The Wall Street Journal has an excellent story about a new “information campaign” planned by the NLRB that will impact non-union employers.   The goal is to inform all employees about their legal right to take part in “protected concerted activities.”   Indeed, the right to engage in “protected concerted activity” is one aspect of the National Labor Relations Act that applies to employees of both union and non-unionized employers.   In short, two or more employees have a right to complain about their terms and conditions of employment, without retailiation from their employer for doing so.

According to the Journal:

I want workers to know that if they have grievances they have a right under certain circumstances to voice them,” Mr. Pearce [NLRB Chairman] said.

In the next two weeks, the NLRB is set to roll out a Web page explaining “concerted activity” and highlighting cases involving unlawful punishment for it. It also plans pamphlets in English and Spanish that will be distributed through worker-advocacy groups and sister federal agencies, such as the Labor Department. NLRB officials will address the issue in speeches and appearances on radio and television.

Most employers would not object, necessarily, to employees voicing concerns about terms and conditions of work.  In fact, employees complain all the time and are usually not fired for doing so.   The problem is that the current Board has found that certain employee behavior is protected under this doctrine, even when the employee is clearly behaving in an inappropriate manner.  For instance, in a 2010 Labor Board case, Plaza Auto Center, Inc. and Nick Aguirre, Case No. 28-CA-22256 (August 16, 2010), the Board found that the employee was engaging in protected activity even though the employee called the owner of the Company a “F’—–g mother F’——g,” an “F’——- crook,” and “an a–hole” and told him that everyone talked about him, nobody liked him, and that he  was stupid.   He also pushed his chair and told the owner that if he is fired he would “regret” it — a statement which could be interpreted as a thinly veiled threat of violence.

Still, the NLRB found that his comments were protected because before the outburst, the employee was complaining at a meeting about various terms and conditions of employment with other employees.   The Board found that while his outburst was “vehement and profane,” it “did not render him unfit for further service” and was thus protected.

The same issue has come up time and time again in the social media context as employees take to Facebook, Twitter, etc., to write sometimes nasty messages about their working conditions.   But, here, again, the Board has usually found such messages to be protected under the Act.

These cases illustrate the problem with “protected concerted activity” and the Board’s new “information push” — employees can sometimes engage in behavior that no rationale employer should be expected to tolerate, but that still might be protected anyway.    One can imagine that these types of cases might rise with the Labor Board’s new information push on the subject.

In the Journal’s story, Mike Eastman, a good friend from the US Chamber, makes the point that the NLRB is just trying to maintain its relevance in an era of declining union density.   The NLRB disputes that contention.    It certainly helps the NLRB stay active when one of its major pushes now concerns a section of the law that impacts the 94% of private sector employers that are non-union.