Employment & Labor Publications

The Long Reach Of The National Labor Relations Act: Protected Concerted Activity Of Non-Union Employees

By Courtney A. George

Employers and employees sometimes assume that the National Labor Relations Act ("NLRA") only applies to union shops and union organizing activities. However, Section 7 of the NLRA also protects the 'concerted activities' of non-union employees, wholly unrelated to unions. Interfering with or otherwise restraining such activities constitutes an unfair labor practice in violation of NLRA Section 8(a)(1).

Section 7 of the NLRA guarantees employees the right 'to engage in concerted activities for mutual aid and protection.' Concerted activity is generally understood as activity for the purpose of protecting or improving working conditions. Often, concerted activity involves two or more employees acting together to achieve common goals. However, an individual employee's conduct may be 'concerted' if the purpose is to induce group action or represent common interests.

What Types Of Activities Are Protected?
Non-union employees clearly have the right to criticize management concerning terms and conditions of employment. For instance, in one recent case, NLRB v. Caval Tool Division, an individual employee who questioned the fairness of a change in policy affecting employees' break time and openly criticized management during an employee meeting was engaged in protected concerted activity because her comments were directed at an announced change in terms and conditions of employment. Disciplining the employee for her comments and for disrupting the employee meeting constituted an unfair labor practice in restraint of the employee's Section 7 rights. Similarly, in another case, an individual employee's sending of an email criticizing proposed changes in the employer's vacation policy constituted protected concerted activity because the employee was attempting to educate others about the proposal and foster support for his decision to oppose it. Therefore, the employer could not discipline the employee for sending the email.

Non-union employees also have the right to have a co-worker present during investigatory interviews employees reasonably believe are likely to result in disciplinary action. The National Labor Relations Board ("NLRB") has extended this right to non-union employees. In one case, two employees prepared memos criticizing their supervisor and suggesting that his supervision was unnecessary. Subsequently, the employees were directed to meet individually with management concerning the memos. Fearing a reprimand, one of the employees refused to attend the meeting unless accompanied by a co-worker. Based on his refusal, the employer terminated him for insubordination. Finding that Section 7 of the NLRA affords employees the opportunity to act together to prevent unjust punishment practices, the NLRB concluded that the termination violated the Act.

Notably, the right to have a co-worker present at an investigatory interview is not automatic. The employee must make an affirmative request. Absent a request, the employer does not have to inform the employee of the right or offer to have a co-worker attend. Moreover, an employer may opt to cancel the interview if the employee requests a co-worker and the employer is uncomfortable going forward with a co-worker present. In addition to these activities, non-union employees also have the right to walk off the job to protest oppressive working conditions and to discuss wages or other terms and conditions of employment. Employers should be aware that rules restricting these rights may run afoul of the NLRA.

Violations Of The NLRA Have Consequences
Where the NLRB finds that an employer has committed an unfair labor practice it may order the employer to make the employee whole. Remedies include reinstatement of a terminated or suspended employee and back-pay. Additionally, the NLRB may require an employer to post notice of the violation throughout the workplace for a period of time.

The NLRA is often overlooked in non-union settings. However, it is important for both employers and employees to remember that the Act protects the concerted activities of non-union employees. Awareness of the Act's protections will permit employers to amend policies and disciplinary measures that might otherwise result in liability. Employees will benefit from having another source of relief for adverse employment actions based on their protected concerted activities.