Your Rights as an Employee – The Concerted Activity Rule Part 1

Employers must use considerable caution to ensure employee rights at work when disciplining or terminating an employee for employment-related speech. A recent survey commissioned by CBS News found that only forty-five percent of Americans were satisfied with their working conditions, a modern-day low. Employers have little legal obligation to improve working conditions. And, employers can do little to stop employees from complaining about, or talking about, the working conditions at their jobs.

The genesis of this rule is the “concerted activity” clause in the National Labor Relations Act, signed into law by President Franklin Roosevelt over 78 years ago. Initially intended to protect employees who were working together to establish unions in their workplaces, this clause has been expanded to encompass a broad array of employee communications regarding working conditions, including those not involving union activity and conversations made by just one employee to a boss.

Section 7 of the National Labor Relations Act guarantees an employee the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” An employer may not discipline or terminate an employee who engages in conduct that falls within this provision. Not surprisingly, these relatively simple terms have generated decades of litigation. What constitutes “concerted” activity? What does “mutual aid or protection” mean? Courts have given employees considerable latitude in defining these terms. Among other things, Courts have held that a communication made by a single employee may constitute “concerted action,” so long as it was intended to address the “mutual aid or protection” of other employees. Moreover, what constitutes a working condition is also construed broadly.

A recent case out of Las Vegas illustrates these principles. The employer, Medco Health Solutions of Las Vegas, instituted an employee incentive program called “WOW,” under which the company selected one employee each week for recognition of his or her achievements. The recognized employee would then be memorialized on the company’s “Wall of WOW,” including a photo and brief description. This “Wall of WOW” was featured in company promotional materials, as well as in customer tours of the company’s facilities.

Not all employees were enamored with the program, however. One employee, Michael, wore a t-shirt to work one day, featuring a union logo on the front and proclaiming on the back that “I don’t need a WOW to do my job!” The employee picked a bad day to wear the t-shirt. Clients were touring the facility that day. Accordingly, Medco management told Michael to remove his shirt or be terminated. He filed a grievance, through the union, with the National Labor Relations Board.

The case wound its way through the federal administrative agency and ultimately to the District of Columbia Court of Appeals. There, the federal appellate court rejected many of the employer’s arguments that Michael’s conduct was not protected under section 7. First, Medco argued that he acted “alone,” not in “concert” with other employees. The Court disagreed, noting that protected conduct includes communications “where individual employees seek to initiate or to induce or to prepare for group action.” Medco then argued that the WOW program was not really a “term or condition of employment,” as there were no monetary incentives attached to the program, nor was any discipline imposed on anyone who did not receive a “WOW” award. Again, the Court disagreed, noting that any program intended to increase productivity fell within a term or condition of employment.

Another example of protected activity under Section 7 comes from Blue Circle Cement in Tulsa, Oklahoma. Stephen worked there and was also an ardent environmentalist. In fact, he was the local union’s “environmental” officer and a founder of a non-profit organization, Earth Concerns of Oklahoma (“ECO”). Blue Circle applied for a license to burn hazardous waste to fuel its operations, potentially releasing heavy metals into the atmosphere. Stephen opposed this. He found a Greenpeace pamphlet discussing the environmental issues relating to releasing heavy metals into the environment and photocopied the pamphlet on the company’s copy machine for distribution “to provide to persons who had no direct connection with Blue Circle.” After a plant manager discovered Stephen using the company’s copy machine for this purpose, the company terminated Stephen.

Blue Circle claimed that Stephen’s actions were not “concerted activity” on behalf of other employees, but “personal activity” in support of ECO, his non-profit environmental action committee. The United States Court of Appeal for the Fifth Circuit, however, upheld that National Labor Relations Board’s finding that Stephen was, in fact, engaging in “concerted activity” in using the company machine to copy the fliers and, therefore, that he was wrongfully terminated. The Union, the Court observed, opposed the company’s plan to burn hazardous waste. As part of its opposition, the union enlisted support from the local community beyond its membership. Stephen’s efforts, even on behalf of his personal non-profit, “were intimately connected to, and derived from, the Union’s broad-based strategic efforts.” The company should not have fired Stephen.

Employers must use extreme caution when disciplining or terminating employees who do or say anything that could be construed as addressing terms or conditions of employment. Stay tuned to our next blog, Your Rights as an Employee – The Concerted Activity Rule Part 2, in which we will discuss where employers can draw the line when the communications or conduct of employees impacts the employer’s customers.