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in International Labour Law Reports Online


* Some footnotes are omitted; those included are not renumbered - Ed. 3. Section 8(a)(1) of the NLRA provides: It shall be an unfair labor practice for an employer - (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [71.

6. The NLRB has recently held that, where a group of employees are not unionized and there is no collective-bargaining agreement, an employee's assertion of a right that can only be presumed to be of interest to other employees is not concerted activity. Meyers Industries, 268 N.L.R.B. No. 73 (1984). The Board, however, distinguished that case from the cases involving the Interboro doctrine, which is based on the existence of a collective-bargaining agreement. The Meyers case is thus of no relevance here. 7. Respondent argues that because 'the scope of the "concerted activities" clause in Section 7 is essentially a jurisdictional or legal question concerning the coverage of the Act,' we need not defer to the expertise of the Board.... We have never, however, held that such an exception exists to the normal standard of review of Board interpretations of the Act; indeed, we have not hesitated to defer to the Board's interpretation of the Act in the context of issues substantially similar to that presented here....

8. Section 7 lists these and other activities initially and concludes the list with the phrase 'other concerted activities,' thereby indicating that the enumerated activities are deemed to be 'concerted.'

10. Of course, at some point an individual employee's actions may become so remotely related to the activities of fellow employees that it cannot reasonably be said that the employee is engaged in concerted activity. For instance, the Board has held that if an employer were to discharge an employee for purely personal 'griping,' the employee could not claim the protection of § 7. See, e.g., Capital Ornamenta! Concrete Specialties, Inc., 248 N.L.R.B. 851 (1980). In addition, although the Board relies entirely on its interpretation of § 7 as support for the Interboro doctrine, it bears noting that under § 8(a)(l), an employer commits an unfair labor practice if he or she 'interfere^] with, [or] restraints]' concerted activity. It is possible, therefore, for an employer to commit an unfair labor practice by discharging an employee who is not himself involved in concerted activity, but whose actions are related to other employees' concerted activities in such a manner as to render his discharge an interference or restraint on those activities. In the context of the Interboro doctrine, for instance, even if an individual's invocation of rights provided for in a collective-bargaining agreement, for some reason, were not concerted activity, the discharge of that individual would still be an unfair labor practice if the result were to restrain or interfere with the concerted activity of negotiating or enforcing a collective-bargaining agreement. 11. In § 20 of the Clayton Act, Congress provided that 'no... injunction shall prohibit any person or persons, wheter singly or in concert, from ... ceating, to perform any work [or other specified activities]. 89 V.S.C. § 52 (emphasis added).

5. The Board may, of course, require the employees to first seek satisfaction from contractual arbitration and grievance procedures.... But that deferral decision can properly be made only afier an unfair labor practice is properly filed, which requires a determination whether 'concerted activity' is involved in the first instance.


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