How do you know whether employee discipline violates the NLRA?

The question of whether an employee acted in concert with other employees generally arises when the employee has been disciplined, maybe even discharged, by the employer for complaining about working conditions or organizing others to complain about conditions.

For example, an employee may be fired for complaining to the boss about his or her salary. If the employee complained about coworkers' low salaries too and if the employee was designated as the speaker of the group, then the complaint is concerted activity and the employee is protected against discharge. If, on the other hand, the employee only complained about his or her own salary, then the complaint may be personal and not protected against employer retribution.

Two-step inquiry. The inquiry, then, is a two-step process:

1. Was the employee's activity concerted?

2. Was the concerted activity protected?

If the activity was concerted and protected, an employee may not be disciplined for it. If the activity was concerted but not protected or neither concerted nor protected, the employer may be able to discipline the employee.

Lesson for management. Before discharging an employee, an employer should not only examine the immediate justification for the termination but also consider preceding circumstances that may shield the employee from discharge for the expressed reason. Consider some of the following situations:

Employee acts alone. An employee who is merely raising complaints about personal work problems and who never joins with any other employee to remedy the situation is not protected under the National Labor Relations Act because the employee is not engaging in concerted activity. However, an employee who acts alone to better working conditions for other employees is protected from disciplinary action by the employer under the NLRA. Similarly, an employee who is designated as spokesperson by a group of employees is protected when approaching management to discuss working conditions. Further, an employee does not have to be specifically authorized to speak on behalf of other employees in order for the employee's complaint to be concerted activity.

Continuation of prior activity. A lone employee engages in concerted activity when making an individual complaint regarding a subject that he has complained about in the past with other employees. The activity is protected because it is a continuation of prior concerted action.

Agreement to act together not necessary. There need not be an actual agreement among the employees to act together in order for an employee acting individually to be protected under the NLRA.

Sending e-mail can be concerted activity. The act of sending an electronic mail message to other employees may be concerted activity depending upon the purpose and intent of the communication.

Employee acts together with other employees. The clearest form of concerted activity protected under the NLRA is when two or more employees act as a group to make complaints about working conditions or take action to rectify working conditions. This form of concerted activity includes situations where individual employees seek to initiate, induce or prepare for group action, as well as the situation where individuals bring group complaints to management.

Group ultimatum not required. Employees who complain as a group about working conditions may be protected by the NLRA even if they do not collectively agree what actions they will take if their complaints are not addressed.

Employer knowledge of concerted activity. Generally, there must be some proof that the employer knows that more than one employee is actually joining in the complaint or protest before retaliatory action is prohibited under the NLRA. In addition, it must appear that the concerted activity took place before, not after, the complaint. Enlisting another employee in the activity after the fact is insufficient proof that the employee acted in concert in complaining.