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Legal Speak

A $700,000 Mistake?

Published October 21, 2010 9:39 AM by Tony DeWitt

If you're in management, you most likely don't like unions. If you're a union member, you most likely don't think too highly of management. But irrespective of what side of the line you find yourself on, the bottom line is that unions and union contracts have a great deal of protection. It is difficult (although not impossible) to break a union contract, and unions have access to weighty legal talent when it comes to legal fights.

In Jupiter, Florida, recently the United Healthcare Workers East, an SEIU union, filed a complaint with the National Labor Relations Board in support of its workers who were laid off when a new owner took over a facility. The facility ultimately gave the workers back their jobs and paid back pay in the amount of $700,000.

When dealing with unions, it is always a good idea to get a legal opinion before taking action.  And when it comes to the National Labor Relations Act, it's a good idea to get legal advice any time a worker represents that they are making a complaint on behalf of other employees.

It has been said that if you see all problems as a nail, your way of dealing with them is to hammer them. Certainly with respect to employees who raise issues that affect all workers, like wages, salaries, working conditions and safety issues, it is tempting to simply fire the person who comes in and says "lots of us want to ..." and then proceeds to address an issue or a complaint. It's tempting, but resist the temptation!

Most managers think that the National Labor Relations Act protects only unionized workers. But that's wrong. The NLRA protects all workers, and in particular it protects workers from retaliation for "protected concerted activity."

§ 157.  Right of employees as to organization, collective bargaining, etc.

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 of 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 158(a)(3) of this title.

That raises the question: "What is concerted activity?"

While the term is not defined in the Act, according to the courts "it clearly enough embraces the activities of employees who have joined together in order to achieve common goals."  In other words, if employees are concerned that they are being asked to work without sufficient staff, and one employee raises this concern to management as the representative of the others, that is protected concerted activity. That employee can't be singled out and fired for raising the issue - to do so violates the National Labor Relations Act.

The phrase, "to engage in concerted activities," does not refer only to the situation in which two or more employees are working together at the same time and the same place toward a common goal. Courts reject that. Instead, courts say an employee may be engaged in concerted activity even when he acts alone. For example, where an employee refuses to sign a document intending to induce others to do the same.

An employee who urged workers not to work extra shifts until management hired additional staff might well be engaging in protected concerted activity, even though she is advocating something that only a few workers are likely to agree with.

Generally, to qualify as "concerted activity" courts require that the conduct "appear at the very least that it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interests of the employees."    

When an employee approaches the management and says that, on behalf of all the workers in the facility, she would like to see the resident bathing policy changed, she cannot be reprimanded or disciplined for acting on behalf of his fellow employees. She has an absolute right to do this.

But, what happens if an employer decides not to abide by the law? The employee can file a complaint with the NLRB, and an investigator will conduct an investigation to determine if the employee has been improperly discharged. The investigation tends to be very employee friendly, and the number of nursing homes and assisted living centers that have been sanctioned or disciplined by the NLRB is a steadily growing number. Employees can get reinstatement, back pay, and other damages. And they never have to hire an attorney because the NLRB appoints an attorney for them.

When dealing with employees in this situation, there is no substitute for good legal advice.


posted by Tony DeWitt
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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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