Protected Concerted Activity – NLRB

The National Labor Relations Board, in its relentless assault on employers, has now posted their anticipated website page (please see our Archived Heads Up from 4/9/12) aimed at soliciting Unfair Labor Practice charges for alleged violations of Section 7 of the National Labor Relations Act. Please see:‐activity. The cases advertised on the NLRB’s website are compelling. The stated purpose is to communicate with employees and encourage them to exercise their rights to protection under the Act whether or not they are involved in a union organizing action.

While this is a relatively infrequent application of the law because employees are not aware of it, this will change if the NLRB is successful ingetting their “Notice to Employees” initiative revived.

It also is obscure in terms of employer awareness. Concerted activity, as well as protected concerted activity, is always tricky. Most employers do not even recognize that their employees are engaged in it.

General danger signals are, by way of example:

Two or more employees ceasing work or threatening to cease or engage in some other job action work over a term or condition of employment (TOCE); or one employee who is, or claims to be, speaking for co‐workers.

Group complaints about TOCE. Group protests over the discipline or discharge of a co‐worker. What to do/not to do:

Do seek professional and legal advice. Do not impart any adverse actions against those involved. Do attempt to get the employees back to work. If no competent professional advice is available, and they refuse to return to the job, ask the employees to clock/scan/sign out and leave the premises. If they ask if there will be any disciplinary repercussions from their behavior, a good response is, “You have chosen notto work, and I have no choice otherthan to notto pay you. And, as a non‐working employee, you need to leave the workplace, because you are not covered by our workers compensation or liability insurance.” (If the concerted activity involves RNs, the patient abandonment argument may not be an adequate defense against an Unfair Labor Practice charge. However, notice of the employees’ abandonment to the State Board of Nurses may result in disciplinary action up and including suspension or revocation of license by the nursing board depending on the circumstances.)

Employers do have the right to replace (permanently) employees who cease work due to a dispute over TOCE, and the right could be utilized if practical in this situation.

Please give us a call for a more expansive discussion of this complicated issue.

Best regards,
William R. Adams, Ph.D.
President & CEO
Adams, Nash, Haskell & Sheridan