The Bureau of Labor Statics reports a mere 6.7% of private sector employees nationwide belonged to labor unions in 2015. Given that reality, the many millions of employees working in a non-union shops, and owners of businesses not subject to a collective bargaining agreement certified by the federal National Labor Relations Board (the “Board”), may reasonably ask, “What do federal labor laws matter to me?” As this article explains, they matter quite a lot.
Right to Engage in “Concerted Activities”
Many employees, employers and even lawyers are not aware that nonunion employees have the right, under federal labor law, to petition their employer to redress work-related concerns, such as wages, hours, work rules or workplace safety. Section 7 of the National Labor Relations Act (the “Act”) provides in relevant part: “Employees shall have the right to self-organization, to form, join, or assist labor organization, 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 of such activities […]” 29 USC § 157. “Employees” covered by the Act can include almost all employees other than supervisors. “Other concerted activities” subject to protection include actions by individual employees united in pursuit of a common work-related goal. To be “concerted,” the action must be with or on the authority of other employees, and not solely by and on behalf of the individual, complaining employee.
Remedies for violations of this section include reinstatement with full back pay plus interest, as well as the recovery of attorney fees in the event that an employee prevails at hearing. Violations of this section are prosecuted not in court but in administrative actions brought before the National Labor Relations Board. When a violation is found, employers also are required to post notices to all employees detailing both the violation and the Board ordered remedy. The case Dickens, Inc. and Wending Lin (NLRB 2008) illustrates the risk of violating this section. The employer in there initiated a discussion about bonuses with the plaintiff, Lin, and two other employees. During the discussion, Lin complained about the amount of the bonus, commenting that the rate he and his fellow employees (using the word “we”) were being offered was only .2%. In finding for the employee, the Board applied the general rule that employee complaints using the first person plural, during employer-initiated discussions about terms and conditions of employment, constitute concerted activity. On this basis, the Board ruled that Lin’s subsequent discharge violated the Act.
Recent cases discuss a variety of different kinds of concerted action afforded protection under the Act: (1) an employee’s right to discuss with other employees workplace discipline she had received (Inova Health Sys. v. Nat’l Labor Relations Bd. (D.C. Cir. 2015)); (2) an employee’s right to complain about workplace safety issues and organize a work stoppage to protest work conditions (Greater Omaha Packing Co. v. Nat’l Labor Relations Bd. (8th Cir. 2015)); (3) an employee’s right to engage in union organizing activities during break times on the employer’s premises (Hyundai Am. Shipping Agency, Inc. v. Nat’l Labor Relations Bd. (D.C. Cir. 2015)); (4) complaints about an excessive workload during a “team building” lunch (MCPC Inc. v. Nat’l Labor Relations Bd. (3rd Cir. 2016)); (5) the right to wear a union logo pin, where employer policy permits the wearing only of baseball caps with company logo (World Color (Usa) Corp. v. Nat’l Labor Relations Bd. (D.C. Cir. 2015)); the right to file a class action lawsuit against employer, where mandatory arbitration agreement lacks a carve-out for filing Board charges (Murphy Oil U.S., Inc. v. Nat’l Labor Relations Bd. (5th Cir. 2015)); and (6) the right to engage in temporary work stoppage and complain about speed of work a packing company (Staffing Network Holdings, LLC v. Nat’l Labor Relations Bd. (7th Cir. 2016)).
Avoiding Section 7 Liability
The Board in recent years has pursued violations of the nation’s labor and employment laws with more vigor than under previous administrations. To avoid costly litigation, damages and penalties, it is important that owners of businesses, large and small, learn to recognize and respond appropriately to “concerted activities” of their employees. Depending on how they are drafted and applied, many common policies contained in employee handbooks risk violating Section 7 rights. These include (1) confidentiality policies covering workplace investigations and employee pay information; (2) solicitation/distribution policies; (3) electronic usage/social media policies; (4) bulletin boards ; and (5) workplace apparel policies. Liability under the Act need not be willful or intentional, as shown in the recent case of Northeastern Land Services v. NLRB (1st Cir. 2009). The employer there fired an employee for violating a facially neutral confidentiality policy. The court affirmed a Board ruling that the employer had violated the Act by adopting a confidentiality provision that was unreasonably broad, insofar as it required employees not discuss their compensation with other employees. Not surprisingly, the court went on to hold that by terminating the employee in question, the employer also violated the Act, and affirmed the relief ordered by the Board, which included companywide injunctive relief and reinstatement of the fired employee with back pay and interest. Notably, the court held that the employee’s firing for violating the policy was unlawful regardless of whether the conduct could have been prohibited by a lawful rule. In short, employers must do more than learn to recognize the more obvious collective acts (such as complaints over wages) to comply with the law. Employers must take care in drafting workplace policies which, although facially neutral, may inadvertently lead to Board discipline.
Although outside the scope of this article, union organizing campaigns raise a host of difficult questions for employers. They are the classic example of “concerted activity,” and culminate (when successful) in the core principal of our system of industrial fairness: the right to collectively bargain for better wages and working conditions. The list of “don’t’s” for employers is extensive, but can be reduced to a useful mnemonic of prohibited practices: “TIPS”. That is, threats, interrogation, promises and spying.