The concept behind the National Labor Relations Board’s protection of concerted activity was premised on the days of sweatshops, robber barons and Pinkertons firing into the crowds of the powerless, downtrodden employees who wanted only the ability to join together so they could amass sufficient clout to negotiate with management. As a wobbly once asked, is that so terrible?
But then, no one could foresee when Taft met Hartley that our society would mature to the point of a victimocracy, where the law would become the bludgeon of choice for all favored rights and entitlements. At Overlawyered, Walter Olson points out the clash:
* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer's Law Blog; Brennan Bolt, Labor Relations Today]
* “Starbucks cannot fire a union activist employee who cursed at a manager in front of customers, the National Labor Relations Board has ruled for the second time. Joseph Agins was active in trying to unionize four Manhattan Starbucks coffee shops between 2004 and 2007.” His repeated imprecations, sometimes in the presence of customers, included “this is [BS],” “do everything your damn self,” “about damn time” when the manager arrived to help, and “go … yourself”. A protected pattern of behavior under federal labor law, the NLRB ruled. “The board ordered Starbucks to offer Agins his old job or a substantially equivalent position, compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.” [Seattle Post-Intelligencer]
In contrast to the employees’ right under the NLRA to organize and engage in concerted activity, there remains the employers’ right to manage its employees. Employers’ prerogatives include the ability to manage its employees performance on the job. While the terms and conditions of employment may be subject to collective bargaining, and while no one can be discharged because of their efforts to engage in concerted activity, it cannot be without limits or no business could function.
Think of it this way: What if you ordered a mocha frappucino with skim from the barista, who charged you $17.49, which you paid. But then, the barista called you an asshole and told you to get the hell out of his Starbucks because you looked like a hipster. As it turned out, the barista was a union organizer, and felt that hipsters’ attitudes toward rank and file employee rights to engage in collective bargaining were unsupportive, and that as a result of their negativity, they undermined his efforts to engage in protected concerted activity.
The nature of concerted activity inherently conflicts with management prerogatives, and it was understood to be the case from the outset. When the NLRA was enacted in 1935 (and amended in 1947), the trade-off was deemed necessary for the protection of employees, and the NLRB was created so that an agency with expertise in the tricky, conflicted nature of this clash of rights could determine where the line was drawn between the ability of employees to unionize and the ability of management to run a viable business.
The problem arises when the rights of one is out of whack with the rights of the other. Would Starbucks be a viable business if its baristas cursed at customers? What if they had a union-based reason for doing so? What if the barista doing the cursing was a labor organizer?
There are lines that no one would have thought crossable back in 1947, one of which was that employee tirades and cursing went beyond what management would be required to tolerate in the course of protected activity. The NLRB now says, “no more.” The nature of rights tends to flow toward extension, and have now reached the point where what was once deemed a fundamental management prerogative, that employees could not curse at their supervisors or customers on the job without recourse, is a protected activity.
Of course, it’s not as insanely ridiculous as a person who is allowed to live in someone’s home as part of their employment as a nanny, who then decides not to work and refuses to leave. But that could never happen. In a sane workplace.