Protected concerted activity under NLRA Section 7 – Now employees can act in a concerted fashion – by themselves!
Section 7 of the National Labor Relations Act (the Act) guarantees, among other things, that employees have the right to engage in “concerted activity” for collective bargaining and other mutual aid or protection.
Historically, “protected concerted activity” was activity by two or more employees acting together. A lone-wolf employee activist, advocating on his own behalf, would not seem to have protection under the Act.
However, on August 25, 2023, the National Labor Relations Board (the Board) extended the scope of “protected concerted activity” by holding in Miller Plastic Products, Inc., (372 NLRB No. 134) that an individual employee can invoke the protections of Section 7 if later activities show the employee is advocating on behalf of other employees.
In Miller Plastic Products, an employee raised concerns about the company’s Covid-19 protocols and argued that the company should be shut down during the pandemic. The company discharged the employee for, among other things, raising these concerns.
The Board found that there was no evidence of group or concerted activity at the time the employee voiced his complaints at a company meeting. However, the employee met later with employees regarding his safety concerns. According to the Board, that was enough to bring his previous actions within the protections of Section 7 and invalidate the disciplinary action under Section 8(a)(1). The Board announced that it would use a “totality of the circumstances” test on a case-by-case basis to determine whether employee activity is protected by the Act.
On August 26, 2023, the Board opined in American Federation for Children, Inc. (372 NLRB No. 137) that even working to improve the wages and working conditions of non-employees can be within the scope of Section 7 protection.
In that case, an employee lobbied for the rehire of a person who was previously a coworker and had re-applied for employment. The Board not only found that the applicant qualified as an ”employee” under Section 7 – it also reversed a previous Board case holding that advocacy for a group of unpaid, non-employee interns was not protected. (Amnesty International of the USA, Inc., 368 NLRB No. 112 (2019))
Each company, with the help of their Human Resources teams and legal counsel, will need to decide whether employee actions are “protected concerted activity” and therefore protected by Section 7 of the Act.
In the past, a two-part analysis under the Act would be properly applied to employee statements and acts: 1) Does employee activity involve mutual aid or protection as applied to wages, hours and other working conditions; and 2) If so, are two or more employees engaged in the activity.
But these two recent Board decisions suggest that employers would be wise to take caution if part one of that analysis is answered affirmatively and consider extending protection to the actions involved. Who knows what subsequent group action involving employees or non-employees might follow that would invoke Section 7 protections.
As the Board continues to expand the scope and reach of the Act through rule-making and case law, employers need to make sure their management teams have the knowledge to comply with new interpretations and requirements. Please visit our Services page and see how MARC can provide help in managing issues like these in your organization.
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