Many employers believe that labor rights under the National Labor Relations Act (“NLRA”) only apply in a unionized workplace or where union organizing is taking place. However, that is not the case. All employees, union and non-union, are protected under the NLRA.
Protected Concerted Activities
Section 7 of the NLRA provides in part that all non-supervisory employees have the right to “form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” For non-union entities, the key protection is to engage in concerted activities for mutual aid or protection. This is referred to as “protected concerted activities” (PCA).
A classic example of PCA in a non-union workforce would be where a group of employees (concerted activity) meet with the boss demanding the right to work remotely (mutual aid and protection). If the boss retaliates against the employees, he/she would be in violation of Section 8(a)(1) of the NLRA for restraining employees in the exercise of their right to engage in protected concerted activities.
Normally, the term “concerted” implies a group action, such as a group of employees presenting the employer with a grievance over terms and conditions of employment. However, recent NLRB cases have found that individual employees could also be engaged in PCA under the right circumstances. In a recent case out of the 3rd Circuit, the Court affirmed an NLRB finding that an individual complaining about the employer’s Covid 19 response during a staff meeting constituted PCA even though he did not claim to be speaking on behalf of his co-workers. The Court ruled that substantial evidence supported the Board’s determination that such PCA by a single employee was a motivating factor for his termination. The Board had concluded that the employee’s conduct was concerted as his comments at the staff meeting “sought to bring group complaints to management’s attention.”¹ Even so, the Court reminded the parties that individual employee “gripes” about his own situation does not arise to PCA.
Non-Protected Concerted Activities
An example of non-protected concerted activity? Consider the situation where a group of employees in a non-union company take over the CEO’s office to pressure the company to cease doing business with Israel. This would not constitute PCA for two reasons. First, the conduct itself would not be protected since it constitutes a form of violence, which is never protected under the NLRA. Secondly, it would not constitute PCA since it does not deal with terms and conditions of employment.
In conclusion, employees are protected for engaging in concerted activities whether in a union or non-union environment. As long as the activity is for the benefit of employees and not just a gripe about one’s own issue and it seeks to address terms and conditions of employment, it will be protected and subject to remediation through the NLRB.
