HR Management & Compliance

New NLRB website highlights “protected concerted activity”

by Tammy Binford

The National Labor Relations Board (NLRB) is continuing efforts to broaden its impact on the workforce with the launch of a webpage aimed at communicating to workers how they can use the law in disputes with their employers.

The webpage is the latest of several recent NLRB moves that many employers find alarming. In recent months, it has tried to require most employers to post a notice of worker rights ensured by the National Labor Relations Act (NLRA), and it has tried to shorten the process required to hold union elections. In addition, the Board has come out with information on when employee comments in social media constitute activity protected under the law.

The NLRA includes language ensuring that workers — both union and nonunion — can engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Information on the new webpage relates accounts of recent cases involving that protected concerted activity.

The page is another sign of the NLRB “pushing the envelope” on its authority, according to Kevin C. McCormick, a partner with Whiteford, Taylor & Preston in Baltimore, Maryland. “It’s another example of how aggressive the Board has become in trying to get its message out and enforce its version of the law.”

The new webpage follows the as-yet unsuccessful poster requirement aimed at informing workers of their rights under the NLRA. Earlier this year, the NLRB tried to require most employers, both union and nonunion, to prominently post a notice of worker rights. The poster requirement is on hold after court rulings in April.

McCormick says the webpage is “kind of like a modified version of the notice that the court said they didn’t have the right to put up.” The webpage provides the same information as the notice the NLRB tried to require, but instead of having it posted on a workplace bulletin board or on a company intranet, it is on the Internet. “Now they put this up, and anybody Googling can find it,” he says.

The NLRB lately has taken a stance that goes beyond traditional labor union issues, McCormick says, a stance that is telling employers “the full weight of the U.S. government is on you.” Most employers think that if they are nonunion, they don’t have to worry about the NLRB, he says, but those days are gone. He points out that almost all of the social media cases the Board has dealt with are from nonunion employers.

“The bottom line is, it’s the Board trying to increase its presence in the workplace,” McCormick says.

Visitors to the webpage can click points on a map to read about cases that have come to the NLRB’s attention. Some of the highlighted cases include one in which a paramedic was fired after posting work-related grievances on Facebook and one in which poultry workers were fired after discussing their grievances with a newspaper reporter.

McCormick says many cases the NLRB has taken on recently are more like “individual gripes” rather than complaints that affect all or most of an employer’s workers.

Besides describing cases, the webpage provides a list of questions and answers explaining what constitutes protected concerted activity. The page explains that for activity to be “concerted,” it generally requires that two or more employees act together to improve wages or working conditions, although the action can be of a single employee if he involves coworkers before acting or acts on behalf of others.

Protected concerted activity also must benefit more than just the employee taking action. In addition, to be protected, activity may not be reckless or malicious, such as sabotaging equipment or threatening violence.

“A right only has value when people know it exists,” said NLRB Chairman Mark Gaston Pearce. “We think the right to engage in protected concerted activity is one of the best-kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.”

Kevin McCormick is the author of Mastering HR Report: Labor and Organizing  and is an editor of Maryland Employment Law Letter, one of the 50 state Employment Law Letters published by BLR. McCormick is also a contributor to 50 Employment Laws in 50 States.