YouTube-wise concrete crew a poster child for protected concerted activity

A new National Labor Relations Board (NLRB) webpage describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union. A map at guides users to more than a dozen recent protected concerted activity cases.

They include that of a Lakewood, Wash.-based concrete foundation contractor, Rain City Construction, the NLRB challenged for its termination of five employees who aired grievances on perceived job site safety in a YouTube video. The agency’s regional office issued a complaint after an investigation. As a hearing opened, the case settled, with the workers receiving full backpay but declining reinstatement.

The employees—all immigrants from El Salvador—learned they were building concrete foundations at a former Superfund site and worried that the soil they were handling was contaminated with arsenic and other toxins, NLRB notes. The employees also said they were required to wear badges indicating they’d been trained to handle hazardous materials, when in fact, the badges belonged to other workers and they had never been trained.

Speaking in Spanish, they hid their faces in shadow during videotaping in an attempt to avoid retaliation. However, within 10 days, the three who appeared in the video and two others who were close to them had all lost their jobs with Rain City Contractors. Through the ensuing months, according to charges filed with the agency’s Seattle office, the employer continued to threaten and interrogate other employees, warning them not to talk about working conditions with outsiders.

Following an investigation, the NLRB regional director determined the YouTube video was protected because the employees voiced concerns about safety in the workplace, and the public airing of their complaints did not lose the National Labor Relations Act’s protection because they accurately described their concerns about working conditions. On behalf of the NLRB General Counsel, the director issued a complaint calling for a hearing before an administrative law judge.

As the hearing began in June 2009, NLRB attorneys were prepared to play the video, and to present evidence that the employer had been fined for numerous violations of state law regarding the same concerns as those the workers raised. On the second morning of testimony, Rain City Contractors agreed to settle the case.

Some cases were quickly settled after charges were filed, while others progressed to a Board decision or to federal appellate courts. They were selected to show a variety of situations, but they have in common a finding at some point in the NLRB process that the activity that the employees undertook was protected under federal labor law. The right to engage in certain types of concerted activity was written into the original 1935 National Labor Relations Act’s Section 7: “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.