The Long Reach of the National Labor Relations Act

10 August 2015 Labor & Employment Law Perspectives Blog

Non-union employers are often under the misimpression that they are not affected by the National Labor Relations Act (NLRA) — the federal statute governing union-related issues in the private sector. A recent court decision stands as yet another reminder that this is not the case, and that non-union employers can still run afoul of the NLRA’s ever-changing requirements (and that employees and their advocates are increasingly using the NLRA to pursue claims against employers, even non-union employers).

In the recent decision, a non-union hospital: 1) terminated a nurse, allegedly because she complained on behalf of herself and other nurses about a hospital program for new nurses; 2) gave a different nurse a written warning for complaining about the treatment of the first nurse; and 3) failed to promote yet another nurse, allegedly because she and another employee urged a co-worker not to volunteer for extra work because it would set a bad precedent.

A federal appellate court, agreeing with a decision from the National Labor Relations Board (NLRB), found that all three nurses had engaged in “protected concerted activity” — activity protected by the NLRA and commonly understood to describe actions by two or more employees joining together in an effort to improve or otherwise change working conditions. The appellate court further agreed with the NLRB’s finding that the hospital’s actions were in retaliation for the protected activity, and as a result ordered that each of those actions be rescinded.

This decision is the latest in a rash of recent decisions by the NLRB, and at times the courts, which have made clear that activity protected by the NLRA exists in most any workplace – whether or not that workplace is unionized. Additionally, the NLRB continues to expand the scope and reach of what is considered protected concerted activity. As just one example, a recent NLRB decision held that activity can be “concerted” even if it involves just one employee coming forward with a workplace issue – so long as that employee merely seeks the opinions of other employees before doing so.

Employers also need to be aware that protected concerted activity is not limited to activity that takes place at the worksite. Many new cases in this area deal with workplace issues discussed by and between employees on social media or via other electronic communications which take place away from the worksite. In crafting policies around such issues as social media, offsite use of employer- or employee-owned electronic devices, and other communications between employees both in and away from the workplace, employers – unionized or not – need to be careful when placing restrictions on employee activity which is intended for the “mutual aid and protection” of two or more employees.

NLRB charges brought against a non-union employer for alleged interference with protected concerted activity can have very negative consequences. If a violation is found, NLRB remedial action will most likely involve posting of official NLRB notices promising not to engage in such behavior in the future. Other more intrusive remedies are also possible. Non-union employers who wish to remain that way are well advised to avoid that kind of attention.

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