Labor Law Protection For Non-Union Employees
By: RICHARD A. ROSS
August 1998
This article is a continuation of a series of articles we have published from time to time regarding protection of non-union employees under the National Labor Relations Act (NLRA). Recently, the United States Supreme Court denied review to a Sixth Circuit Court of Appeals case involving a novel application of "protected-concerted activity."
As previously discussed, the NLRA prohibits employers from discharging or otherwise discriminating against employees who act on behalf of themselves and other employees (concerted activity), in connection with a term, condition or privilege of employment (protected activity).
In the recent Sixth Circuit case, Compuware Corp. v. NLRB, the Supreme Court left standing a decision which upheld the National Labor Relations Board (NLRB) determination that even though the individual did not act on behalf of others and had no authority to represent them, the employee had "consulted" with other employees before threatening to speak out about long hours, stress and last minute changes to work-related materials. The NLRB and the Sixth Circuit Court of Appeals found that because the employee had consulted with other employees before raising the work-related issues, it was protected concerted activity and ordered his reinstatement with full backpay.
The decision means that if an employer has knowledge that an individual employee
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consulted other employees,
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was acting on behalf of other employees, or
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was acting in concert with other employees concerning any terms or conditions of employment, disciplining the employee for such conduct may violate the NLRA.
Before taking any adverse employment action, we strongly recommend consulting with a labor attorney.