Most employers are aware that Title VII of the Civil Rights Act protects individuals from harassment and discrimination, and further protects them from filing claims alleging such harassment or discrimination. However, many employers are not aware that Section 7 of the National Labor Relations Act (NLRA) also protects employees who attempt to garner support for a potential claim related to employment.
To be protected under Section 7 of the NLRA, an employee’s conduct must be both “concerted” and engaged in for the purpose of “mutual aid or protection.”
Recently, a National Labor Relations Board panel found that an employee’s solicitation of her co-workers for assistance with her possible sexual harassment claim fell within the protection of Section 7, in spite of the fact that the employee did not intend to pursue a joint complaint or include others in her complaint. Fresh & Easy Neighborhood Market, Case No. 28-CA-064411 (August 11, 2014).
Margaret Elias worked as a grocery store cashier. In August 2011, Elias asked her supervisor whether she could participate in certain on-the-job training, known as “TIPS.” Elias was told to write a note on the whiteboard in the breakroom to remind the supervisor of her request. She did so, only to find that on the following day, someone had changed the word “TIPS” to “TITS,” and had added an unpleasant illustration to the note, as well.
Because employees were not permitted to carry cameras, Elias copied the whiteboard picture and message onto a piece of paper, which she then asked three of her fellow employees to sign so that she could file a sexual harassment complaint. All three did so.
Once management became aware of the whiteboard issue, its Employee Relations Manager was directed to investigate the incident. During that investigation, Elias was questioned as to why she obtained signatures from the three co-workers, and was asked not to obtain further statements, so that the incident could be fully investigated by the company.
Upon completion of the investigation, the company concluded that the whiteboard alterations were inappropriate. The individual who made the alterations was disciplined, and Elias was told of the decision and was informed that she would be protected against retaliation.
Subsequently, Elias filed an Unfair Labor Practice (ULP) charge, alleging: (1) that the company handbook’s confidentiality/non-solicitation policy was overly broad to the extent that it could be viewed as restricting Elias’ ability to ask others to support her potential claim of sexual harassment; and (2) that the company unlawfully tried to restrict Elias’ actions further when it instructed her not to obtain additional statements from other employees while the investigation was pending.
Although an Administrative Law Judge determined that neither of Elias’ claims were supportable, a panel of National Labor Relations Board members reversed the decision as to the first claim, finding that Elias’ actions constituted “concerted” activity taken for “mutual aid or protection” and, therefore, was protected under Section 7 of the NLRB.
In its analysis of Elias’ actions, the Board defined both elements of a Section 7 claim. It explained that “concertedness” is “not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed.” That is, the solicited employees do not have to join that individual’s cause, or even agree with the soliciting employee, in order for the activity to be concerted under the NLRA. Therefore, under the rationale used by the Board, a request to a coworker to act as a witness or to provide support for a claim related to an individual’s employment may be protected concerted activity, and restriction of that activity – or a policy perceived to restrict that activity – could subject an employer to legal liability.
The Board then went on to discuss the concept of “mutual aid or protection” and determined that even when an employee takes a concerted action that ultimately may benefit her more than others, or does not make explicit the mutual interests shared between her and other employees, her action still may be for mutual protection. In enacting Section 7, Congress “created a framework for employees to ‘band together’ in solidarity to address their terms and conditions of employment with their employer.” By asking for assistance from other employees to raise issues to management, an employee is – according to the Board – “requesting that [her] coworkers exercise vigilance against the employer’s perceived unjust practices,” which results in the mutuality of interest sufficient to trigger Section 7 protection.
The fact that two of the 5-member panel dissented from this decision indicates that the rationales being used in these recent cases is beginning to cause concern, even among Board members themselves.
Employers should be vigilant in reviewing employee complaints and should look not only at the substantive (harassment, discrimination, wrongful termination) claim, but at the method by which the complaint is being made, to assure that no artificial barriers are being put in the way of concerted activity that can be argued to have been taken for the purpose of mutual aid or protection of employees.