By George J. Miller
The National Labor Relations Board (NLRB) is the independent federal agency established by Congress to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining agents under the National Labor Relations Act (NLRA). A recent case reminds us, however, that the NLRA protects employees engaged in certain activity in non-union workplaces, even when their activity has nothing to do with organizing or joining a union.
On Monday the NLRB announced that it had reached a settlement with the Texas Dental Association under which the Association, which represents more than 7,000 dentists in Texas, agreed to pay $900,000 (yes, a 9 and five zeros) in back pay to two former Association employees who were fired in relation to a petition complaining of poor management and unfair treatment. It seems that in 2006, 11 Association employees, using aliases, signed and delivered a petition to delegates of the Association, asking for an outside investigation of management and working conditions at the Association’s headquarters in Austin. The Association’s delegates declined to authorize an investigation, and the Association’s director then initiated an investigation that included a forensic study of office computers. One employee who had helped write the petition was fired after a fragment of it was found on his computer. A second employee, a supervisor, was fired for refusing to divulge the names of employees involved with the petition.
After a trial, an NLRB Administrative Law Judge found that the first employee was unlawfully fired for engaging in activity protected by the NLRA, and that the supervisor was fired for refusing to engage in the unlawful activity of divulging the employees’ identities. The Judge’s ruling was upheld by the NLRB, and the case then went up to the federal court of appeals for review, where it was pending when the parties settled. While the NLRB had ordered the Association to reinstate the employees as well as reimburse them for lost back pay, the two employees, sensing perhaps that they would not be warmly greeted upon their return, agreed to waive their rights to reinstatement in exchange for the monetary payment and a neutral reference.
The lesson here is that the NLRA protects employees engaged in “concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” The underlined part of the statute can trip up employers who would never dream that the NLRA even applies to them, as the Texas Dental Association learned the hard way. If two or more employees together begin voicing complaints about wages, hours, working conditions or other terms and conditions of employment (including the way management is running the business), or one employee does so on behalf of other employees, that should send up a red flag that this is possibly protected activity. In this instance it would behoove management to call legal counsel before rashly hauling off and firing or disciplining anyone for being a “troublemaker” or being “disloyal.”