For many employers, discussions surrounding the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB) often lead to puzzled looks. Businesses without union representation or collective bargaining agreements may assume they are beyond the NLRB’s jurisdiction. That assumption, however, is incorrect.
Consider this scenario:
You have an employee who is a habitual problem—insubordinate, constantly complaining, and accumulating a thick personnel file of infractions. He refuses assignments, gripes about his pay, and finds something to complain about no matter the circumstance. One day, you find him standing idle near a stamping machine, refusing to work. Fed up, you prepare a termination letter and approach him to deliver the news. But before you can proceed, he declares, “We’re not working on this machine anymore. It’s dangerous, and someone is going to get hurt.”
At that moment, your difficult employee has just engaged in concerted protected activity under the NLRA. His statement is considered protected speech if it aims to initiate or encourage group action regarding workplace conditions, such as safety. The key distinction? It must involve employees as a group, not just an individual complaint.
If the NLRB were to evaluate this case, it might determine that your employee was acting in concert with others to improve working conditions, specifically safety, which falls within the scope of protected activity. Firing him in response could be viewed as retaliation and interference with his right to engage in protected activity—regardless of whether he was genuinely representing other employees or acting alone under their perceived authority. The NLRA extends protections to individual employees acting on behalf of a group, even if no one else has explicitly joined in.
That said, NLRA protections are not unlimited. Employees can lose protection under the following circumstances:
- If their actions or speech are egregiously offensive, involve malicious falsehoods, or include disparagement of their employer’s products or services without connection to a labor issue.
- If their conduct involves violence, threats, or unlawful activity.
As the NLRB clarifies: “Protection can be lost by saying or doing something egregiously offensive or knowingly or maliciously false, or by publicly disparaging your employer’s products or services without relating your complaints to any labor controversy.” (NLRB)
Key Takeaway for Employers
Before taking disciplinary action against an employee—no matter how difficult they may be—pause and evaluate whether their conduct falls under concerted protected activity. Missteps in handling these situations could invite legal consequences, including claims of unfair labor practices before the NLRB. When in doubt, seek legal counsel to navigate these complexities and ensure compliance with the NLRA.
