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NLRB Says Employee Protest of Government Action is Protected Concerted Activity

    Client Alerts
  • October 12, 2015
Section 7 of the National Labor Relations Act protects employees’ rights to engage in “concerted activity.” Concerted activity means persons acting on behalf of two or more employees with regard to issues involving terms and conditions of employment. For example, Section 7 covers actions such as complaints over wages or safety conditions, employees criticizing the company on social media, and similar subjects. In August, the NLRB extended the scope of concerted activity to include employee reactions to a government agency’s decision that could impact their jobs.

In Sun Cab, Inc., 17 Las Vegas taxi drivers engaged in a temporary work stoppage to protest the decision of a local taxi commission to increase the number of medallions available for drivers. Although the cab companies supported this decision, the drivers objected, fearing increased competition for fares. In protest, the drivers refused to pick up passengers for 2-3 hours after learning of the commission’s decision. In response, the employer issued the participating drivers final written warnings and suspended them based on the work stoppage. They filed an unfair labor practice charge with the NLRB, claiming that their right to engage in concerted activity had been violated.

In response, the employer argued that concerted activity does not include employees protesting the actions of a government agency, because even if the commission’s decision could affect the employees’ terms and conditions of employment, the employer had no ability to control the issuance of more taxi medallions. In other words, the work stoppage constituted a political protest, not one involving protected concerted activity rights. The NLRB majority disagreed, concluding that in this case the suspensions violated Section 7.

In its opinion, the Board stated that the action involved concerted activity because it was aimed at causing the taxi companies to use their resources to attempt to derail the medallion expansion. Efforts to influence the influencers involve protected attempts to negotiate terms and conditions of employment. Based on this decision, employers should understand that employee efforts to determine terms and conditions of employment can be protected under the NLRA, even if those efforts are not directly aimed at the employer and its employment decisions.