§13.2 Employer Unfair Labor Practices

• Library: Labor and Employment Law: Private Sector (OSBar) (2011 Ed.)

§13.2 EMPLOYER UNFAIR LABOR PRACTICES

§13.2-1 Employer Interference with §7 Rights

Section 7 of the National Labor Relations Act (NLRA) confers on employees—union and nonunion alike—"the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" as well as "the right to refrain from any or all of such activities." 29 USC §157. Under §8(a)(1) of the NLRA, it is an unfair labor practice (ULP) for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." 29 USC §158(a)(1). However, §8(c) of the NLRA recognizes an employer's right to express "any views, argument, or opinion" without violating §8(a)(1) as long as that expression contains "no threat of reprisal or force or promise of benefit." 29 USC §158(c).

NOTE: Motive is not always an essential element of a §8(a)(1) violation. In addition, the NLRA applies regardless of whether an employer has a nonunion workplace. Nonunion employers, for instance, not infrequently run afoul of the Act by maintaining overbroad rules in their employee handbooks or manuals or disciplining employees for engaging in protected concerted activity.

The broad language of §8(a)(1) encompasses all ULPs by employers; a violation of any other subsection of §8(a) is also a violation of §8(a)(1) and is referred to as a derivative §8(a)(1) violation. In addition, there are independent violations of §8(a)(1) that violate no other provision of the statute.

§13.2-1(a) Concerted Activities

An activity by an employee or a group of employees does not qualify for protection under NLRA §7 unless it is concerted. 29 USC §157. Concerted activity is generally that which is intended for the "mutual aid or protection" of a group of employees in the workplace. 29 USC §157; see Meyers Industries, Inc., 281 NLRB 882 (1986), aff'd, 835 F2d 1481 (DC Cir 1987). when an employee is asserting rights under a collective bargaining agreement, the activity is concerted even if the employee is invoking only his or her own individual rights under the contract. NLRB v. City Disposal Systems, Inc., 465 US 822, 836-837, 104 S Ct 1505, 79 L Ed2d 839 (1984). On the other hand, when other rights (such as statutory rights) are involved, an individual employee's activity is not concerted unless it is engaged in "with or on the authority of other employees, and not solely by and on behalf of the employee himself." Meyers Industries, Inc., 281 NLRB at 885. See Oakes Mach. Corp., Subsidiary of Katy Indus., Inc., 288 NLRB 456, 456 (1988), enforced in part, enforcement denied in part on other grounds, 897 F2d 84 (2d Cir 1990) (unsigned letter to parent company of employer asking that employer's president be removed was concerted activity because it reflected discussions among employees and employer believed that letter "represented the thinking of more than one employee"). It is not necessary that an employee's coworkers appoint him or her to represent their interests for the employee's individual activities undertaken on their behalf to be concerted. NLRB v. Main St. Terrace Care Ctr., 218 F3d 531, 539 (6th Cir 2000).

NOTE: In Parexel Int'l, LLC, 356 NLRB No. 82 (Jan 28, 2011), the National Labor Relations Board (NLRB) held that the employer violated §8(a)(1) by discharging an employee before she discussed her concern about wages with her coworkers, reasoning that an employer's preemptive strike to prevent an employee from engaging in activity protected by the act is unlawful.

The NLRB and the courts have found a wide range of activities to be concerted. obvious activities include striking, picketing, honoring picket lines, filing group complaints, and filing and processing grievances. Less obvious activities include:

• Alerting a coworker of a belief that the employer refused to hire the coworker's daughter because of unlawful race discrimination, Dearborn Big Boy No. 3, Inc., 328 NLRB 705, 712 (1999);

• A nurse talking to various media about staffing levels and their relation to patient care, Valley Hosp. Med. Ctr., Inc., 351 NLRB 1250, 1254 (2007), enforced, 358 Fed Appx 783 (9th Cir 2009);

• Posting a sign and alerting the news media that a mysterious illness is afflicting workers, Martin Marietta Corp., 293 NLRB 719, 724-725 (1989);

• Distributing a letter for signature to coworkers protesting promotion of an unpopular employee, Atlantic-Pacific Constr. Co. v. NLRB, 52 F3d 260, 264 (9th Cir 1995);

• Complaining to the state, with whom the employer's clients contracted with, about working conditions, Compuware Corp. v. NLRB, 134 F3d 1285, 1290 (6th Cir 1998); and

• Refusing to install a part in an aircraft based on an understanding of Federal Aviation and Administration regulations, Springfield Air Ctr., 311 NLRB 1151, 1155 (1993).

PRACTICE TIP: When an employee complains about a benefit or policy only as it applies to that employee, the action is not concerted. If the employee makes the same complaint and mentions other employees as well, the action is concerted. Because of this small difference, employers should be extremely reluctant to discipline employees for such complaints.

§13.2-1(b) Protected Activities

To qualify for protection under NLRA §7 (29 USC §157), an activity must be not only concerted, but also protected. Sections 13.1-2(c)(1) to 13.1-2(c)(6) include examples of activities that are concerted but unprotected.

§13.2-1(b)(1) Conduct Violating Collective Bargaining Agreement

An economic strike during the term of a contract that contains a no-strike clause is concerted activity, but, because it violates the contract, it is not protected by NLRA §7 (29 USC §157). See Complete Auto Transit, Inc. v. Reis, 451 US 401, 414-415, 101 S Ct 1836, 68 L Ed2d 248 (1981); NLRB v. Sands Mfg. Co., 306 US 332, 344, 59 S Ct 508, 83 L Ed 682 (1939). A strike in protest of an employer's serious unfair labor practice, however, is sometimes protected even if a no-strike clause is in effect. Goodie Brand Packing Corp., 283 NLRB 673, 674 (1987).

§13.2-1(b)(2) Certain Conduct Violating NLRA

A union's strike, boycott, or picket directed against a secondary or neutral employer is generally not protected by NLRA §7 (29 USC §157) if the union's intent is to get the secondary employer to stop doing business with or handling the goods of the business the union has the dispute with. 29 USC §158(b)(4). However, the union practice of displaying large stationary banners in front of a secondary employer's business is not coercive, and thus does not violate the secondary boycott provisions of the Act. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 355 NLRB No. 159, at *1 (Aug 27, 2010). See also Sheet Metal Workers Int'l Ass'n, Local 15 v. NLRB, 491 F3d 429, 437-439 (DC Cir 2007) (handbilling combined with mock funeral in front of a Florida hospital lawful). A union that is not currently certified as the labor representative is also limited regarding when it can picket, cause to be picketed, or threaten to picket an employer for the purpose of getting the employer to recognize or bargain with the union. 29 USC §158(b)(7).

§13.2-1(b)(3) Illegal, Abusive, or Extreme Conduct

Illegal or abusive conduct during a strike or picketing in furtherance of the strike is not protected by NLRA §7 (29 USC §157). Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984), enforced, 765 F2d 148 (9th Cir 1985) (verbal threat by strikers is unprotected if "it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the [National Labor Relations Act (NLRA)]"); see NLRB v. City Disposal Systems, Inc., 465 US 822, 837, 104 S Ct 1505, 79 L Ed2d 839 (1984).

Conduct that is extreme, egregious, or offensive will also lose protection. United Parcel Serv., 311 NLRB 974, 974 (1993) (activity was unprotected when, to investigate complaint against himself, employee impersonated law enforcement officer). However, the statute protects what the National Labor Relations Board has sometimes called animal exuberance. Thor Power Tool Co., 148 NLRB 1379, 1386 (1964) (Brown, dissenting), enforced, 351 F2d 584 (7th Cir 1965) (employer violated the NLRA by terminating member of union's grievance committee who, during informal discussion of a grievance, referred to superintendent by objectionable term). But cf. Media Gen. Operations, Inc. v. NLRB, 560 F3d 181 (4th Cir 2009) (employer did not violate the NLRA by terminating employee for using profanity regarding his employer, which was directed to his supervisors, during work hours and in the workplace).

§13.2-1(b)(4) Disloyalty or Disparagement of Employer

Actions that demonstrate extreme disloyalty or disparagement of the employer may be outside the protection of NLRA §7 (29 USC §157). See Crystal Linen & Uniform Service, Inc., 274 NLRB 946, 950 (1985); NLRB v. Local Union No. 1229, IBEW, 346 US 464, 475-477, 74 S Ct 172, 98 L Ed 195 (1953) (distribution of handbills severely criticizing employer's product and making no reference to union or labor dispute was unprotected).

However, in Community Hospital of Roanoke Valley, Inc. v. NLRB, 538 F2d 607, 610 (4th Cir 1976), the circuit court found that a nurse's statement on a television broadcast protesting wages and staffing conditions at the hospital at which she was employed were protected, notwithstanding the hospital's insistence that it was disloyal, because it was "directly related to protected concerted activities then in progress."

In Five Star Transp., Inc., 349 NLRB 42, 44-47 (2007), enforced, 522 F3d 46 (1st Cir 2008), the National Labor Relations Board (NLRB) found unlawful a company's refusal to hire six drivers who wrote letters urging a school district not to award a contract to the company, because the drivers' letters expressed concerns about terms and...