How are employers affected by the NLRA? For most non-union employers, the National Labor Relations Act (NLRA or Act) is probably not the federal statute that has been at the top of their watch list in recent years. With union membership at a historical low point, employers in the US concern themselves with other state and federal laws that impact their HR policies and HR practices more so than the NLRA.
What Is the NLRA and What Would Violate the NLRA?
Passed in 1935 and subsequently amended in 1947, the National Labor Relations Act is the federal law that governs labor relations in United States-based private companies that meet certain revenue standards. If an employer is covered by the Act, its employees will have the right to organize a union; to bargain collectively over wages, hours and working conditions through a representative of the employees’ choosing; and to engage in strikes, picketing, and other “concerted activities for mutual aid and protection.” Further, an employer cannot interfere with those rights or retaliate against employees for exercising them.
In other words, the NLRA covers only unionized companies, right? Well, if you agree with that statement I am sorry to tell you but you’re incorrect. The NLRA was intended to protect associational rights of “non-union” employees as well as “union” employees. In other words, NLRA rights for non-union employees are protected under the Act, as well, and may engage in protected, concerted activity in situations other than traditional union organizing and collective bargaining.
This blog post serves as a reminder that it is very much possible to commit NLRA violations without a union presence in the workplace.
What Types of Non-Traditional Employee Actions Are Protected by The National Labor Relations Act?
The National Labor Relations Act vests all employees, regardless of whether they are represented by a union, with the right to engage in “protected, concerted activity.” Specifically, Section 7 of the Act provides:
“Employees shall have the right to self-organization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities….”
Two points therefore to keep in mind:
1. The National Labor Relations Act section 7 rulings give covered employees the right to engage in concerted activities even though no union activity is involved and even though no collective bargaining is being contemplated by the employees involved; and,
2. The definition of “protected, concerted activity” has been construed by the National Labor Relations Board (the federal agency vested with the authority to enforce the Act) quite broadly.
What Is “Concerted Activity?”
Essentially, “concerted activity” is any activity by individual employees who are united in furtherance of a common concern regarding any term or condition of employment. For an employee’s activity to be “concerted,” the action must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself/herself. An employee’s conduct is not “concerted” unless it is engaged in with or on authority of other employees.
What Is “Protected, Concerted Activity?”
We all know that it is unlawful to discharge or otherwise discriminate against employees because of their union activities. But, the law also protects employees from discharge or discrimination because of their participation in protected, concerted activities unrelated to union organizing or collective bargaining.
Some examples of unfair labor practices that violate non-union employee’s Section 7 rights include:
• An employer terminated a sales employee for being an “outspoken critic” when his employer required him and others to attend special two-hour meetings before store hours without compensation. The sales employee was awarded reinstatement with full back pay.
• An employer terminated two employees who wrote a letter protesting a change in their method of compensation. Both employees were awarded reinstatement with full back pay.
• A restaurant owner discharged an employee who complained about the employer’s tip pool system. The employee was awarded reinstatement with full back pay.
Can You Stop Employees from Discussing Their Wages?
Can non-union employers, by policy, prohibit employees from discussing their wages or other terms of employment?
It is not uncommon for employers to attempt to prohibit employees from discussing their wages or other terms of employment with their co-workers. The question or issue raised is whether or not such a policy and practice by a non-union employer can lead to allegations of unfair labor practices against them.
Because of the NLRB’s broad interpretation of what is “protected, concerted activity,” it has determined that such a policy in fact interferes with employees attempting to exercise their Section 7 rights under the Act. In a case involving the Main Street Terrace Care Center, an NLRB Administrative Law Judge found that when Main Street rolled out a policy prohibiting employees from discussing their wages, it had violated its employees’ rights under the NLRA. The Administrative Law Judge wrote that “the mere existence of the rule inhibiting protected conduct, even if not enforced, constitutes an unlawful interference in violation of the Act.” The NLRB affirmed the Administrative Law Judge’s ruling and its petition for enforcement was supported by the Sixth Circuit Court of Appeals.
In a 2005 case involving Cintas Corporation, the NLRB reaffirmed its position previously issued in Main Street.
Is the Paycheck Fairness Act Far Behind?
Although not likely to be acted on by the Senate at the soonest, spring of next year, another disparate pay bill, the Paycheck Fairness Act (H.R. 12) may be on the horizon. Passed by the House on June 9, 2009 by a vote of 256-163, employers would be prohibited from retaliating against employees who have “inquired, discussed or disclosed the wages of the employee or another employee.” The retaliation provision, however, does not apply to instances where an employee who has “access to the wage information of other employees as a part of that employee’s essential job functions” discloses those wages to individuals who do not otherwise have access to such information, i.e. HR professionals.
The unsuspecting employer need not be caught off guard by unfair labor practice charges in the context other than traditional union organizing attempts or during collective bargaining. Because employees are ever more enlightened today of their legal rights and privileges, it is critical for all employers to exercise care when their employees engage in conduct that could be perceived as “concerted activity.”
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