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), enfd. 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 employees 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 facilitys 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 1970s,
in Alleluia Cushion Co., 221 NLRB 999 (1975), the Board adopted
the broad concept of "implied" concerted activity. In
that case, an individuals 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 complainants 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 NLRAs 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.