disclosure of non-confidential information to government representative or other outsiders (including unions), such as information about an employee’s own wage rate. See Report of General Counsel, November 2, 1999. In another case, the General Counsel authorized complaint when employees were disciplined for using a health facility’s letterhead to complain to physicians about their impending layoff. Ibid. Another complaint alleged that an employer unlawfully refused to allow employees to show a pro-union video during their break time. Report of the General Counsel, September 1, 1998.

Employee Section 7 rights are violated, too, when employees are aware that a supervisor has been disciplined for refusing to comply with an unlawfully discriminatory employer directive, such as one that unlawfully discriminates against returning strikers. Employer threats to call in the INS in retaliation for protected concerted activity also are unlawful, and can lead to a bargaining order if made in retaliation for union activity. Viracon, Inc., 256 NLRB 245 (1981).

For many years there has been disagreement at the NLRB over whether an employee, acting alone, can be engaged in "concerted" activity, or whether "concert" by definition requires activity by more then one employee. For instance, a lone employee who seeks to enforce a collective bargaining agreement is said to be engaged in concerted activity, whether or not the employee is correct in his position that the agreement has been breached. NLRB v. City Disposal Systems, 465 U.S. 822 (1984). Back in the 1970’s, in Alleluia Cushion Co., 221 NLRB 999 (1975), the Board adopted the broad concept of "implied" concerted activity. In that case, an individual’s complaints about unsafe conditions to the Occupational Safety and Health Administration were deemed to be "concerted" absent evidence that other employees did not share the complainant’s interest or support his complaints. In 1984, a newly constituted Board retreated from Alleluia Cushion. Reviewing legislative history, the Board concluded that "concerted activity" required some form of collective action, i.e., activity engaged in with or on the authority of other employees. Meyers Industries, 281 NLRB 882 (1986). Later, the courts accepted that Board position because it was a reasonable interpretation of, even if not mandated by, the NLRA.

At the present time, then, in the aftermath of Meyers concerted activity still requires some sort of employee concert, but includes actions by individuals seeking to initiate or to induce or prepare for group action, as well as actions by individual employees who bring group complaints to management. Youville Health Care Center, Inc., 328 NLRB No. 155 (July 29, 1999). What is disconcerting, however, is that agitation continues by some Board members to return to the broad Alleluia Cushion concept of implied concerted activity. Former Member Browning refused to rely on the more limited Meyers view and, more recently, former NLRB Chairman Gould argued for Meyers to be abandoned altogether. Pikes Peak Pain Program, 326 NLRB No. 28 (August 20, 1998).

Future changes in Board composition could see a return to the broad Alleluia "concerted activity" equation, i.e., one plus zero equals two. In the meantime, employers must be aware of the NLRA’s concerted activity protections and how employee concerted activity is protected even in the total absence of unions. The protection of concerted activity takes on added significance in a private sector workforce where unions have lost members every year since 1985. Management can expect unions and the plaintiffs’ bar to make added use of these protections, particularly since their enforcement by the NLRB requires minimal expenditures by complainants and their representatives.


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