Labor Day brief: Protected Concerted Activity

Rights you probably didn't know you had:

The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren't in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.

On this day of relaxed family get-togethers or frantic Convention activity, a pause to reflect on the nature of this holiday is worth the time. Many people fought (and died) to secure safe and equitable working conditions for all of us. And if we're not prepared to come together and fight to preserve those rights, we will lose them.

The following case may help you understand protected concerted activity a little better:

Morganton, North Carolina
Poultry processing plant
11-CA-021378

A group of poultry workers walked off the job to protest a new requirement that they pay 50 cents per pair for the latex gloves they used on the line. As the workers gathered at a nearby church, two women told their story to a local newspaper and were quoted by name. They were soon fired. The case ultimately went before the Board, which found the firings were unlawful because they punished concerted activity that was protected.

One of the women was fired by Case Farms of North Carolina, Inc. on the same day that a company Human Resources official read the newspaper article. The second was suspended the following day and fired three days later. The employer said both terminations were for legitimate reasons unrelated to the newspaper article or the work stoppage. However, in charges filed with the NLRB regional office in Winston-Salem, the workers claimed they were punished for speaking up for themselves and fellow employees.

After an investigation, the NLRB agreed with the fired workers and called for a hearing before an Administrative Law Judge, who found that the discharges were unlawful because they retaliated against protected concerted activity. That decision was appealed to the Board in Washington D.C.

The Board agreed that the firings were unlawful and ordered full backpay and reinstatement for one of the employees, Luz R. Because the immigration status of the second employee, Evodia D., was in doubt, the Board ordered that she be offered reinstatement if she could establish that she was legally able to work in the United States.

Case Farms appealed the decision to the U.S. Court of Appeals for the District of Columbia. With the help of a volunteer mediator, a settlement was reached in which Luz R. received $20,000 in backpay and waived reinstatement. No reinstatement or backpay was provided to Evodia D.

From the Act itself:

Sec. 7. [§ 157.] Employees shall have 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, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

Of course that last part doesn't apply to North Carolina workers since we are a "right to work" state, but none of the other freedoms are impacted by that. But you have to be aware of those freedoms to exercise them, which brings us to (some of) the advantages of union membership.

Collective bargaining is a powerful thing, but so is collective knowledge. Unions expend a great deal of effort educating their members on issues and rights specific to the member's workplace. And if a member finds him- or her-self at odds with management, union representatives are (in most cases) present during any hearings, conferences or disciplinary proceedings.

If nothing else, this has the effect of keeping an employer honest. In a perfect world, that would not be necessary. But we don't live there. An employee facing this alone, even with a good boss, is placing their economic security in the hands of someone who may be completely ignorant of both management's responsibility and the employee's rights. Injustice does occur even when injustice wasn't the intent. It happens every day in North Carolina, and a big reason for that is our extremely low (3%) labor union involvement.

If we ever want to grow as a state, and develop a resilient economy that can survive downturns like the one we're experiencing now, we have to shake off our decades-old aversion to labor unions. Knowledge is never a detriment to prosperity, but a lack of knowledge almost always is.