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Labor Unions And “Protected Concerted Activity:” What Private Employers – Unionized Or NOT – Need To Know In 2022 – Employee Rights/ Labour Relations



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Employers, it seems, can’t catch a break these days.

They build businesses. They take risks. They face increasing
supply costs, supply-chain problems, interest rates, and
staff-shortages. Yet they create jobs and provide employees with
livelihoods and opportunities. Surely, if you’re an employer or
help to operate or manage one, you might wonder, “Is it too
much to ask, in exchange for all that, that our
employees not trash how we operate in the local
media?”

The answer to that question – as with much in the law
– is frustrating but accurate: “That depends.”
 

The MasTec Case

Just ask MasTec, which bills itself as “one the largest and
most diversified U.S. infrastructure services providers in the
country” with about “25,000 employees in more than 500
locations across the United States.” Its services include
employing “service technicians” to DIRECTV to install
satellite TV receivers. Its fields of “expertise,” it
says, include “Communications.”

That’s ironic, given what the National Labor Relations Board
(“NLRB” or the “Board”) has recently
communicated to anyone with a smartphone about what MasTec
allegedly did when its employees communicated in a way that the
company didn’t like.

The Board, on June 30, 2022, announced that the company had
recently “agreed to pay 26 former employees $3.12 million in
back pay, interest, and expenses,” arising from a dispute that
began in 2006. The saga, according to the NLRB’s news release,
started

when 26 service technicians employed by MasTec … were
fired after reaching out to a local television station and
participating in an interview with a local reporter, which was
broadcast in the Orlando, Florida area.

In the interview, the technicians voiced their frustration with
the new pay structure implemented by their employer, which was
based upon the technicians’ ability to convince customers to
agree to a particular installation option.

The technicians expressed concern with their supervisors telling
them to tell customers whatever it took to convince them to agree
[with the option] and with [the technicians’] losing money if
they did not convince customers.

The “installation option,” according to FierceTelecom, an industry news website, was a
“mandate that required DirecTV set-tops [to] be connected to
copper landlines” that “provided the one-way satellite
service with a coveted a way to know what its customers were
watching.”

So what had the company done wrong? Hadn’t it merely told
its employees how to do the jobs for which they were being paid,
and justifiably exercised its right to end its relationship with
the ungrateful lot who had embarrassed the company by airing their
private gripes in the public square?   

In a word: No.

One of the NLRB’s 32 “regions” investigated the
matter. A hearing was held before an administrative law judge. In
2011, the Board “determined that the employees’
participation in the TV interview constituted protected
concerted activity
. Consequently, it found that “by
causing the discharge of the technicians for their participation in
the newscast and by discharging them, DIRECTV and MasTec committed
unfair labor practices.” Note the conspicuous absence
of any reference to a “union.”

In 2016 – more than five years later – the matter
found its way to federal court. The U.S. Court of Appeals for the
District of Columbia Circuit, according to the NLRB, “enforced
the Board’s order, including the requirement that DIRECTV and
MasTec make the unlawfully discharged employees whole.”

MasTec apparently balked at the court’s order, which, last
October, led the D.C. Circuit to hold MasTec in contempt of court.
The court imposed, “among other things, costs, expenses, and
substantial prospective fines for future violations.”

Negotiations among the Board, MasTec, and DIRECTV followed,
which resulted in the $3MM+ settlement. That’s a drop in the
bucket for the employer in this case, but the Board thought the
episode significant enough to make a very public point.
  

Prudent employers will want to know what that point is, given
what appears to be employees’ renewed interest in
representation by labor unions and their related rights.  

Labor unions? Most employers are at least aware of the wide
array of federal and state laws regulating the
employment-relationship, such as those dealing with discrimination,
wages, benefits, family and medical leave, and workers’
compensation.  

But unions? Relatively few private employers encounter them.
According to the U.S. Bureau of Labor Statistics, the
union-membership rate of private-sector workers
last year, nationwide, was only 6.1%. (The
rate is much higher among public-sector workers.) In North
Carolina, it’s far less than that. Few employers in North
Carolina, therefore, know much if anything about the National Labor
Relations Act (“NLRA”) – which has traditionally
been associated with unions – even though it’s been on
the books for more than 85 years.  

What should employers do?

Here are five points that MasTec’s public experience has to
teach almost all private employers (in North Carolina and
elsewhere):

1. The NLRA probably applies to you regardless of whether a
union has darkened your door.

Many “fair employment practice” laws do or don’t
apply to employers based on whether they have employed a certain
number of employees over a certain period of
time. E.g., the Family and Medical Leave Act of
1993 (applies to workplaces of more than 50+ employees); the Age
Discrimination in Employment Act of 1967 (20+ employees); Title VII
of the Civil Rights Act of 1964 (15+ employees); and the N.C.
Persons with Disabilities Protection Act (15+ “full-time
employees within the State”).

But when it comes to the NLRA, employers can forget all
that.

The Board’s jurisdiction over employers, employees, and
labor disputes hinges on numerous other factors, such as:

  • The enterprise’s annual gross revenues;

  • In some cases, annual gross revenues from business transactions
    with the federal government; and

  • The value of its annual purchases and sales in “interstate
    commerce.”

The Board doesn’t have jurisdiction over religious schools
(or, oddly, horse or dog racing operations),
but does have jurisdiction over retail
enterprises with gross annual revenues of at least $500K
and all non-retail enterprises so long as their
effect on “interstate commerce” is not negligible.

The vast majority of private employers should
therefore assume that they’re covered by the NLRA and subject
to the 
jurisdiction of
the NLRB
.

2. Your employees, because of the NLRA, have the right to
engage in “protected concerted activity.” You had better
know what that is because you can’t avoid violating it if you
don’t.

Government-speak is often incoherent or, if not, too biased to
provide reliable legal guidance. But the Board’s summary of
employees’ rights under the NLRA “to join together to
improve their wages and working conditions, with or
without a union,
” is pretty good. To paraphrase it,
almost all employees of a covered employer (except for supervisors
and managers) have the right to:

  • Form or try to form a union in your workplace;

  • Join a union whether the union has been recognized by the
    employer or not;

  • Help a union to organize his or her fellow employees;

  • Engage in “concerted activity,” which occurs when two
    or more employees take action for their mutual aid or protection
    regarding terms and conditions of employment, such as when two or
    more employees approach their employer about improving pay or meet
    to discuss with each other work-related
    issues such as their pay or safety concerns;
    and

  • Engage in such activity alone if he or she
    is acting on the authority of other employees,
    such as by bringing group complaints to the employer’s
    attention, trying to induce group action, or seeking to prepare for
    group action.

3. “Protected concerted activity” includes the
right to complain to third-parties – including media outlets
– in efforts to try to improve terms and conditions of
employment.

The NLRB in the MasTec report says that “[w]orkers have the
right to speak out publicly about their pay and working
conditions.” This isn’t new.

That an employee who speaks out to a group about workplace
concerns is engaged
in “protected concerted activity” has been
settled for years, as has the principle that the right to engage in
such activity includes the right of employees to use social media
– or any media – to communicate with each
other and the public for that purpose.

Personnel policies and NDAs that prohibit employees from
disclosing some kinds of information are perfectly lawful, but
policies and agreements that go too far may be
unenforceable and land the employer in hot
water.  

4. Such complaints can be protected by law even if they are
false and unfair.

Hard to believe, but true. According to an opinion of one NLRB
administrative law judge, “[t]he Board has long held that
employees do not lose the protection of the Act by making false
statements in the course of union or other protected concerted
activity to improve their working conditions … . Thus, an
employer may not discipline or discharge an employee for
unintentional or merely negligent false, misleading, or inaccurate
statements during the course of such protected activity.”

Is there an exception? Sure. An employer, to get around that
rule if accused (in an “unfair labor practice” charge
before the Board) of disciplining or firing an employee because he
or she, while engaged in protected concerted activity, made a
damaging false statement, just needs to be able
to prove that the statements were
“maliciously” false, i.e., that they
“were made with knowledge of their falsity or reckless
disregard for their truth or falsity.” Good luck.  

5. All of this matters more than it used to because
employees appear to have a renewed interest in labor unions and
related rights.

One of the NLRB’s primary duties is to conduct secret-ballot
elections among employees in designated “bargaining
units” to determine whether employees in them wish to be
represented by a union. Such elections are triggered by petitions
filed with the NLRB, so it pays careful attention to the number
filed. 

The Board, within the last 30 days, announced that filed
“union representation petitions … increased [by] 58%”
during the period from October 1, 2021, to June 30, 2022, as
compared to the same period ending in June of 2021; and that, by
May 25 of this year, the Board’s fiscal-year 2022 petitions
exceeded the total number of petitions filed in all of
FY2021. 

The number of unfair labor practice charges has increased too.
What’s more, the U.S. Department of Justice, on July 26, 2022,
announced that the DOJ and the NLRB have signed a “memorandum
of understanding” to enhance coordination between the DOJ and
the Board to “ensure that workers are able to freely exercise
their rights under the labor laws.” 

Conclusion

Such laws and employees’ interest in them, in other words,
seem to be enjoying a genuine “moment.” How long it will
last is anybody’s guess. But wise employers will pay attention,
take measures to avoid even the appearance of adverse action
against employees because of “protected concerted
activity,” and try to avoid the costly and possibly public
attention of the NLRB.    

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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