We often get a raised eyebrow or a confused look when discussing the National Labor Relations Act (NLRA) or National Labor Relations Board (NLRB). For companies free from union activity and free from following a collective bargaining agreement, many believe they are outside the reach of the NLRB. Safe to say, they are not. Consider the following:
You have an employee who is constantly insubordinate, evidenced by a personnel file a mile high. He refuses assigned work. He complains about his pay. He complains when the sun is out. One day, you find him standing five feet away from a stamping machine refusing to work. That’s the last straw. You prepare the termination letter and approach him ready to end his employment. Then he states: “we won’t work on this machine anymore. It’s dangerous and someone could get injured.”
This employee has now engaged in “concerted protected activity” under the NLRA. The employee’s comment is protected speech under the NLRA as “concerted protected activity” if the speech had the objective of initiating or inducing group action. Or, if the purpose was to join employees together to achieve a common goal. Here, the common goal is safety. The key is employees, not just one employee.
If the NLRB was presented this fact pattern, it may determine your problem employee banded together with other employees to improve the workplace, safety and terms and conditions of employment. Further, if you fire this problem employee, you have now interfered with his right to engage in protected activity. And, you may not know whether he is acting on behalf of other workers or by himself. The NLRA protects single employees who are acting on the authority of others.
Protection under the NLRA is not absolute, and can be lost. An employee does not have the unfettered right to act as they wish because they act for the group. As the NLRB states, “you can lose protection by saying or doing something egregiously offensive or knowingly or maliciously false, or by publicly disparaging your employer’s products or services without relating your complaints to any labor controversy.” https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/concerted-activity
