Stan, a supervisor on the manufacturing floor overhears two employee’s discussing the “small” raises they were getting when the company profits looked like they were growing. The employees discussed the fact that they were getting paid less than the employees at the shop down the street. Stan goes into the owner’s office and reports the conversation he overheard. The business owner tells Stan to fire the two trouble makers, and make sure that the message to the other 9 employees is clear. Discussion about compensation among the employees is prohibited and any employee caught doing so will be terminated.
The business owner, still mad, goes to lunch with a friend and retells the events of the morning calling his “former” employees ungrateful and troublemakers. The owner tells his friend that he wished that he could sue “those guys” to teach employees that their compensation is private and not a topic of discussion in the workplace.
His friend says “you should hope they don’t sue you.” The owner says “how, I didn’t violate anything, they did!” Imagine the owner’s surprise when he finds out that the National Labor Relations Board (NLRB) has accepted a complaint on the above issue. The owner goes to an attorney and asks “how can they do that? I am not a union shop. In fact, a few years ago the employees determined that they did not want a union.”
The attorney then teaches the business owner a lesson every (and I do mean EVERY) employer should learn. Section 7 of the National Labor Relations Act (NLRA) applies to all employees, whether there is a union or not. Violating an employee’s Section 7 rights is a serious mistake. Some examples:
· An employer fired a salesman for being an “outspoken critic” against special two-hour meetings which sales personnel were required to attend without compensation before the store opened. The employee was awarded reinstatement with full back pay plus interest. NLRB v. Henry Colder Co., 907 F2d 765 (7th Cir 1990).
· An employer who fired two employees who composed a letter protesting change in the method of compensation committed unfair labor practice. The employees were awarded back pay with interest, plus reinstatement. Westmont Plaza, 298 NLRB 401 (1990).
· An employer who fired employees who mailed a letter to the employer’s parent company complaining of working conditions and bonuses, due in part to the employer’s president requiring employees to spend large amounts of time on the president’s personal projects committed an unfair labor practice. The employees were entitled to reinstatement, and back pay plus interest. NLRB v. Oakes Machine Corp., 897 F2d 84 (2nd Cir 1990).
· Discharging employees who gave affidavits to a sheriff stating that the employer’s vice-president had embezzled funds from the employer was a violation of the NLRA. The employees were engaged in protected activity and awarded reinstatement and back pay with interest. Squier Distributing v. Teamsters Local 7, 801 F2d 238 (6th Cir 1986).
· An employee who objected at an employee meeting to the supervisor’s lecture about the volume of radio headsets and received a written warning was engaged in protected activity; her discharge was an unfair labor practice. The employee was awarded reinstatement, plus back pay with interest. Rockwell International v. NLRB, 814 F2d 1530 (11th Cir 1987).
· A restaurant owner/manager’s termination of an employee who complained about the employer’s tip pool system violated the NLRA. The employee was awarded reinstatement, and back pay plus interest. Showcase, Inc., 277 NLRB 1444 (1986).
· The employer committed an unfair labor practice when it discharged an employee after she and another employee told a third employee of their perception that the employer’s refusal to hire that employee’s daughter was unlawful race discrimination. The employee was engaged in protected activity and was awarded back pay with interest, and reinstatement with no loss of seniority or benefits. Dearborn Big Boy No. 3, 328 NLRB No. 92 (1999).
How do you know when you might be interfering in your employees’ protected rights? Look at these questions
1. Is there concerted activity? Were two or more employees acting together; or was one employee acting on the authority of other employees.
2. Is the activity protected—i.e., engaged in for employees’ “mutual aid or protection?”
3. Is the employer’s adverse employment action motivated by the employees protected concerted activity? Did the employer know of the activity? Was employer motivated to act by it?
If you answer yes to any question, then you may become liable under the NLRA.
For more information on this subject contact a professional who can review your issues and protect you from become an example like those above.
Glenn Brown is the Co-Founder and Principal of the Kansas City based HR consultant firm, G & J Consultants, LLC. In addition to having directed the HR Department of a health care services company, Glenn is an attorney with 15 years experience assisting businesses of all sizes and industries in complying with employment and labor legal issues. G & J Consultants specializes in providing small and medium sized businesses with traditional HR services as well as compliance with employment laws and regulations.
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