While many of us may be aware that the National Labor Relations Act (NLRA) governs relations between unions and private workplace management, what many do not realize is that the NLRA also impacts the private nonunion workplace in a variety of ways. The National Labor Relations Board (NLRB or Board) is an independent federal agency empowered to enforce the provisions of the NLRA and to protect the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.
Entering 2012 unanswered questions existed on whether and how employers had to comply with a new National Labor Relations Board rule requiring employers to display posters in the workplace informing workers of their right to unionize. This new rule was scheduled to take effect April 30, 2012, and required that private employer display posters explaining workers’ rights to engage in protected concerted activity (the focus of this article), bargain collectively, distribute union materials, and engage in other lawful union activity without being disciplined by their employer. While businesses are concerned that having to put up the poster encourages employees to form or join unions, labor sees the posters as a means of letting workers know and understand their rights.
A lower federal court in Washington D.C. previously ruled that the NLRB can require most private nonunion businesses to put up posters telling employees they have a right to form a union. Although the court did not indicate how the NLRB can enforce the requirement, it is not entirely clear if failing put up the poster alone would automatically violate the NLRA without additional evidence of anti-union animus. The court ruled that the NLRB was reasonable in believing that many workers, especially recent immigrants, those with little formal education and those in nonunion settings may not be aware of their rights to join or form a union or engage in other forms of concerted activity protected under the NLRA.
Over the last few months, several federal district courts have reached inconsistent decisions regarding the NLRB’s authority to pass and enforce such rule. On April 17, 2012, a federal appellate court temporarily enjoined implementation and enforcement of the rule pending the outcome of the appeal and until it could consider whether the NLRB had the authority to pass the rule. In response to the pending lawsuits involving the rule the NLRB announced that until the legal issues can be resolved, the rule will be postponed and there is no deadline for the posting requirement at this time.
In 1975, the United States Supreme Court in NLRB v. Weingarten, Inc., upheld an NLRB decision that employees have a right to union representation at investigatory interviews that could lead to discipline. These rights became known as Weingarten Rights. The Supreme Court held that the affected employee must make a request for union representation before or during the interview and cannot be disciplined for making the request. Once the request is made, the employer can delay the interview until the representative arrives, cancel the meeting or offer to continue the meeting without the union representative or end the meeting. If the employer denies the employee’s request for representation and continues to question the employee, the employer has committed an unfair labor practice in violation of the NLRA.
Much less clear is the right of nonunion employees to have a co-worker present at such interviews. In 2000, the NLRB extended the Weingarten rule to the nonunion environment, holding that nonunion employees had a right to have a coworker present at an investigatory interview if the interview could lead to disciplinary action. Having a coworker present was found to constitute protected concerted activity. As of late, however, the NLRB has been inconsistent on this point, ruling at various times that Weingarten rights apply in the nonunion setting; rejecting a claim that an unrepresented employee has any rights to fellow-employee representation at an investigatory interview, and then reaffirming the absence of Weingarten rights in the nonunion setting during George W. Bush’s administration. However, the Bush-appointed Board did acknowledge that there was nothing in the Supreme Court’s Weingarten decision that precluded it from extending coverage to the nonunion workplace. Employers in the nonunion workplace should, therefore, still be aware of the Weingarten case, since the Obama appointed Board could again determine that Weingarten rights do exist in the nonunion setting.
The pervasive use of social media has led to new Board rulings in connection with protected concerted activity in the context of social media postings and communications. Again, these rulings apply equally in nonunion workplaces. In one recent case, the Board found that an employer engaged in an unfair labor practice when it fired five employees who had posted comments on Facebook regarding poor job performance previously expressed by one of their coworkers. The NLRB held that the discharged employees were engaged in protected concerted activity. In fact, the Board found that this was a textbook example of concerted activity, even though the activity that took place was online. One employee reached out to her coworkers for assistance through Facebook regarding job performance and staffing issues in anticipation of a meeting with a manager. Thus, this activity, even through the internet, constituted concerted activity, as it related to working conditions. Similarly, the Board has found that Facebook postings protesting supervisory actions can constitute protected concerted activity.
In closely connected rulings, the NLRB has also been asked to review blogging and internet posting policies of nonunion employers. The Board has found that blanket prohibitions on criticizing an employer violates the NLRA because it would prohibit employees from engaging in certain protected concerted activity.
The Board has found in other cases, however, that in order to be protected under the NLRA, this type of online activity must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him or herself. Thus, Facebook postings, for example, that simply air individual gripes would not be considered concerted.
These are the primary ways in which the NLRA can apply to the private nonunion workplace. Generally speaking, what employers should keep in mind is that whenever employees engage in concerted activity that addresses wages and/or working conditions, there is a likelihood that such behavior is protected by the NLRA.