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June 2012, Week 3

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NLRB launches webpage describing Protected Concerted Activity

June 18, 2012 

www.nlrb.gov

The National Labor Relations Board today made public a
webpage that describes the rights of employees to act
together for their mutual aid and protection, even if
they are not in a union.

The page, at www.nlrb.gov/concerted-activity, tells the
stories of more than a dozen recent cases involving
protected concerted activity, which can be viewed by
clicking points on a map. Among the cases: A
construction crew fired after refusing to work in the
rain near exposed electrical wires; a customer service
representative who lost her job after discussing her
wages with a coworker; an engineer at a vegetable
packing plant fired after reporting safety concerns
affecting other employees; a paramedic fired after
posting work-related grievances on Facebook; and
poultry workers fired after discussing their grievances
with a newspaper reporter.

Some cases were quickly settled after charges were
filed, while others progressed to a Board decision or
to federal appellate courts. They were selected to show
a variety of situations, but they have in common a
finding at some point in the NLRB process that the
activity that the employees undertook was protected
under federal labor law.

The right to engage in certain types of concerted
activity was written into the original 1935 National
Labor Relations Act's Section 7, which states that:
"Employees shall have 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, and shall also have the
right to refrain from any or all such activities."

That right has been upheld in numerous decisions by
appellate courts and by the U.S. Supreme Court over the
years. Non-union concerted activity accounts for more
than 5% of the agency's recent caseload.

"A right only has value when people know it exists,"
said NLRB Chairman Mark Gaston Pearce. "We think the
right to engage in protected concerted activity is one
of the best kept secrets of the National Labor
Relations Act, and more important than ever in these
difficult economic times. Our hope is that other
workers will see themselves in the cases we've selected
and understand that they do have strength in numbers."

Whether or not concerted activity is protected depends
on the facts of the case. If you have questions, please
contact an Information Officer at your nearest NLRB
Regional Office, which you can find on this page or by
calling 1-866-667-NLRB. The Information Officer will
focus on three questions:

Is the activity concerted?

Generally, this requires two or more employees acting
together to improve wages or working conditions, but
the action of a single employee may be considered
concerted if he or she involves co-workers before
acting, or acts on behalf of others.

Does it seek to benefit other employees?

Will the improvements sought - whether in pay, hours,
safety, workload, or other terms of employment -
benefit more than just the employee taking action?  Or
is the action more along the lines of a personal gripe,
which is not protected?

Is it carried out in a way that causes it to lose
protection?

Reckless or malicious behavior, such as sabotaging
equipment, threatening violence, spreading lies about a
product, or revealing trade secrets, may cause
concerted activity to lose its protection. Section 7

"Employees shall have 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, and shall also have the
right to refrain from any or all such activities."
-Sec. 7, NLRA

Examples


Hartford, Connecticut Emergency medical response
company 34-CA-012576

After a work-related incident, an employee criticized
her supervisor in a post on Facebook, which prompted
other employees to reply to the posting. The employee
was suspended the next day and later fired. The NLRB
issued a Complaint alleging the employee was unlawfully
fired for engaging in protected concerted activity when
she posted on Facebook. Prior to a hearing, the case
settled.

Dawnmarie S. was a long-term paramedic for American
Medical Response of Connecticut, Inc., an emergency
medical service provider in New Haven, Connecticut.
After a verbal disagreement with her supervisor at
work, Dawnmarie went home and posted a negative comment
about her supervisor on her private Facebook page.
Dawnmarie's post prompted replies from other employees
who were friends with Dawnmarie on Facebook.

Dawnmarie was suspended the next day and ultimately
fired. In making the decision to fire her, the company
relied, in part, on Dawnmarie's Facebook post, arguing
that Dawnmarie violated the company's internet policy
when she made criticized her supervisor online.

A charge was filed with the Hartford NLRB Regional
Office alleging Dawnmarie was unlawfully fired. The
charge also alleged the company's handbook contained
unlawful provisions which, among other things,
prohibited employees from making negative comments
about the company or supervisors.

After an investigation, the NLRB issued a Complaint
alleging Dawnmarie was unlawfully fired because she
engaged in protected concerted activity when she
criticized her supervisor on Facebook. The Complaint
also alleged that the company's handbook contained
several unlawful provisions. Prior to a hearing, the
company agreed to revise the provisions in the handbook
which were alleged to be unlawful. The company also
reached a private settlement with Dawnmarie regarding
her termination.


Santa Fe, NM Housekeeping service 28-CA-022628

When a hotel housekeeping service announced a
$2-per-hour wage cut, employees protested in letters to
managers, written with the help of a community
organization. Workers who led the effort and signed the
letters were later fired. After the NLRB issued
complaint, both employees received full backpay and
offers of reinstatement.

"This experience has taught me that I do have rights
and no one can abuse them," said Maria J., one of the
two housekeepers who filed charges after having been
fired. In a conversation with an NLRB field agent,
Maria said she and co-workers who cleaned rooms at
luxury hotels and spas felt the sudden pay cut was an
"injustice" and sought help from a local community
group, Somos un Pueblo Unido.

With the group's help, the workers composed letters to
senior management at the staffing company, asking them
to reconsider cutting the current $9.50 per hour wage
by $2. A short time later, Maria, whose signature was
prominent on the letter, was transferred to another
hotel and then fired. Her colleague and co-signer, Juan
Lopez, was interrogated and then fired as well.

Maria and Juan filed charges with the NLRB regional
office, and an investigation found reasonable cause to
believe their firings were unlawful. The Regional
Director, on behalf of the General Counsel, issued a
complaint calling for a hearing before an
administrative law judge. Prior to a trial, however,
the employer settled the case. Both workers received
full backpay and offers of reinstatement, which they
declined.

Maria, who had already moved on to another job, said
the offer gave her a sense of satisfaction. "I had
faith that we would win and that we would show the
company they could not walk all over us," she said.
She's kept in touch with her former coworkers, and
noted with disappointment that, despite her efforts,
the pay was never restored to its previous level. "But
I know that the employees are able to speak openly
about their wages," she said.

____________________________________________

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