Over the past few months, the National Labor Relations Board (NLRB) has been hard at work interpreting the National Labor Relations Act (NLRA) commenting on everything from social media policies to arbitration agreements. Recently, the NLRB undertook a major educational effort to educate employees about their rights under the NLRA and vowing to fight for employees’ rights by publishing a website dedicated to explaining concerted activity. Click here to visit the site. This is an effort that could have significant implications for employers.
The National Labor Relations Act (NLRA)(the Act) was first enacted in 1935 for the purpose of allowing employees to join or form a union without being subject to retaliation by employers. While its original purpose focused on unions, the NLRA actually applies to most private employers in the United States, including nonunionized employers. Employees who work for an employer covered by the Act have the right to organize a union, engage in collective bargaining through a union representative, participate in strikes, and to engage in “other concerted activities for mutual aid and protection.” Section 7 of the NLRA makes clear that an employer’s interference with these rights is a violation of the Act.
In 2010, union membership slipped to an all-time low and continued a steady decline through 2011, reaching a mere 6.9% of all private sector employees. As unions have become less prevalent, the NLRB has worked hard to position itself as still being relevant and a staunch protector of employee rights by turning its focus to “other concerted activities.” This focus became increasingly clear over the last year in several regards. First, the NLRB devoted significant effort to bringing actions against employers who reportedly curtailed an employee’s ability to engage in concerted activity. Through the myriad of cases brought before the NLRB, it set forth various examples of “other concerted activity” under Section 7. For example, the NLRB has declared that class-action arbitration waivers and various social media policies interfere with concerted activity and violate Section 7 as does the termination of an employee based on social media postings.
The NLRB also attempted to force employers to post a notice advising employees of their right to form a union or engage in other concerted activities under the NLRA. For now, the notice requirement has been stayed, pending appeal of this issue with oral arguments scheduled for September.
The NLRB obviously did not want to wait around for the outcome of the September, 2012, oral arguments to begin its education campaign. So, on June 18, 2012, it found a creative way around this problem and took yet another step towards positioning itself as the great defender of employee rights by releasing a “public a webpage (http://www.nlrb.gov/concerted-activity) that describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union.” (emphasis added). The website advises visitors
“The law we [the NLRB] enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.”
The NLRB’s Chairman, Mark Pearce, stressed the need for the website by stating “a right only has value when people know it exists. We think the right to engage in protected concerted activity is one of the best-kept secrets of the National Labor Relations Act.”
The website sets forth twelve case study examples depicting ways in which employers have violated an employee’s right to engage in concerted activity, including violations relating to social media postings. The website encourages employees to contact an NLRB regional office to discuss the facts of their case, and explains that NLRB representatives will assess whether the employee’s Section 7 rights have been violated by determining 1) is the activity concerted; 2) does the activity seek to benefit other employees; and 3) was the activity carried out in a manner that caused it to lose protection (reckless or malicious behavior).
The import of this website for employers is that more employers could find themselves subject to investigations and charges by the NLRB. The NLRA gives the NLRB the authority to represent an employee in an action against the employer. That means that the employee merely has to report the alleged violation to the NLRB, and if the NLRB finds the employer violated Section 7, it alone can bring an action against the employer. This initiative and the statement by Chairman Pearce make clear that the NLRB is on a mission to educate employees that the NLRA applies to non-unionized employers, and it is likely that we will see more of these “education” initiatives in the coming months.