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EMPLOYMENT LAW GUIDE: - page 33 / 134

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only to unionized employers, in fact the NLRA protects all employees who engage in

“concerted activities” for “mutual aid or protection.”

For employee conduct in a non-unionized workplace to be protected, it must be both

“concerted” and “for mutual aid or protection.” “Concerted activity” is conduct engaged in

by an employee with, or on the authority of, other employees. Similarly, such concerted

activity is for “mutual aid or protection” if it is intended to further the employees’ collective

employment-related interests. The NLRA does not shelter concerted activity that is violent,

unlawful, in breach of contract, or “indefensibly disloyal.” Nor does the NLRA protect

activity by a single employee for that individual’s personal or individual benefit.

The determination of whether certain conduct is “concerted” or “for mutual aid or

protection” is highly fact-specific, and frequently requires review by experienced counsel.

Indeed, the National Labor Relations Board’s determination as to what constitutes protected

“concerted activity” has varied over the years. However, protected “concerted activity”

generally includes:

  • employee petitions and letters to an employer regarding the terms or conditions of employment;

  • employee discussions regarding their terms or conditions of employment;

  • employee complaints to management regarding the terms or conditions of employment;

  • employee complaints to management regarding actions taken against co- employees;

  • employee complaints to federal or state agencies regarding the terms or conditions of employment;

  • employee refusals to accept job assignments claimed to be unsafe;

  • employee protests against alleged unlawful employment discrimination; and

  • employee refusals to cross a picket line at another employer’s place of business.

Employers are prohibited not only from punishing employees for engaging in protected

activities, but from instituting policies designed to prevent them from doing so. The National

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