Protected Concerted Activity: NLRB Enlightens Non-Union Employees of Their Section 7 Rights

25 June 2012 Labor & Employment Law Perspectives Blog

What does a Wisconsin manufacturing plant have in common with a national homebuilder in Deerfield Beech, Florida? Both are featured on the NLRB’s new Web page that describes employees’ rights under Section 7 of the National Labor Relations Act to act together for their mutual aid and protection. The NLRB’s new Web page shows an interactive map with links to descriptions about various cases involving protected concerted activity, in some cases including non-union activity, that the NLRB claims accounts for more than five percent of its recent caseload.In the Wisconsin case, a few women employees discussed concerns about a new supervisor who they later learned was a registered sex offender. They requested a meeting with human resources but were disciplined individually, with the supervisor present, for having talked about the supervisor with each other. Some were terminated, while others were demoted. The NLRB decided to issue a complaint, finding reasonable cause to believe that the employees had been unlawfully interrogated and retaliated against because of these protected activities. The employer subsequently settled the case with reinstatement plus full backpay for all employees.

Similarly, in the Florida case, an employee who believed he was improperly denied overtime pay due to a misclassification as a supervisor sought to join with others to file a collective claim for arbitration. The employer refused the request, claiming that the arbitration policy permitted only individual claims. The NLRB found this policy was illegal because it denied employees the right to engage in concerted activity. The case is currently on appeal in the federal courts.

These cases demonstrate the emphasis the NLRB is placing on Section 7 rights of employees, even in non-union settings. Section 7 states, “Employees shall have the right to self-organization, 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, and shall also have the right to refrain from any or all such activities.”

For more information about additional recent representative cases where concerted activity was found to exist under Section 7, take a look at Protected Concerted Activity — NLRB. Having a good understanding of potential concerted activity liability will help human resources managers limit liability for alleged Section 7 violations.

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