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Did you know that you have rights under the NLRB even though you are not a union member?

Many employees are unaware of the fact that, in addition to protection against illegal activities by various state laws, the National Labor Management Relations Act (29 USCS § 157) (the “Act”) provides protection for certain activities that are not covered by state laws. Oftentimes, employees are under the misconception that, in order to have the National Labor Relations Board investigate a perceived workplace wrong, the employee must belong to a union. That is not the case. Section 7 of the Act provides, in part, as follows:

Employees shall have the right. . . to engage in other concerted activities for the purpose of . . . other mutual aid or protection.

In order to be covered under under the Act, the employer must be engaged in an industry which affects commerce, or business relations between various states. This is a very broad definition of who is an employer.  In order to be covered by the Act, there must be a minimum level of activity in interstate commerce. For example, retailers are covered if the gross amount of business per year is $500,000 or more. Non-retailers must have a minimum of money flowing out of and into the state of at least $50,000 per year. Other types of industry have different minimum levels, as determined by the regulations of the Department of Labor. There are also a number of employers who are not covered by the Act, including federal, state and local governments, and governmental entities, employers in the railroad industry or in the airline industry.

What type of activity is protected by the Act? Generally, discussions between the employee and the employer about job conditions, compensation and  other job related discussions are protected activities. Actions, which normally are protected by the Act, may lose their protected status if the employee engages in indefensible or abusive conduct, or if his actions are deemed to be egregious or flagrant. The NLRB, in Atlantic Steel Co., 245 N.L.R.B. 814 (1979), has enumerated the following 4 factors to determine if an employee’s conduct forfeits protection under the act:

  1.  The place where the discussion about working conditions  occurs;
  2.  Subject matter of the discussion;
  3.  If, during the course of the discussion, employee becomes emotional, angry, and says inappropriate things to the employer; and,
  4. Whether the employee’s outburst was, in any way, provoked by the employer’s unfair labor practice.

The NLRB requires a careful balance of these factors, and if it finds that the employee engaged in “opprobrious conduct” the employee loses the protection of the Act. In other words, the NLRB and court decisions are finding that an employee is generally protected if complaining about work conditions or compensation, as long as it is done in a non-threatening manner, which is not disruptive to the rest of the workforce.

An example of a recent decision by the NLRB was a situation, in which, at first glance, seems clear that the employee lost the protection of the Act because of his conduct in trying to engage in protected discussion of working conditions. That was in the case of Plaza Auto Center, Inc. and Nick Aguirre, Case 28–CA–022256, decided on May 28, 2014.  The employee was hired as a salesman for the employer’s used-car business. Shortly after being hired, Aguirre spoke with fellow employees and managers about the company’s policies regarding breaks, restroom facilities, and compensation. Those conversations were prompted by the fact that on the first day of his job, while working a tent sale in a parking lot, Aguirre asked his manager whether he could use the bathroom facilities and take a break to eat. His manager replied to him “you’re always on break buddy… You just wait for customers all day”. He also told him that he was free to leave at any time if he didn’t like the company’s policy.

From that point on, for a period of about 2 months, Aguirre continued complaining about the company’s policies, and felt that he was being cheated out of commissions to which he was entitled. The managers of the car lot told the owner, and Aguirre was called into a meeting between the owner and the managers. The owner began the meeting by telling Aguirre that he was “talking a lot of negative stuff” and that he was asking too many questions. Aguirre responded that he had questions about the costs of the vehicles, commissions that he was supposed to earn, and the minimum wage. The owner told Aguirre, twice, that if he didn’t trust them he need not work there. At that point, Aguirre lost his temper, raised his voice and started yelling at the owner and calling him a number of obscene names. At that point, Aguirre stood up in the small office in which they were meeting, pushed his chair aside, and told the owner that if he were fired they would regret it. He was then fired.

A charge of unfair labor practice was then filed against Plaza. The administrative law judge found that Plaza had violated section 8 of the Act, several times, by inviting Aguirre to quit in response to his protected protests of working conditions. However, the judge concluded that Aguirre lost the protection of the Act by the belligerent behavior, menacing conduct, and obscenities directed to Plaza, and therefore denied his claim.  On appeal, the NLRB overturned the decision of the administrative law judge and found that all 4 of the factors set forth above, weighed in favor of the employee, and held the  discharge from employment to be a violation of the Act. Upon appeal to the United States Court of Appeals for the Ninth Circuit, the court concluded that 3 of the factors set forth above – the place of the discussion, the subject matter of the discussion, and employer provocation by unfair labor practices – supported the conclusion of the Board that Aguirre did not lose the protection of the act. However, the court was concerned with the 4th factor, namely whether or not the nature of the outburst weighed in favor of keeping the protection of the act or losing. it The Court of Appeals sent it back to the Board to make that determination.

Upon revisiting the facts of the case, the Board concluded that Aguirre had not engaged in menacingly, physically aggressive or belligerent conduct. It found that he had simply pushed the chair to the side, had not done so in a threatening manner, and had not made any physical threats to the employer. The Board then concluded that Aguirre did not lose the protection of the Act even though the nature of the outbursts weighed against protection by virtue of his obscene language.  The Board therefore ordered that  Aguirre be offered full reinstatement to his former job or a substantially equivalent position, without prejudice to his seniority or any other rights or privileges he previously enjoyed, as well as ordering payment of compensation for any loss of earnings and other benefits resulting from the discrimination against him.

As you can see by the above example, there are many  intricacies involved in in determining your employment rights than have been discussed in this article. Learn more about protecting your rights by selecting a competent lawyer to represent you.  Nathan Davidovich practices employment law in the state of Colorado, and he is available for consultation on any matters arising in the State of Colorado. Please contact Nathan Davidovich by email, at,  or by telephone, at 303-825-5529, to schedule a one hour consultation for only $350.

By: Nathan Davidovich
Copyright © July 2014