• Even Without a Union, Certain Employee Actions Are Still Protected by the National Labor Relations Act
  • June 6, 2011 | Author: Daniel B. Gilmore
  • Law Firm: Chambliss, Bahner & Stophel, P.C. - Chattanooga Office
  • Since its enactment in 1935, Section 7 of the National Labor Relations Act (the “Act”) has provided employees of any employer covered by the Act the right to do any of the following:

    • Form, or attempt to form, a union in the workplace;
    • Join a union, whether the union is recognized by the employer or not;
    • Assist a union in organizing fellow employees;
    • Refuse to do any or all of these things.

    The Act also protects employees’ rights to act together, with or without a union, to improve working terms and conditions, including wages and benefits. These are known as protected concerted activities.

    It is the NLRB's mission to administer and enforce the provisions of the Act.  Until recently, the Board has approached its role relatively passively.  But this passivity has certainly changed now that the Board is comprised of a 3 to 1 majority of members nominated or appointed by President Obama. President Obama made these additions to the Board arguably as a payback to organized labor for its significant financial support leading up to the 2008 general election.  In addition, the Board’s Acting General Counsel, also currently nominated by President Obama for a full term as General Counsel, has taken on a much more aggressive approach to supporting employees' exercise of their Section 7 rights.  

    In an apparent response to the continued nationwide decline of union membership and the perception that employees lack knowledge of their Section 7 rights, the Board proposed on December 21, 2010, a rule that would require all employers covered by the Act to notify employees of their rights under the Act.  As proposed, the notice would have to be posted where other workplace notices are typically posted.  If an employer communicates with employees primarily by email or other electronic means, the notice would have to be posted electronically as well.  Since the comment period has ended, the Board may now finalize and implement this new and expansive rule.  

    The Board has also sought to expand the reach of the Act in response to the growing influence of social media, both inside and outside of the workplace. In February of this year, the Board announced the settlement of a complaint it had issued involving the discharge of an employee who had posted negative comments on her Facebook page.  The complaint alleged that the employee had engaged in protected concerted activity when she posted her comments about her supervisor and responded to further comments by her co-workers (for more information regarding the allegedly over-broad rules in the employer’s employee handbook, please read our February 2011 Legal Update).

    Although this initial Facebook case involved an employee who was a union member, the Board has since announced the issuance of similar complaints involving the discharge of employees who were not represented by a union.  Last month, the Board issued a complaint against a non-profit employer following the discharge of five employees after they posted comments on Facebook criticizing working conditions, including workload and staffing issues.  Most recently, the Board issued a complaint against a BMW dealership alleging the unlawful termination of an employee for posting photos and comments on Facebook that were critical of the food and drinks served at a customer event.

    In addition, the Board’s Acting General Counsel has taken recent steps to support the efforts of employees who seek to organize unions in their workplaces.  These actions include a more aggressive use of injunctive relief when discharges take place in the context of initial organizing activities and an enhancement of backpay awards for employees who are illegally discharged.  These remedies apply equally, regardless of union membership.

    For the remainder of 2011, the current Board is expected to look for further opportunities to expand the reach and impact of the Act for the benefit of employees.  For instance, it may very well revisit the right of an employee to request a representative to be present for a disciplinary meeting even if the employee is not represented by a union.  The critical question of whether supervisors are covered by the Act and therefore eligible to join a union along with the employees they supervise may also come before the Board for reconsideration.

    Given the expansive and aggressive view of the current Board, private-sector employers should keep a close watch on the Board’s actions while it maintains its current Democratic majority.  In the meantime, they should also assume that their employees' actions might be considered protected concerted activity under the Act and subject to the Board's increasingly public enforcement actions.