April 19, 2017

Section 7 of the NLRA

by Bindu R. Gross

While not a comprehensive discussion, this article provides a general overview of “protected, concerted activity” as contemplated under Section 7 of the NLRA and how cases recently decided by the National Labor Relations Board illustrate the broad application of Section 7 activity with respect to social media.

Section 7 of the NLRA

Section 7 of the National Labor Relations Act provides employees with “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection . . . .” 29 U.S.C. § 157. It also provides employees with “the right to refrain from any or all such activities . . . .”

Notably, Section 7 protects both union activity and “other concerted activity for mutual aid and protection.” Stated differently, the NLRA protects employees’ exercise of their Section 7 rights independent of whether a union is involved. The NLRA applies to employee conduct so long as employees are engaged in “concerted protected activity,” i.e., activity undertaken together by two or more employees, or by one on behalf of others, “when they seek to improve terms and condition of employment or otherwise improve their lot as employees . . . .”

What Constitutes “Protected, Concerted Activity”?

The “protected, concerted activity” analysis focuses on two questions:  (i) whether the activity in question is “concerted”; and (ii) whether the activity in question is taken for “mutual aid or protection.” When both of these questions are answered in the affirmative, there is “protected, concerted activity.”

An individual’s activities are concerted only (i) if they grow out of prior group activity; (ii) when the employee acts, formally or informally, on behalf of the group; or (iii) when an employee solicits other employees to engage in group activities, even where such solicitations are rejected. 

Closely related to Section 7 of the NLRA is Section 8(a)(1) of the Act, which makes it unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7].” 29 U.S.C. § 158(a)(1). Stated differently, an employer violates Section 8(a)(1) if it maintains workplace rules that would reasonably tend to “chill employees in the exercise of their Section 7 rights.” Similarly, Section 8(a)(3) prohibits employer “discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U.S.C. §158(a)(3).

Recent Examples Of How This Applies To Social Media In The Workplace

Whether an activity retains the protection of Section 7 of the Act has recently been the subject of the National Labor Relations Board’s attention. In Pier Sixty, LLC, 362 NLRB 59 (March 31, 2015), the Board affirmed an Administrative Law Judge’s (“ALJ”) finding that the employer Pier Sixty violated Sections 8(a)(1) and (3) of the NLRA rights when it fired an employee for protected, concerted comments which were posted on his personal social media account. The employee, Hernan Perez, was a server for Pier Sixty, and was unhappy with what he interpreted as disrespectful treatment by an assistant manager. While on a work break, Perez used his personal cellphone to post a profanity-charged rant on Facebook, implicating the manager and the manager’s family, and ending, “Vote Yes for the Union!”  Two days later the bargaining unit voted in favor of union representation.

In finding that the employer violated the Act, the ALJ found (and the NLRB confirmed) that “perceived hostile and degrading treatment” from management was a driving force behind the union election. In reviewing the finding of the ALJ, the NLRB held that the employee’s statements regarding alleged mistreatment of employees and seeking redress through the oncoming union election constituted protected, concerted activity and union activity. Notably, it was found that Perez’ use of obscene language in his posting was not “qualitatively different from profanity regularly tolerated by [the employer].” Considering that setting, the NLRB held that Perez’ language in his posting did not cause him to lose his Section 7 protections.

Similarly, the United States Court of Appeals for the Second Circuit recently released a summary order and held that an employee’s “like” on Facebook can be protected by Section 7 of the Act. Three D, LLC v. NLRB, --- Fed.Appx. ----, No. 14-3284, 2015 WL 6161477 (2d Cir. Oct. 21, 2015).  In Three D, former and current employees of a sports bar and grille discovered that they owed additional state income tax. One of the former employees complained on Facebook about the alleged failure on the part of Three D’s owners to withhold the appropriate payroll taxes. Several other current and former employees as well as some customers responded angrily to the post by attaching “comments” on the original post.

Several of these angry “comments” contained profanities and defamatory statements about the restaurant and its owners. Some restaurant employees participated in the discussion on Facebook. Specifically, one “commented” on the post, and another “liked” the original post and several other comments. Upon learning of these activities, the restaurant owners discharged the employees, including those that only “liked” the posts.

The ALJ in Three D found that the restaurant’s termination of the employees violated their rights to engage in “concerted activity for the purposes of collective bargaining or other mutual aid or protection” under Section 7 of the Act. The restaurant appealed to the NLRB, which affirmed the ALJ’s decision. The restaurant then appealed the decision to the Second Circuit.

The Second Circuit agreed with the NLRB that the employees’ comments on Facebook constituted a “concerted activity” because: (1) their Facebook activities involved current employees; and, (2) the comments were a part of a discussion about the restaurant’s miscalculation of the employees’ state tax withholding. The Second Circuit also agreed with the Board in extending Section 7 protection to the Facebook activities because the online discussions related to workplace complaints.

In summary, the NLRB provides broad protection to public communications by employees if: (1) a colorable argument can connect such publications to concerted activity; and (2) such activity is ostensibly taken for “mutual aid or protection” of other employees. Further, as Pier Sixty and Three D illustrate, an individual’s activities may be concerted even where an employee acts on his own but in a way that may benefit a group.  Finally, it is important to note that the NLRB is constantly evolving and as the previous summaries illustrate, the interpretation of what activities are protected under Section 7 is effectively a moving target.