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phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The
Georgetown Law Journal, Mar 2000 by Yamada, David C
In its current form, however, the NLRA is a limited ally in the battle against workplace bullying. Some of the main impediments are discussed below.
1. Jurisdictional Limitations
The NLRA's jurisdictional requirements place severe limits on the types of workers who are statutorily protected to organize and join unions and engage in concerted activity. Expressly excluded from the NLRA's protections are supervisors, independent contractors, domestic and agricultural workers, and family member employees.296 In addition, the U.S. Supreme Court has held that managerial and confidential employees are excluded as well.297 One study has concluded that approximately fifty million workers, representing forty-three percent of the workforce, are exempted from exercising rights granted in the NLRA.298
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The exclusion of supervisors and managers from statutory coverage is particularly disturbing in this context, for such individuals are certainly not immune from workplace bullying. Nevertheless, for example, a group of assistant managers who have been treated abusively by their supervisor would not be protected by the NLRA's concerted activity provision in the event that they banded together to confront such behavior. Similarly, independent contractors are not covered by the statute, even though as members of the so-called contingent workforce, they may be especially vulnerable to abusive treatment.
The Supreme Court's decision in NLRB v. Health Care & Retirement Corp. of America299 offers a particularly helpful illustration of how the jurisdictional limitations of the NLRA preclude collective action by those who are in an occupation in which bullying is common. The Court found that nurses who supervised nurse's assistants were "supervisors" under the NLRA and, therefore, could not claim protection for collective bargaining ar other concerted activities.300 In view of studies suggesting that verbally abusive behavior by physicians toward nurses is commonplace,301 it is unlikely that many nurses feel like autonomous "bosses" simply because they may supervise the work of those who are a rung lower on the organizational chart. Yet many nurses may be excluded from the NLRA's protections by that mere fact.
2. Concerted Activity
The concerted activity provision of the NLRA offers potential protection of employees who undertake collective measures to oppose workplace bullying. Section 7 of the NLRA provides that employees have the right "to engage in . . . concerted activities for the purpose of . . . mutual aid or protection."302 Employers may not "interfere with; restrain, or coerce employees" who are exercising this right.303 This provision applies to all workers who meet the statutory definition of "employee," not just those who are union members.304 Potentially, groups of employees, regardless of whether or not they are union members, could collectively address problems of work abuse and approach their employer with their concerns and ideas. Such activity would be protected under Section 7 because it would be "concerted" for the purpose of "mutual aid or protection."305
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