The Future is Workers’ Collective Action: Strategies for Private Sector Workers

Protected Concerted Activity – Strategic Use of NLRA Section 7

Section 7 of the National Labor Relations Act (NLRA) establishes fundamental statutory rights of employees including rights to: (1) “self-organization, to form, join, or assist labor organizations;” (2) engage in “other concerted activities for the purposes of collective bargaining; or (3) mutual aid or protection.”  It is an unfair labor practice under the NLRA for an employer “to interfere with, restrain or coerce employees” in the exercise of these guaranteed rights.  The National Labor Relations Board (NLRB) provides remedies for violations of these rights including injunctions, cease and desist orders, reinstatement, back pay and other remedies to make employees whole for losses suffered due to an employer’s unlawful conduct.

• Section 7 protected rights are not limited to joining and assisting labor organizations, but include rights to engage in other activities for mutual aid and protection.  Thus, Section 7 has been asserted to protect concerted employee activity unrelated to union organization although it may be a prelude to organizational activity.
• To be protected under Section 7, employee activity must be “concerted,” either undertaken together by two or more employees, or by one employee on behalf and under authority of others.  Protected concerted activity can include any action, demand, protest, or inquiry regarding any workplace issue, dispute, or proposed/opposed change in terms and conditions of work, including the following activities:
  • Petition the employer to make changes
  • Request the employer meet and discuss the issue with employees
  • Picket the workplace 
  • Boycott the workplace
  • Strike the workplace
  • Propose improvements in pay, conditions, policies and handbooks
  • Wear buttons and other insignia
  • Speak to other employees but not disrupt work
  • Post and distribute literature but not disrupt work
  • Contest unfair or unsafe work orders but NOT disobey a direct work order from a supervisor

Other Concerted Activities

Section 7 of the NLRA protects a broad range of concerted activity by employees engaged in for “mutual aid and protection” unrelated to union organization and activity including:

• Employee concerted activity seeking to improve working conditions through channels outside the immediate employee-employer relationship, including “resort to administrative and judicial forums” and “appeals to legislators to protect their interests as employees”  (e.g., distribution at work of a newsletter which, among other things, urged employees to oppose “right to work” legislation and criticized a presidential veto of a bill increasing the federal minimum wage)
• Complaints about working conditions to third parties, including the employer’s clients and customers
• Employee protests on behalf of nonemployees, including supervisors, can constitute protected concerted activity if there is a clear relationship between the nonemployee and employees’ terms and conditions of employment
• Individual employee action may be concerted if it seeks to initiate or induce group action
• Individual employee action that is a “logical outgrowth” of earlier protests and protected activities by other employees
• Concerted activities of employees “in support of employees of employers other than their own” 
• Individual activity undertaken by one employee on behalf of another
• Even a conversation, “although it involves only a speaker and a listener,” may constitute protected concerted activity “if it has some relation to group action in the interests of employees” 
• Employee expressions of group concerns relating to employer compliance with health and safety laws
• Employees’ disparagement of the employer or its products or services is protected if it: (1) occurs in the context of an ongoing labor dispute related to terms and conditions of employment; (2) is related to that dispute; and (3) is not egregiously disloyal, reckless, or maliciously untrue.  For example, a nurse’s statements regarding inadequate staffing levels were not disloyal, reckless or maliciously untrue and therefor constituted protected concerted activity.  Even though these statements criticized the hospital’s main product, patient care, they were not made in a manner reasonably calculated to harm the employer’s reputation and reduce its income, but were intended to pressure the employer to improve nurses’ working conditions by providing sufficient staffing to enable nurses to perform their duties effectively and safely.  On the other hand, a health care worker’s complaints about the quality of patient care were not protected because they did not relate to a labor dispute over working conditions.  
• Protected concerted activity may include “intemperate, abusive or insulting language” if the speakers believe that such rhetoric is an effective means to communicate views on an ongoing dispute related to terms and conditions of employment.
• Nursing home employees who solicited residents to sign a letter to a state representative seeking legislative hearings engaged in protected concerted activity because they “were seeking to improve working conditions through appeals to legislators.”
• A group of 77 workers were found to have engaged in protected concerted activity when they undertook a two-hour in plant work stoppage in the employee cafeteria protesting the suspension of a co-worker.  The NLRB referenced the following 10-factor analysis to weigh employees’ Section 7 rights and the property rights of the employer:  (1) the reason the employees have stopped working; (2) whether the work stoppage was peaceful; (3) whether the work stoppage interfered with production, or deprived the employer access to its property; (4) whether employees had adequate opportunity to present grievances to management; (5) whether employees were given any warning that they must leave the premises or face discharge; (6) the duration of work stoppage; (7) whether employees were represented or had an established grievance procedure; (8) whether employees remained on the premises beyond their shift; (9) whether the employees attempted to seize the employer’s property; and (10) the reason for which the employees were ultimately discharged.

Protected Concerted Activity – Employee Political Advocacy

Section 7 grants employees the right to engage in (1) “concerted” activities for     (2) the purpose of “mutual aid and protection.”  The second prong of this right “focuses on the goal of concerted activity,” that is, “whether there is a link between the activity and matters concerning the workplace or employees’ interests as employees.”  

Employee political advocacy in support of petitioning the government to change the law may constitute protected concerted activity if the subject matter of the advocacy is linked to work-related concerns, even though the subject matter of the petitioning is not explicitly or obviously connected to workplace concerns.  For example:

• A campaign consisting of filing various environmental complaints and challenging permits for a development project was protected concerted activity because the objective of the campaign was to secure a living wage for employees at non-union construction companies, which the Board considered to be a form of an area standards campaign.
• Employee testimony before a city building standards board urging application of a surety bond requirement to a labor supply firm was ruled protected concerted activity even though neither the ordinance bond requirement or testimony related to working conditions.  The Board concluded there was a nexus between this political advocacy and workplace concerns because the testimony was “designed to protect local unionized companies and, in turn, the job opportunities of their employees” by leveling the playing field between union and non-union contractors.
• An engineering employee who wrote to members of Congress on behalf of his fellow employees, opposing a competitor company’s efforts to obtain resident visas for foreign engineers, was engaged in protected concerted activity because the letter was motivated by a concern that an influx of foreign engineers would threaten U.S. engineers’ job security and therefore was for mutual aid and protection of the immediate employer’s engineers and their fellow engineers in the profession.  The Supreme Court affirmed this approach, finding that the Section 7 “mutual aid and protection” clause protects employees when they engage in concerted activities “in support of employees of employers other than their own” or seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.” 
• Letters by employees of a casino boat operator to the Coast Guard requesting that the employer be required to hire only engineers with unlimited licenses, in an effort to insure a wage floor and employee safety, were protected as “an attempt to better their terms and conditions of employment.”

Work Stoppages in Support of Political Advocacy

Political advocacy relating to employee terms and conditions of work may be within the coverage of the “mutual aid and protection” clause, but still may “be unprotected because of the means employed.”

Employees have a protected right to withhold labor from their employer in an effort to improve their terms and conditions of employment.  Section 7 rights extend to work stoppages regardless of whether a specific demand is proffered before, during, or even after strike activity, and whether or not striking employees are represented by a union.  Not all strike activity is protected.  Whether a work stoppage is protected depends, in part, on its purpose.  To obtain Section 7 protection, “employees must be withholding labor to pressure their employer to remedy a work-related complaint or grievance.”  

• Employees’ spontaneous work stoppage was found protected because having no bargaining representative and no established procedure for negotiating with the company, the employees took the most direct course to let the company know that they wanted a warmer place in which to work.
• A joint cessation of work by employees to protest perceived safety violations and inadequate health insurance coverage was ruled protected, especially where there was no bargaining representative and notwithstanding the reasonableness of the employees’ perception, the lack of advance notice to the employer of their intent to cease work, or the existence of alternative methods of solving the problems.
• Employees’ concerted refusal to work overtime found protected, the Board noting the employees were unrepresented and lacked “structured procedures to protest . . . working conditions.”
• Nurses’ concerted refusal to volunteer for overtime work was a protected strike because it was “intended to put pressure on the [employer] to change its staffing practices.”

To be lawful, strike activity must be directed to pressure an employer to take action to help remedy the underlying complaints of employees.  The targeted employer must therefore have some degree of influence over the outcome of a political dispute or economic pressure in support of that dispute to be protected.  For example:

• An employer taxicab company was found to have some control over whether a state agency would issue more taxi medallions because the employer, along with the other fifteen local taxicab companies, could influence the state agency’s decision.  Thus, a protest and refusal to pick-up passengers by taxicab drivers was a protected strike designed to “influence the influencers.”
• Employees who were discharged for participating (withholding their labor) in the “2017 Day Without Immigrants” protests involving rallies and abstaining from working, shopping and attending school in order to demonstrate the importance of immigrants to the economy and oppose Trump administration actions against immigrants were found to have engaged in protected concerted activity (Advice Memo, case settled by employer prior to NLRB enforcement action.)  Based on recent government actions and political rhetoric, the employees, who were predominantly Mexican born immigrants, were reasonably fearful of the effects of Trump’s immigration policies, including the threat to engage in workplace raids.  The evidence showed that: (1) although not formally presented with a strike notice, the employer was aware that the purpose of the protest was to improve the working conditions, and overall standing, of its predominantly immigrant workers; (2) these employees were not only unorganized, but any chance of opening a dialogue with the employer about their workplace concerns is even more difficult because of the language barrier between employees and management; (3) the employees’ best, and arguably only, option to express their complaints was to withhold their labor in support of the “Day Without Immigrants” and pressure the employer to take action to insulate its workplace from the threat of job loss resulting from work raids and deportations; and (4) the employer had a number of options that it could implement that would improve the working conditions of its employees (e.g., [a] the employer could pledge that it will neither call ICE to investigate its employees, nor use its employees’ immigration status as a vulnerability to exploit, [b] the employer could refuse to permit ICE to enter its property or search its files unless and until a lawful warrant or subpoena is produced, upon which the employer could proactively limit the search to the strict confines of that document to minimize exposure to its workforce and prevent collateral arrests, [c] the employer could serve as a conduit between its employees and immigrant or legal aid groups so that employees can learn about their rights and how to best protect themselves if confronted by ICE, or [d] the employer could publically denounce the administration’s actions and advocate for more progressive immigration policies and could designate itself a so-called “sanctuary employer.”  Thus, although the employer did not control the administration’s immigration agenda, it could take a stand with hundreds of other companies and thereby influence the administration to change course just as the Board found cab companies could influence a state agency’s determination over the issuance of taxicab medallions.