Introduction3

Many non-union employers are unlikely to have spent significant time considering their employees' rights under the National Labor Relations Act.⁴ Experience has shown that the majority of non-union employers believe the provisions of the National Labor Relations Act (the act) apply only to employees represented by a labor organization or who are seeking representation by a labor organization. While it is true the act applies to union-represented employees and those seeking representation, the act's protections are broader than most realize. Recent decisions by the National Labor Relations Board (the board) and federal courts remind all employers that many of the protections of the act apply equally to non-union employees.

II. Overview of the Act

Congress enacted the National Labor Relations Act under its power to regulate interstate commerce. The act was designed to govern the employer/employee bargaining and union relationship on a national level.⁵ The act was amended by the Labor Management Relations (Taft-Hartley) Act in 1947 and the Labor Management Reporting and Disclosure (Landrum-Griffen) Act in 1959. Most private employers and employees are covered by the act.⁶

III. The Extent of the Act's Protections

Section 7 of the act provides that employees⁷ have the right to join (or refrain from joining) labor organizations and to collectively bargain. Section 7 prohibits employers and unions from engaging in specified "unfair labor practices" and establishes an obligation on the part of both parties to engage in good faith collective bargaining. The act also prohibits employers from interfering with protected activities of employees.⁸

Significantly, the protection extended to employees by § 7 of the act is not limited to the right to engage in union activity or the right to engage in collective bargaining activities.⁹ The act's protections also extend to non-union workplaces where employees engage in activity that is concerted in nature and undertaken for the purpose of mutual aid or protection of fellow employees.¹⁰ However, the question of whether and to what extent the act's protections apply to non-union employees has been the subject of significant litigation. If employee activity is determined to be protected under the act, it is generally immaterial whether the employees who engaged in such activity were covered by a union contract.

The following situations are illustrative of commonly-occurring workplace scenarios where employee activities were found to be protected by the act - irrespective of the employees' union affiliation.

A. Discussions of Wages (and Policies Preventing Such Discussion)

The board has consistently held that the right to engage in protected activity encompasses the right of employees to discuss their wages. The board has consistently held that wages are considered a vital term and condition of employment.¹¹ Thus, an employee has the right under the act to engage in discussions about his or her salary, benefits and insurance. The right exists even where an employer believes those discussions are divisive to the workplace or will have a negative impact on employee morale. Enforcement of a policy prohibiting the discussion of salaries and wages violates § 7 of the act.¹² Implementation of such a policy is a violation of the act even if done to "prevent 'hurt feelings.'"¹³ A policy prohibiting employees from discussing tips (or the company's tip policy) is unlawful.¹⁴

B. Employee Meetings

Employees who ask questions in a meeting with other employees and any supervisor where terms and conditions of employment are discussed are generally considered to be engaging in protected activity.¹⁵ A single employee who raises his hand in a meeting and announces that he has "some questions on behalf of [himself] and other co-workers" is engaged in protected activity.¹⁶ An employee who protests a change in working conditions by an employer that affects all employees is also engaged in protected activity.

C. Activity By a Single Employee

An employee, acting alone, may also engage in protected activity. While it may seem counter-intuitive that a single employee's actions would be considered "concerted" as required to qualify for the act's protection, the board has consistently held that actions by single employees may still qualify for protection.

As discussed in greater detail infra, some written communications by single employees, such as a memo or e-mail, may be protected depending upon the substance of the communication. ¹⁷ Also, individual action may be protected where an individual employee seeks to initiate, induce, or "prepare for group action."¹⁸ Such individual action is protected as long as it is "engaged in with the object of initi-ating or inducing . . . group action. . . ."¹⁹

"Whistleblowing" to government agencies may be protected activity, whereas merely exercising individual rights may not be protected. For example, the filing of a workers' compensation or unemployment compensation claim is not protected activity under the act.²⁰ Conversely, filing a complaint for overtime with the U.S. Department of Labor's Wage and Hour Division is protected under the act.²¹

D. Communication to Management

Communications to management that have co-authors, or are written with the express approval of a co-worker, are more likely to be protected than communications involving only a single employee. In addition, where the communication is written to support another employee's complaint or to protest ill treatment or favored treatment of co-workers, the communication is more likely to be protected.²² An employee who asks questions only engages in protected activity if the employee is acting for the group as a whole.²³

Further, an individual's activities are protected where the individual employee solicits other employees to engage in group action, even if such solicitations are rejected.²⁴ Similarly, an individual employee's discussion with another employee about whether to inform management of potentially dangerous working conditions is protected communication.²⁵ An employee who discusses organizing or implementing a collective walkout is protected, even if the discussion was not serious, and an employer violates the act for imposing discipline on an employee for such a discussion.²⁶

In the healthcare setting, the board has been unwilling to grant employers additional leeway in disciplining an employee who speaks out, protecting, for example, an employee who accused the hospital of jeopardizing the health of mothers and babies at a hospital by changing shifts of employees.²⁷

E. Electronic Mail Communications

Electronic mail, as with other forms of communication, can be protected.²⁸ To the extent a single memo or e-mail contains an employee's complaint about terms and conditions of employment, it is protected only where it exceeds personal griping.²⁹ However, mere griping has been interpreted narrowly by the board, which has held that a single e-mail to co-workers expressing a negative view about a proposed vacation policy that resulted in an e-mail discussion about the policy constituted protected activity.³⁰

IV. Limitations of the Act

The board has sought to draw clear distinctions between individual versus concerted (and, therefore, protected) employee activities and communications. An employee's purely personal complaints or assertions to management are not "concerted" and are, therefore, not protected even if they involve working conditions that could affect others or if they are matters of common concern to other employees.³¹ The act does not immunize disruptive employees simply because they raise an issue of concern to co-workers. However, to lawfully impose discipline, the employer must demonstrate the discipline was necessary to prevent harassment or undue interference with its right to conduct business or to maintain discipline.³² The board is clear, however, that any discipline imposed must result only from unprotected conduct and must not in any way be connected to the content of a protected communication. Accordingly, where an employee voices complaints in the first person plural on behalf of other employees, the employer must take great care when imposing discipline. Any write-up of the incident and disciplinary form should make clear that it was the disruptive conduct of the employee, rather than the comments themselves, that led to the discipline.

Use of electronic mail is not protected under all circumstances. The use of an e-mail system to break into and alter messages between computer terminals in a hospital, resulting in an interruption in transmissions regarding patient care, was not protected activity.³³ E-mail messages to co-workers urging them to cease doing business with a particular company vendor are not protected.³⁴ E-mail messages that violate zero-tolerance policies are not protected when sent with reckless disregard for the truth or falsity of the purportedly factual assertions made in the e-mail.³⁵

Though the board has consistently protected employees' rights to discuss safety-related issues, this right does not fully immunize employees from violations of other work rules in all circumstances. An employee, for example, who filed 128 complaints of safety-related matters, publicly complained about the safety conditions of the buses she drove, and spoke out at board of commissioners meetings, was engaged in protected activity.³⁶ However, the board upheld her termination after finding that her subsequent use of profanity in violation of a company work rule was sufficient to permit her lawful termination.

V. Weingarten and Its Progeny

A. The Weingarten Case

In 1975, the Supreme Court held that unionized employees have the right to have a co-worker present during an investigatory interview by an employer where the employee reasonably believes discipline may result.³⁷ In 1982, the board found that non-union employees enjoyed this so-called Weingarten right.³⁸ Three years later, the board reversed course in Sears, Roebuck & Co.³⁹ and found that § 7 did not compel the presence of a representative in the interview of a non-union employee. Sears, Roebuck remained the law until 2000, when the board decided Epilepsy Foundation of North East Ohio.⁴⁰ This decision brought the board full circle, again holding that non-union employees were entitled to Weingarten rights.

In accordance with the board's holding in Epilepsy Foundation, a non-union employer desiring to conduct an investigative interview was again required to be cognizant of an employee's rights under Weingarten.⁴¹ In the event that an employee asserted this right, the employer had three options: honor the request; decline to interview the employee; or advise the employee of the right to meet with the employer without representation. However, if the employee were to refuse, the employer could inform the employee that it would not have the benefit of hearing the employee's account when deciding whether discipline should be imposed.⁴²

On June 9, 2004, the board made its fourth policy reversal and, in a 3-2 ruling, held that non-union employees do not have a right to have a co-worker present during an investigatory interview. In IBM Corp.,⁴³ the board expressly overturned Epilepsy Foundation. In accordance with this decision, non-union employees again do not have the right to insist on a co-worker's presence for an investigatory interview.

In IBM Corp., the board reasoned that analysis of the Weingarten issue is properly conducted under § 9 of the act, which is narrowly focused on the rights of union-represented employees. In so doing, the board may have set the stage for the Supreme Court to intervene yet again as it did nearly 30 years ago when it originally decided Weingarten.

While it would appear that non-union employers are now free to conduct investigatory interviews without consideration of the rights afforded employees under Weingarten, the National Labor Relations Board has shown a willingness to frequently reverse course. Thus, non-union employers should not presume that Weingarten rights will stay dormant for long.

VI. Conclusion

For many years, employers without union-represented employees presumed that the act did not apply to their workplace. However, as illustrated by the cases cited in this article, employers subject to the act ignore its protections at their peril. With the notable exception of the recent IBM Corp. decision, the board has grown increasingly comfortable expanding employees' § 7 rights and applying the act to non-union employees. Accordingly, employers are well-advised to become informed about the powerful statutory protections afforded employees, union and non-union alike, under the National Labor Relations Act.

Footnotes

¹ Brian J. Christensen (University of the Pacific, McGeorge School of Law, 1994) is currently senior corporate counsel for H & R Block in Kansas City and is a member of both The Missouri Bar and the Kansas Bar Association.

² David M. Kight (University of Louisville, Brandeis School of Law, 1996) is a director at Shughart Thomson & Kilroy, P.C. in Kansas City and is a member of the Kansas Bar Association and The Missouri Bar. He is currently a vice-chair of The Missouri Bar's Labor and Employment Law Committee. David Kight focuses his practice on management side labor law and employment litigation.

³ The authors express their appreciation to W. Terrence Kilroy, Esq. of Shughart Thomson & Kilroy P.C. for his assistance.

⁴ 29 U.S.C. §§ 141-197.

⁵ 29 U.S.C. § 151. "It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." Id.

⁶ The act covers employees of all employers whose business affects interstate commerce except the following: agricultural and domestic workers, independent contractors, employees of a parent or spouse, and supervisors. 29 U.S.C. § 152. The NLRB has established certain relatively low revenue thresholds for determination whether a business affects interstate commerce. See "Guide for Hearing Officers in NLRB Representation and Section 10(k) Proceedings," § IV, (September 2003) available at http://www.nlrb.gov/nlrb/legal/manuals/hog.asp (last visited November 3, 2004).

⁷ The act's § 7 rights are guaranteed only to "employees." Workers not included in the act's definition of empl/oyee include agricultural workers, independent contractors, supervisors and other managerial employees.

⁸ Note that the NLRB is vested with broad remedial authority including injunctive relief, reinstatement of discharged employees with or without back pay, and interest on the back pay award. 29 U.S.C. § 162(c).

⁹ N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 (1962).

¹⁰ See also in regarding Caval Tool Div., Chromalloy Gas Turbine Corp., 331 NLRB 858, 863 (2000), enfd. N.L.R.B. v. Caval Tool Div., 262 F.3d 184 (2d Cir. 2001) (board finds comments regarding break policy protected activity, noting that "the objective of 'initiating . . . or . . . inducing group action . . .' may be inferred from the context of the group meeting."); United Enviro Systems, Inc., 301 NLRB 942, 944 (1991) decision supplemental by United Enviro Systems, Inc., 314 NLRB 1130 (1994) and United Enviro Systems, Inc. 323 NLRB 83 (1997) (complaints voiced at weekly sales meeting conducted by employer's supervisors considered to be protected activity); Whittaker Corp., 289 NLRB 933, 934 (1988) (objections voiced at meeting of employees called by employer to announce change in policy found to be protected activity); Ontario Knife Co. v. N.L.R.B., 247 NLRB 1288, enfm't denied, 637 F.2d 840 (2d Cir. 1980).

¹¹ Triana Indus., 245 NLRB 1258 (1979).

¹² Labinal Inc., 340 NLRB No. 25, slip op. (2003).

¹³ Alaska Ship and Drydock, Inc., 340 NLRB No. 95, slip op. (2003).

¹⁴ Double Eagle Hotel & Casino, 341 NLRB No. 17, slip op. (2004).

¹⁵ Avery Leasing, 315 NLRB 576, 580 fn. 5 (1994); In re Bergensons Property Services, Inc., 338 NLRB No. 127 (2003).

¹⁶ Air Contact Transport, Inc., 340 NLRB No. 81, slip op. (2003); see also Neff-Perkins Co., 315 NLRB 1229, 1232 (1994) (questions relating to quality of equipment and the setting of employees' wage rate found to be of "common concern to all employees," and thereby indicative of protected activity).

¹⁷ If an employer allows employees to use its communications equipment for non-work related purposes, it may not validly prohibit employee use of communications equipment for § 7 purposes. Fleming Cos., Inc., 336 NLRB 192, 209 (2001), enf'd in part, Fleming Cos. V. N.L.R.B., 349 F.3d 968 (7th Cir. 2003).

¹⁸ Meyers Indus., 281 NLRB 882, 887 (1986), enf'd, Prill v. N.L.R.B., 835 F.2d 1481 (D.C. Cir. 1987) ("Meyers II"). A work stoppage by a single employee may be considered protected "concerned" activity by the board if the reason for the work stoppage is to bring group or collective concerns to the attention of management. See e.g. Webster's Men's Wear, 222 NLRB 1262, 1265-66 (1976).

¹⁹ Mushroom Transp. Co. v. N.L.R.B., 330 F.2d 683, 685 (3d Cir. 1964); Oakes Machine Corp., 288 NLRB 456 (1988).

²⁰ Certain state law protections may, however, apply. See e.g. § 287.780, RSMo 2000; Stephenson v. Raskas Dairy, Inc., 26 S.W.3d 209 (Mo. App. E.D. 2000).

²¹ Central Ga. Elec. Membership Corp., 269 NLRB 635 (1984); Beardon and Co., Inc. d/b/a D.A.Collins Refractories, 272 NLRB 931 (1984); Triangle Tool & Engineering, 226 NLRB 1354 (1976).

²² Churchill's Restaurant, 276 NLRB 775 (1985); Independent Stations Co., 284 NLRB 394 (1987). Employees may be protected even when "wages or benefits" are not discussed. In Bethlehem Temple Learning Ctr. Inc., 330 NLRB 1177 (2000), the board found a violation of the act where an employer terminated employees for: a) complaining in a group meeting about a non-competition agreement they were ordered to sign; and, b) meeting in the parking lot to discuss the agreement. See also Media General Operations, Inc. d/b/a Winston-Salem Journal, 341 NLRB No. 18, slip op. (2004) (board finding violation of the act for disciplining an employee who spoke up in production meeting that supervisors were engaged in favoritism).

²³ Club Monte Carlo Corp., 280 NLRB 257 (1986), enf'd, Club Monte Carlo Corp. v. N.L.R.B., 821 F.2d 354 (6th Cir. 1987) (a group discussion followed by a group decision to make a group inquiry, and implementation of the plan through an employee acting as a spokesperson sufficient to be protected).

²⁴ El Gran Combo de Puerto Rico, 284 NLRB 1115 (1987), enfd., El Gran Cambode Puerto Rico v. N.L.R.B., 853 F.2d 996 (1st Cir. 1988); Circle K Corp., 305 NLRB 932 (1991), enf'd, Circle K Corp. v. N.L.R.B., 989 F.2d 498 (6th Cir. 1993).

²⁵ Consumers Power Co., 282 NLRB 130, 131 (1986). The safety-related activity need not be joint but it must involve discussions about safety-related issues between two or more employees. Systems With Reliability, Inc., 322 NLRB 757 (1996).

²⁶ JCR Hotel, Inc., 338 NLRB No. 27 (2002), review denied, enf'd denied, 342 F.3d 837 (8th Cir. 2003).

²⁷ St. Luke's Episcopal-Presbyterian Hospitals, Inc., 331 NLRB 761 (2000). The employer was ultimately successful before the 8th Circuit in seeking review of the board's decision, though the legal analysis underpinning the 8th Circuit's decision has not been rejected by the board in later cases. See St. Luke's Episcopal-Presbyterian Hospitals, Inc. v. NLRB, 268 F. 3d 575 (8th Cir. 2001).

²⁸ See E. I. du Pont de Nemours & Co., 311 NLRB 893 (1993) (Employer committed an unfair labor practice by discriminatorily denying access to the e-mail system for distributing union literature and notices while at the same time permitting employees to use the e-mail system to communicate with their fellow employees on a large number of personal topics and concerns.)

²⁹ Richdel, Inc., 265 NLRB 467 (1982); Natural Wax Co., 251 NLRB 1064 (1980).

³⁰ Timekeeping Systems, Inc., 323 NLRB 244 (1997).

³¹ Northeastern Dye Works, 203 NLRB 1222 (1973). Goodyear Tire & Rubber Co., 269 NLRB 881 (1984). See, e.g., United Pacific Reliance Insurance, 270 NLRB 981 (1987) (employee's wage protest, promoted through memorandum distributed to all employees, was purely personal; wage policy was a matter of interest to a number of employees and one of considerable impact on employees generally, however, employee participation insufficient to establish common cause); Alex R. Thomas & Co., Inc., 333 NLRB 153 (2001) (employee's complaints regarding, inter alia, overtime and bonus policies not protected; no other employees voiced similar complaints, felt policies were unfair, or were adversely affected by policies); United Ass'n of Journeymen and Apprentices of the Plumbing and Pipefitting Indus. of the United States and Canada Local Union No. 412, AFL-CIO, 328 NLRB 1079 (1999) (employee's complaints regarding particular pension plan strictly personal; employee did not act on behalf of others, nor did any employee make common cause with her).

³² An employer need not tolerate employee misconduct that is flagrant or that renders the employee unfit for employment even where activity would otherwise be protected by § 7; see International. Bus. Machines Corp., 333 NLRB 215 (2001); Eckert Fire Protection, Inc., 332 NLRB 198 (2000).

³³ Washington Adventist Hospital, Inc., 291 NLRB 95 (1988).

³⁴ Electronic Data Systems Corp, 331 NLRB 343 (2000).

³⁵ Sprint / United Management Co., 339 NLRB 1012 (2003).

³⁶ Transit Management of Southeast Louisiana, Inc., 331 NLRB 248 (2000).

³⁷ NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).

³⁸ Materials Research Corp., 262 NRLB 1010 (1982).

³⁹ 274 NLRB 230 (1985).

⁴⁰ 331 NLRB 676 (2000), enf'd. in relevant part, Epilepsy Foundation v. N.L.R.B., 268 F.3d 1095 (D.C. Cir. 2001), cert denied 536 U.S. 904 (2002).\

⁴¹ Employers are not required to advise employees of this right, however, nor are they obligated to preemptively provide a co-worker for the meeting. Simply put, the employee must invoke the right or it is waived. Though no decision directly on point has been issued, the board has suggested that Weingarten rights may apply to an employee who is asked to take a drug test. Turner Const. Co., 339 NLRB 451 (2003).

⁴² Southwestern Bell Telephone, 251 NLRB 625 (1980). But the board has held that where an employer informs an employee of a disciplinary action and then questions the employee to seek information to bolster that decision, the employee's right to representation applies. Becker Group, Inc., 329 NLRB 103, 107 (1999).

⁴³ 341 NLRB No. 148, slip op. (2004).