The National Labor Relations Act (NLRA), enacted in 1935, regulates the relationships among employees, organized labor, and management. In fact, the Act is sometimes referred to as the Magna Carta of organized labor. Perhaps this is why, even employers who are familiar with the Act do not know that it applies to employee “concerted activity” in situations where no union is involved. In fact, the National Relations Board, the agency charged with enforcement of the Act, has referred to an employee’s right to engage in concerted activity as “one of the best kept secrets” of the National Labor Relations Act.”
Specifically, Section 7 of the NLRA provides, in relevant part, “Employees shall have the right to self-organization, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Breaking this down, generally, an activity is protected if it meets the following criteria:
- Concerted activity – The activity must involve two or more employees acting together. This can be satisfied, however, where a single employee speaks or acts on behalf of others, by, for example, stating to management that several other employees agree with his or her complaint.
- Mutual aid or protection – The activity must address something more than a personal gripe. Rather, the employee taking action must seek an improvement that will benefit more than himself or herself.
- Lawful activity – An activity may lose its protection if it would subject the employee to civil liability, or is reckless or malicious, such as revealing trade secrets or sabotaging equipment.
For example, in one case, 13 workers ceased work on a concrete foundation to seek shelter from a thunderstorm, and refused an order to return to work, citing safety concerns due to exposed electrical cables at the site. The employer fired all of them on the spot. The National Labor Relations Board investigated, and the employer eventually had to pay $50,000 in back wages. The bottom line is that employers must not punish employees for bringing complaints to their attention.