By George J. Miller
In the past year the National Labor Relations Board’s Acting General Counsel, Lafe Solomon, has attracted a lot of attention in the legal and business community by issuing three memoranda describing how his office has alleged that employers have violated the rights of non-union employees by enforcing social networking policies. Taking a page from Mr. Solomon’s book, the NLRB itself has now gotten into the act. On June 19th the Board announced that it has launched a website intended to describe the rights of employees to act together for mutual aid and protection, “even if they are not in a union.” The website address is http://www.nlrb.gov/concerted-activity.
The website consists of a graphic map of the United States showing thirteen locations around the country in which it was alleged or eventually found that employers at a variety of types of non-union workplaces had violated the rights of employees under the National Labor Relations Act (“Act”). All but one of the cases involved employees being fired for engaging in activity protected by the Act, such as complaining about supervisors, working conditions, or compensation or, in one case, simply discussing wages with a co-worker in violation of an unlawful workplace policy prohibiting such discussions. In each case, the employers either settled early in the process or lost at trial. The outcome in each case was back pay for discharged employees, offers of reinstatement, and rescission of unlawful workplace policies.
In the press release announcing the new website, Board Chairman Mark Gaston Pearce is quoted as saying, “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.”
This website could well spark an increase in the number of unfair labor practice charges filed against non-union employers, particularly if the Board does not also feature cases which were found to have no merit, which it does not appear they intend to do. So it would be wise for all non-union employers to be aware that they are not beyond the reach of the Act simply because they are non-union. In particular, any workplace situation involving the possible discipline or discharge of employees should be analyzed in light of the protections afforded by the Act in order to avoid violating employees’ rights and being ordered to pay back pay and offer reinstatement to discharged employees. At the same time, employers should be aware of the kind of activity that is not protected by the Act. Unfortunately, the dividing line between the two is often not clearly marked, and a very careful judgment must be made.