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What Every Non Union Employer Needs To Know About The NLRA

May 4, 2015


May 4, 2015

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The National Labor Relations Act (NLRA) was enacted primarily to enable employees to join labor unions without undue interference from their employers. For the past 80 years since its enactment, the most visible application of NLRA has been on employers with union workers.

As such, most non-union employers have been lulled into a false sense of security – thinking that the NLRA doesn’t apply to them. Those unfortunate enough to run afoul of the NLRA realize its relevance too late – after they have been slapped with an Unfair Labor Practice (ULP). In most cases, the ULP leads to a National Labor Relations Board (NLRB) sanctions which have financial and reputational costs for the employer.

To avoid running afoul of the NLRA, every non-union employer needs to understand the provisions which apply to them. They also need to know how to avoid crossing the provisions which apply to NLRA non union employers. Fortunately, these provisions are quite straightforward.

They are summarized below:

Non-Union Employee Actions Protected By NLRA

The rights of both union and non-union employees to associate are enshrined in Section 7 of the NLRA. It reads in part as follows:

“Employees shall have 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 . . . .”

Legal experts have interpreted the part starting from “to engage in other concerted activities” as applying to non-union employees. As such, the first step towards understanding NLRA provisions for non union employers is to identify which employee actions can qualify to be “concerted activities.”

A concerted activity is simply an action carried out by an employee on behalf of, or in collusion with fellow employees. In this context, the activity has to be aimed at collective bargaining or improving their working conditions.

One common example which many non-union employers fall afoul of is disclosure of employment terms to fellow employees. Some employers set confidentiality clauses which state that employees cannot discuss their pay and other terms with fellow employees. Under the NLRA, this is illegal. The Act offers employees the right to discuss employment terms among themselves.

The best way to identify which employee actions are protected by NLRA is to through previous applications of the Act. However, here are a few examples of employee actions which led to severe sanctions from their employers.

Each of these were investigated by NLRB and ruled in favor of the employee:

  • a salesman being an outspoken critic of a 2 hour mandatory meeting which all salespeople were obligated to attend without pay
  • two employees composing a letter protesting a change in compensation
  • an employee sending a letter to a parent company complaining about working conditions and bonuses
  • two employees telling a third party that the employer’s refusal to hire someone was because of racial bias
  • employees who gave affidavits to a sheriff alleging embezzlement by the company president
  • a waiter complaining about a restaurant’s tip pool system

In each of the above cases, the employees had their employment terminated for carrying out the said actions. After an NLRB investigation, the employers were found guilty of ULP and the employees were reinstated with back pay, interest and no loss of seniority.

The bottom line is that there are actions carried out by non-union employees which are protected under the NLRA. As such, a prudent employer thinks twice before taking drastic measures in response to these actions. At a minimum, they observe the investigative procedures which are recommended for such actions under NLRA.

Procedures for Investigating NLRA Protected Activities

NLRA Protection doesn’t provide employees with a blank check to carry out deliberately subversive or disruptive activities. As such, it empowers employers to carry out remedial or even disciplinary actions in response to such activities. However, any disciplinary actions have to follow an investigation which is carried out according to NLRA guidelines.

The main NLRA requirement is the right of the accused employee to have another employee present during the investigative interviews. Let’s assume that there are two employees called Peter and Sean.

If Peter is being interviewed in an investigation about certain concerted activities, he has the right to request that Sean is present during the interviews.

If Sean is prevented from attending the investigative procedures even after Peter has requested, then the investigations will have been carried out in violation of NLRA guidelines.

Once Peter has requested for Sean to be present, he has a right to refuse answering any questions until Sean arrives. In case Sean cannot be found at that time, the interview has to be postponed (and any final decision delayed) until a time when he can be present.

During the interviews, Sean has the right to advise Peter on how to answer the questions. He also has a right to interrupt, ask for clarification of any question and object to any intimidating tactics the investigator.

It is important to note that at the onset of interviews, the investigator isn’t obligated to inform Peter that he has the right to demand another employee to be present. However, if Peter requests for their presence, then the investigator cannot deny him that right.

The bottom line is that NLRA provides strict guidelines which have to be followed when investigating concerted activities. Non-union employers are well-advised to follow these guidelines. Otherwise, even if they have a solid case, the failure to follow the proper guidelines can invalidate a genuine decision.

A Quick NLRA Checklist For Non Union Employers

Violating the NLRA provisions is often an error of omission rather than commission. Sometimes employers are caught unawares. As such, every employer needs a quick checklist for identifying if an activity is protected under NLRA.

Answering these three questions can help shed some light:

  1. Is the activity concerted? (In other words, was it performed by two or more employees, or by a single employee on behalf of others?)
  2. Is the activity carried out for mutual interest or protection?
  3. Does the employer feel motivated to act in response to the activity?

If the answer to each of the above questions is YES, then chances are high that the activity in question is protected under NLRA. As such, rather than taking a drastic action on impulse, the employer needs to think of a tactical way to handle the situation. After all, there is nothing as embarrassing as disciplining an employee only to have the NLRB reverse decision and award the employee a financial compensation.

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