CPA: Think “Concerted Protected Activity,” Not “Accountant”

April 10, 2016

Topics: Unions and the NLRB

If your U.S. company does not have a unionized workforce, you may think that Section 7 of the National Labor Relations Act (“NLRA”) has nothing to do with you.  Guess again.  Section 7 protects the rights of all employees (unionized or not) to engage in what is called “concerted protected activity.”  And that probably means a lot more than you might think.

Let’s start with the words:  “Concerted” means, among other things, “performed in unison,” as in “they made a concerted effort to make her feel welcome.” (Courtesy of  “Concerted” is collaborative, communal, collective, joint.  In other words, it is people working or acting together.  However, while you may think an employee cannot engage in concerted activity on his or her own—guess again.  “I want a raise” is not concerted activity.  But, “I think we all should get a raise,” probably is.

“Protected” refers to actions protected by the NLRA.  To clarify that further, let’s look at what Section 7 actually says about that:

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 . . . .

29 U.S.C. § 157.  In other words, it basically protects the rights of employees to unionize.  However, when your workforce is not unionized (or undergoing a union election campaign or other union activity), the portion of this paragraph that applies to you is that this federal law protects employees’ rights to “engage in other concerted activities for the purpose of . . . other mutual aid or protection.”  It thus protects their right to have an “employees-only Facebook page” and to say whatever they want about the company and management.  It protects their rights to discuss their salaries (yes, policies prohibiting employee discussions of compensation violate the NLRA).  And, it protects their right to complain publically (like on YouTube) or to government agencies about what they think the company is doing wrong—without having to talk to the company first.  By “protecting” these rights it means that employees cannot be disciplined, discharged or otherwise retaliated against for exercising these rights.

What are companies to do?  The short answer—keep your employees happy.  But, you are probably thinking, employees always find something to gripe about.  Well—start with not thinking of employees as “them” and managers as “us.”  You are one company and should all be working towards one goal of delivering the best products and/or services the company can provide.  What can be done with your employee culture so that employees are engaged in the process?  And, certainly, don’t give employees serious reasons to complain.  In other words, don’t do anything illegal.

The U.S. National Labor Relations Board (“NLRB”) which enforces the NLRA recently launched a new website that describes protected concerted activities, and gives nation-wide examples where the NLRB stepped in on behalf of the non-union employees.  In one example, immigrant construction employees working at a former Superfund site were concerned about soil contamination and claimed they had not been properly trained, as required, in toxic material handling despite being required to wear badges indicating receipt of such training.  The employees made a YouTube video voicing their concerns, and were subsequently fired.  A charge was filed with the NLRA.  While it was pending, the employer threatened remaining employees, warning them not to talk about working conditions with outsiders.

As you can imagine, the NLRB’s regional director did not take kindly to the company’s violations of Section 7, finding that the employees had engaged in concerted protected activity by posting the YouTube video, and that the employees were improperly retaliated against when they were fired.  But, underlying this, it appears that the employer was violating other laws with regard to construction on Superfund sites, and employee training regarding toxic materials. No wonder it didn’t want any employees talking to outsiders.  If the employer had been handling this situation correctly from the start, it likely would not have gotten into trouble with the NLRB.  In other words, there would have been nothing for the employees to have complained about.

Employers would be wise to conduct internal compliance audits to ensure that you are following the myriad of U.S. laws that are going to apply to your company—and to take internal employee complaints seriously, whatever they may be.  Otherwise, in line behind the DOL, OSHA or other government agencies, you may find a caller from the NLRB.