Employers commonly ignore the National Labor Relations Act (NLRA), wrongly thinking that it protects only unionized employees. To the contrary, an employer taking adverse action against a non-union employee, or adopting a policy that the National Labor Relations Board finds unlawful under the NLRA, may subject the employer to serious consequences.
The NLRA: Sections 7 & 8(a)(1)
Section 7 of the NLRA states, in part, that “Employees shall have the right to … bargain collectively through representatives of their choosing … and to engage in other concerted activities for the purpose of … other mutual aid or protection ….” Section 8(a)(1) makes it an “unfair labor practice” for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”
These sections are not limited to unionized employees. the board has broad discretion to order remedies such as reinstatement, back pay and lost benefits, reformation of company policies, as well as requiring postings that inform employees of the employer’s violations of federal labor law.
Profanity and Aggression
In Plaza Auto Center, Inc. and Nick Aguirre, a used car salesman complained to other employees over a three-month period about company policy as to breaks, restroom facilities and compensation.
In a meeting attended by two other employees, the employee’s supervisor told him that he was “talking a lot of negative stuff,” asking too many questions and needed to follow company policy. When the supervisor informed him that he could leave if he didn’t “trust” company policy, the employee responded by calling his supervisor a “fucking motherfucker,” “fucking crook” and an “asshole.” the employee also told his supervisor that he would “regret it” if he was fired. His supervisor fired him.
The board found that the employer violated Section 8(a)(1) by discharging the employee. Despite the employee’s “obscene,” “insubordinate,” and “personally denigrating remarks,” his complaints to other employees and to his employer constituted protected, concerted activity under Section 7. the board ordered that the employer offer to reinstate the employee, in addition to payment of back wages.
In Triple Play Sports Bar and Grille, a former employee posted a status update on Facebook complaining that the employer had not properly withheld taxes from her paychecks. She wrote, among other things, that she would be “calling the labor board to look into it” because the employer allegedly owed her money. A current employee, Vincent Spinella, “Liked” her status. the Facebook discussion continued, involving brief exchanges between current employees, customers and former employees of the employer. the former employee added that the owner of the restaurant is “such a shady little man,” and probably “pocketed it from all of our paychecks.” A current employee, Jillian Sanzone, remarked, “I owe too. Such an asshole.”
Shortly thereafter, management fired Spinella and Sanzone. Management told Spinella that his “Like” meant that he supported the other commenters and informed Sanzone that she wasn’t “loyal enough” based on her single Facebook comment.
The board concluded that Spinella’s and Sanzone’s minimal participation in the Facebook discussion constituted protected, “concerted” activity under Section 7 because it involved current employees and was part of an ongoing discussion about how the employer was calculating employees’ tax withholding. the board ordered the employer to offer reinstatement to bothemployees and award lost wages and other benefits, among other things.
What Should Employers Do?
Before terminating or taking other adverse action, an employer must consider if their decision might be based on “concerted” activity by the employee engaged in for “mutual aid or protection.” If the answer is yes, or if you aren’t sure, you should consult with counsel. It’s not just an award of back pay that should concern you. If the employee wins a Section 7 case and the board orders reinstatement, you may need to manage an employee who is likely to sue you again for retaliation or discrimination if you take adverse action later on.
In addition, seek counsel to review your employee handbook and other policies to evaluate the risk that they may be construed to prohibit protected, concerted activity. In recent years, the board has invalidated policies that: (1) prohibit employees from using the employer’s logo “in any manner;” (2) require employees to identify themselves when posting comments on social media about the employer; (3) “direct” employees not to discuss HR investigations with co-workers; (4) require that employees represent the employer “in the community in a positive and professional manner at every opportunity;” and (5) prevent employees from using email for non-work-related purposes.
Remember that the board can do more than simply invalidate a rule. It can order employers to admit to their employees that they have engaged in federal law violations and require postings that advise employees of their rights to unionize and engage in other protected activity, which may cause further problems down the road. Daniel Ho