Written by: Christina Harris Schwinn
Private sector employers often believe that because their workforces are not unionized that they do not have to be concerned about the National Labor Relations Board’s (“NLRB”) activities or compliance with the National Labor Relations Act (“NLRA”). Wrong. Generally speaking, a private sector employer with more than $200,000 in annual revenue is a covered employer under the NLRA.
Just because there is no current union activity occurring within your company does not mean that the NLRA is a nonissue. The NLRB is actively pursuing employers that have policies that attempt to usurp an employee’s right to participate in concerted activity under the NLRA. Put simply, concerted activity means two or more employees getting together to improve their terms and working conditions. For example, Section 7(a) of the NLRA permits employees to discuss their pay with one another even if their employer prohibits it. Section 7(a) rights under the NLRA include:
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…
Additionally, Section 7(a) gives employees the right to discuss amongst themselves all terms and conditions of their employment including wages.
Unfair Labor Practice
An employee who is disciplined for exercising Section 7(a) rights may file an unfair labor practice (“ULP”) against their employer without the assistance of a lawyer www.NLRB.gov at no cost to her.
A ULP is defined in part in Section 8(1) of the NLRA as follows:
It shall be an unfair labor practice for an employer —
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.
Upon receipt of the ULP, the NLRB will open a file and investigate the underlying facts of the ULP. If the NLRB finds that the employer, violated the NLRA, the NLRB may require such employer to amend its policy and notify employees that its policy violated the NLRA. Further, if disciplinary action was taken against that employee in violation of the NLRA and the employee lost wages or was terminated, the NLRB has the authority to require reinstatement and the payment of back pay.
Because the number of private sector unionized employees has declined, the NLRB has found other ways to help employees understand their rights under the NLRA. For example, the NLRB has launched a concerted activity website that makes information available about the ULPs across the country that the NLRB has received and it, too, now has a downloadable app for smart phones that can be downloaded onto smart phones to educate employees about their rights.
Recently, the NLRB ruled that an employer violated the NLRA when it discharged an employee for “cussing out” the employee’s supervisor? Yes, it happened. The NLRB found that the supervisor had provoked the employee’s outburst and that the employee was engaging in concerted activity. This is not an isolated case. What does this mean for employers? It could mean that an employee who is engaging in insubordinate behavior in the eyes of the employer is not guilty of misconduct and that the employer violated the NLRA if it took adverse action against the employee.
Social Media / Employee Interaction
In the past few years, the NLRB has been very active in the social media arena as many employers attempt through their social media policies to restrict what their employees may say about them. Beware. Employer policies that restrict employees from making negative comments about them in social media could be a per se violation of the NLRA. Additionally, policies that require employees to be respectful of one another are under attack by the NLRB. What happened to being able to disagree with someone in a civil, respectful manner? Is it really necessary to protect employees who choose to use foul language and scream and yell at their supervisors while engaging in concerted activity, i.e. opposing working conditions or discussing their pay with co-workers? I think not, but the NLRB disagrees.
Even though Florida is a right to work state where the general rule of thumb is that an employee can be terminated for any reason, an employer who terminates an employee because the employee exercised a protected right does so without impunity. Engaging in concerted activity under the NLRA is just one of the statutory rights that employees have under the law.
A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. Competent legal counsel should be consulted if you have questions regarding compliance with the law.
Questions regarding the content of this article may be e-mailed to Christina Harris Schwinn at firstname.lastname@example.org. Ms. Schwinn is a partner and an experienced employment and real estate attorney with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6228; Telecopier: (239) 332-2243. To view past articles written by Ms. Schwinn please visit the firm’s website at www.paveselaw.com
 Among other cuss words, the employee used the “F” word.
 Citation omitted.