By Richard Hankins

Our friend Kris Dunn of The HR Capitalist is fond of using stories from Major League Baseball to illustrate a point about human resources management. We’ll mimic him here by observing this headline from the world of NASCAR:

DEI employees fired for flying Ginn banner (Raceweek Online, October 22, 2007)

Earlier this year, Dale Earnhardt, Incorporated (DEI), the team founded by the late NASCAR legend, merged with Ginn Racing. As a result of that merger, a reported 70 to 120 Ginn Racing employees were laid off. Rumors soon began to surface that former Ginn employees and others had not received all monies to which they were allegedly entitled. Two drivers and two crew chiefs filed lawsuits alleging breach of contract.

Then, on September 13, 2007, during a race at Lowes Motor Speedway in Concord, North Carolina, a small airplane flew over the racetrack towing a banner with the following message: “How much does Bobby Ginn owe you?”

A week later, the popular racing website Jaski.com reported that “[t]hree DEI employees who allegedly planned and paid for a derogatory banner to fly over Lowe’s Motor Speedway last weekend have been fired.” The employees, Mike Clark, Greg Price, and Kasey Brooks had each worked for Ginn Racing but were retained by DEI after the merger. Jayski quoted DEI general manager John Story as saying: “We addressed the situation internally, dealt with it appropriately and we’re quite frankly embarrassed that this situation ever arose.”

Is Mr. Story correct that the situation was handled “appropriately?” We do not know all of the details, so we can’t answer that question. But we do know that Section 7 of the National Labor Relations Act affords employees the right to engage in “concerted activities for the purpose of . . . mutual aid or protection,” and that the National Labor Relations Board has consistently held that discussion of pay and grievances generally falls within those protections. The United States Court of Appeals for the District of Columbia Circuit recently noted in a case involving Cintas Corporation:

Section 7 of the NLRA guarantees employees 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 . . . .” 29 U.S.C. § 157. Section 8 prohibits employers from “interfer[ing] with, restrain[ing], or coerce[ing] employees in the exercise of [that] right[].” 29 U.S.C. § 158(a)(1). It “necessarily encompasses [employees’] right effectively to communicate with one another regarding self-organization at the jobsite,” Beth Israel Hosp., 437 U.S. at 491, and we have previously enforced its protection of an employee’s right to discuss the terms and conditions of her employment with other employees, see Brockton Hosp. v. NLRB, 294 F.3d 100, 103 (D.C. Cir. 2002), and with nonemployees, see Stanford Hosp.  & Clinics , 325 F.3d at 343.

Paul Secunda, a labor law Professor at the University of Mississippi School of Law and co-editor of Workplace Prof Blog, observed:

Non-union employees have the same Section 7 rights – including the right to engage in concerted activities for mutual aid and protection – as employees seeking to organize a union or who are already in a union. One could argue that what these DEI workers did was protected activity under the NLRA and that the firing was therefore an unfair labor practice.

• Additional Reading: · Cintas Corp. v. NLRB, D.C. Cir., No. 05-1305, 3/16/07