Michael P. Maslanka, assistant professor of law, UNT Dallas College of Law.

Here's a news headline from the Associated Press dated April 17: "Ten California Nurses Suspended for Refusing to Work Without N95 Masks." The article states that these are the premium masks that protect an individual wearing them from becoming infected with the COVID-19 virus. HR at their hospital is investigating their refusal to work. Let's say the nurses are ultimately fired or docked pay for their refusal. Claim or no claim? Answer: claim. A little-known provision of the National Labor Relations Act (NLRA), enacted 67 years ago, provides a federal claim. Here's the history: The 1930′s saw the United States wracked by violence caused by an incipient union-organizing movement clashing with corporate America. To paraphrase Dr. King, those who hold power never surrender it easily. Blood was shed. Congress enacted the NLRA to permit employees to unionize.

Tucked away in the law was the provision that in addition to the right to form a union, employees also have the right "… to engage in other concerted activity for the purpose of mutual aid or protection." In short, employees, regardless if they are seeking to form a union, are empowered to express their work place concerns to an employer about their terms of employment and are protected from employer retaliation for doing so. The shorthand: "protected concerted activity." The key: Two or more employees must complain or one employee can express those concerns on behalf of herself, or herself and others.

The contours of the concept were laid down by the United States Supreme Court in 1962 in NLRB v. Washington Aluminum Co., and were triggered by a painfully cold day in Baltimore. When the workers arrived for a day of fabricating, they discovered that there was no heat in the foundry. They discussed the problem among themselves; told management that they would be unable to work in these conditions; and in an effort to underscore their point they returned home when management told them to get to work. When they did walk out, the result was swift and predictable: wholesale terminations.

Should they not be required to present alternatives to management? No, according to the Court which reasoned that the employees had no trained representative to advocate on their behalf and "… (spoke) for themselves as best they could." But what about the employer's rule that employees could not leave the foundry without the permission of a supervisor? The employees violated this rule and thus, or so the employer's argument went, the violation was a legitimate ground for termination. Not so, said the Court, which did not allow the employer to cha-cha around its legal obligation by the simple expedient of promulgating a rule. Bottom line: protected concerted activity in its purest form.

How else does protected concerted activity pop up? Recall that one employee speaking on behalf of himself and others — over terms of employment — is engaged in protected concerted activity. Look at Central Freight Lines Inc. and Bob Campbell, 267 NLRB No. 180 (1983) for a classic example. (Full disclosure: I tried this case — my first trial — in 1982 as a field attorney for the National Labor Relations Board.) Campbell and his co-workers believed that their supervisor was imposing unjustified package loading quotas on them. Campbell drafted a letter to upper management summarizing their concerns and all his co-workers signed it. Before mailing though Campbell took off the names of his co-workers, and sent the letter with only his signature. But, he kept the "We" in the body of the letter. Campbell's termination was forthcoming as was a lawsuit by the NLRB. Because of evidence of co-worker support for the letter, the Administrative Law Judge trying the case found a violation of the NLRA, later affirmed by the Fifth Circuit.

Here are the mechanics of the NLRA: A claim can only be filed and prosecuted by the National Labor Relations Board; it must be filed with the NLRB within 6 months of an adverse employment action taken against an employee; and trial is conducted in an administrative proceeding. In 1974, a pop song soared on the charts: "Everything Old is New Again" from Peter Allen and Carole Bayer. (For context, I graduated high school in 1971.)  These lines popped up on my recollection: "Don't throw the past away, you might need it some rainy day." For employees in a pandemic world, that rainy day is here and now. The old idea of protected, concerted activity will help inoculate employees from retaliation for spiraling up in defense of their lives.

Michael P. Maslanka is an assistant professor of law at UNT Dallas College of Law. His email is [email protected].