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UCOMM Ed: Concerted Activity

UCOMM Intern Rachel Cossio gives examples of what activities are protected, and what activities are not.

Rachel Cossio's picture
May 19, 2017

“Concerted activity” is the ability for employees to discuss work-related issues among co-workers and act upon those issues without the fear of being penalized by an employer. Under Federal law, most employees in the private sector are protected, even if they are not in a union. The National Labor Relations Act (NLRA) gives employees the right to come together to improve working conditions in ways that they see fit. In theory under this act, workers can address issues in the workplace with each other or a superior without being threatened, disciplined or fired for doing so. Employees can approach the situation as a group or select one person to represent and speak for the group as a whole. Employees have the right to form a union if there is not one already in place or disassemble a union that no longer has the support of the employees.

In the case of National Labor Relations Board v. Pier Sixty LLC, a server employed by a New York based catering company was fired for posting an inappropriate comment about his manager, Bob, on his Facebook page that was laced with profanity. Upon being fired, the employee brought a complaint to the National Labor Relations Board stating that he had been discharged in retaliation for his post. The initial ruling was that the firing violated the law because the employee was acting within the scope of protected activity. The catering company then appealed the decision but lost. The court recognized that the post was vulgar and borderline obscene, but the employee was expressing his opinions, which is a protected right.

In March, the NLRB stepped in to review cases of retaliation against truck drivers. The drivers were claiming that the employers, Dawn Trucking of Saint Albans, N.Y., were threatening to withhold jobs, making it hard for them to earn a living because they pushed for better working conditions and a union. In one case, the company was ordered to reinstate six of its truck drivers after being fired for voting to organize. In another case, a driver was reinstated and provided back pay for being fired after participating in protected union activity. XPO Cartage Inc. management was changing drivers’ terms and conditions of employment when they found out the drivers signed a petition in support of joining a union. Both companies are clearly violating the workers’ protected rights of concerted activity.

An example of protected concerted activity outside of a union is the right for employees to speak to one another about approaching their employer to discuss unfair situations in the workplace. If the employees believe that they are not getting paid enough or are working in unsafe conditions, they have the right to discuss those topics with each other. Other examples include distributing petitions asking for changes at work, refusing to work in unsafe conditions, and speaking to the government or media about the issues presented in the workplace. Disciplinary actions cannot be taken against those who choose to exercise these rights. These actions become unprotected if the statements being made are defamatory or obscene in any way. The statements being made must be true and relevant to the situation in question.

Concerted activity is necessary in a workplace because if workers aren’t protected, they are subject to having their first amendment rights stripped from them. If employers were to take punitive actions against workers for voicing their concerns, they would essentially be taking away the employees’ freedom of speech. If workers were never allowed to raise questions about unsafe working conditions, it could lead to undue hardship. Laborers can get injured or endure long term medical issues from working in unfit situations, which could have been avoided if they were allowed to express their concerns. The NLRA protects workers from being fired for saying or doing something that the superior may not agree with.

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