The National Labor Relations Act (NLRA) expressly gives employees the right to self-organize, form, join, or assist labor organizations, bargain collectively through representatives of their own choosing, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

​An employer who fires, suspends, or otherwise penalizes an employee for taking part in protected group activity is liable under the Act

Regardless of whether an employee is represented by a union, Section 7 of the Act protects an employee’s right to come together with coworkers to improve their working conditions--including when they come together online via social media websites like Facebook, Instagram, Snapchat, and others.

​Not only can a social media post be concerted activity, but so too can a comment or a “like.”

However, not all social media activity is protected by the NLRA. To get the Act’s protection, your statement must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management.

Statements that are egregiously offensive or knowingly and deliberately false are not protected.

Public disparagements of the employer’s products or services without relating those complaints to any labor controversy are similarly not protected, nor are individual complaints about some aspect of work.
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That is not to say that individual employees cannot engage in protected concerted activity.

A single employee may engage in concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

What constitutes a statement so egregious that it loses the Act’s protection depends on many factors and is subject to a balancing test between the employee’s right to engage in concerted activity and the employer’s right to maintain order, respect, and a workplace free from discrimination.

For example, the Board has found the following language not too egregious or abusive:

In agreeing with the Board, the Second Circuit reasoned that, although the employee’s message was “dominated by vulgar attacks,” the subject matter of the message included workplace concerns that was made in the midst of employer hostility toward employees’ union activities.
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Thus, this “outburst” was “not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment.” Also of importance, the employer consistently tolerated profanity among its workers, and the outburst was not in the immediate presence of customers or disruptive to a work event.

Even where an employee does not directly disparage the employer’s products or services, if the employee insults the employer’s customers, the Board will find the statement similarly disloyal and thus unprotected.

​The Board recently found the below language disloyal:

On June 21, 2021, Rod Tanner of Tanner & Associates shared insights in a panel discussion focused on Labor Law Developments and Predictions for the Future. 

If you would like to watch the video, CLICK HERE. If you do not already have access to the video, request video access by clicking the button below and sending us an email. 

The Center for American and International Law also discussed NLRB investigations and trials during the discussion about labor law updates on June 21, 2021. 

If you would like to read the PDF document that expands on this topic in depth, CLICK HERE. This PDF also includes insights from the Labor Law Developments and Predictions for the Future panel.

If you do not have access to this PDF, request access by clicking the button below to send us an email and we will send you the password. 

No. It is a common misconception that the NLRA applies only to unionized workplaces.

The Act applies to most private sector employers. It expressly does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act, nor does it apply to independent contractors or supervisors (subject to certain exceptions).

Because employees of non-unionized workplaces are still protected by the Act, this means they are equally protected in sharing information, signing petitions, and seeking to improve terms and conditions of their employment.

​Under certain conditions, and to varying degrees, employees are also able to strike and picket.

Employees are protected from unlawful acts of both their employers and any union that represents them. Neither employers nor unions may restrain or coerce employees exercising their rights under the Act. The employer and union are obligated to bargain in good faith with each other over the terms and conditions of employment.

Specifically, Section 7 of the NLRA guarantees employees “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 purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act. For example, employers may not threaten employees with adverse consequences if they support a union or engage in protected, concerted activity; promise employees benefits if they reject the union; coercively question employees about their own or coworkers’ union activities or sympathies; etc.

If you believe your NLRA rights have been violated, you may file a charge against an employer (or labor organization) with the NLRB subject to the six-month statute of limitations.

The charge is then investigated by Board agents who gather evidence and may take affidavits from parties and witnesses before submitting their findings to the Regional Director or NLRB attorneys at the Division of Advice in Washington, D.C.

In certain circumstances, the Regional Director may petition the appropriate U.S. District Court for temporary injunction orders to restore the status quo. Critically, it is illegal for your employer to fire, demote, harass, or otherwise retaliate against you for reporting an issue or filing a charge with the NLRB.

Employees may also file a grievance pursuant to an established grievance and arbitration procedure contained within the parties’ collective bargaining agreement, but whether an employee can file both a charge with the NLRB and a grievance, and which one supersedes the other, is a nuanced issue that can present many complications for employees.

On the campaign trial, President Biden vowed to be the most “pro-union” president in U.S. history. He issued his support for the Protecting the Right to Organize Act (PRO Act) and his platform contains numerous union-friendly policies including promises to enact financial penalties on companies that interfere with organizing efforts and to provide public sector employees a federal guarantee to organize. He even released a video on March 1 announcing his support for Amazon workers in Bessemer, Alabama pushing to unionize.

Within mere hours of taking office, President Biden delivered on that promise by fired the Trump-appointed National Labor Relations Board General Counsel Peter Robb after he refused the administration’s call for him to resign. The general counsel investigates unfair labor practice charges, brings administrative complaints before the Board, and represents the agency before federal courts.
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Robb had less than 10 months left in his four-year term, but unions had been urging President Biden to break with precedent by forcing him out immediately. Under Robb’s management-oriented leadership, the Board had rendered countless aggressively pro-business decisions and memorandums, which led to the first Board general counsel to be forced out in more than half a century—and the first to be fired in Board history.

Deputy General Counsel Alice Stock briefly assumed the role of acting general counsel the following day, but she was also terminated at the end of the day. President Biden then named Peter Sung Ohr, a career employee of the Board, as Acting General Counsel, who quickly worked to undo many of Robb’s policies, stating he did not plan on being a “potted plant” while serving his temporary post. Some employers have begun asserting legal challenges to Ohr’s authority, but the Republican-controlled Board on March 1 turned down an opportunity to determine whether Ohr was legitimately appointed.

In Memorandum GC 21-02, Ohr emphasized the policy of the Act is to encourage collective bargaining and protect workers’ rights to organize and rescinded 10 of Robb’s General Counsel Memoranda, determining “that a number of outstanding General Counsel Memoranda are either inconsistent with the above-described policies and/or Board law, or are no longer necessary.” He concluded GC 21-02 by promising to issue future memoranda setting forth additional new policies in the near future.

President Biden announced in February that he would nominate Jennifer Abruzzo, a lawyer for Communication Workers of America, to serve as permanent general counsel for the Board. Abruzzo previously served as deputy general counsel and acting general counsel at the Board. Her nomination was sent to the Senate on February 17, but a confirmation hearing has not yet been scheduled. Management-side lawyers are already preparing to fight her nomination, likely arguing an act taken before Robb’s term would have expired in November is unenforceable. 
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In addition to Robb’s removal, the President named Democratic Board member Lauren McFerran to head the Board, taking over from member John Ring, the Republican Chairman since 2018 who likewise pushed a pro-business agenda in the Trump administration. The fifth seat, reserved for a Democrat, remains vacant, however, so McFerran is still outnumbered 3-1 by Republicans on the Board.

Along with the vacant seat, President Biden will also have the opportunity to fill Member William Emanuel’s seat when it expires in August of this year.

​Both appointments will require Senate confirmation, but once they are filled, the pro-business agenda of Trump’s Board will be replaced with a pro-union majority and General Counsel under an administration committed to protecting and expanding workers’ rights in the U.S.

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On September 18-19, 2015, the Labor and Employment Law Section of the State Bar of Texas held its 26th Annual Labor and Employment Law Institute in San Antonio, Texas. At the conference, Glenda Pittman (Austin) and Fito Agraz (Ogletree Deakins, Dallas) gave a presentation discussing recent developments relating to the National Labor Relations Board.