What Union-Free Employers Need to Know About the National Labor Relations Act
Most employers are aware that the National Labor Relations Act (“NLRA”) protects the right of employees to form, join, or support labor unions. But unbeknownst to many employers, the NLRA protects not only union-represented workers but also employees who engage in “concerted activities for mutual aid and protection,” even when there is no union on the scene.
When two or more workers join together in seeking improved conditions of employment from their employer, they are engaged in “concerted activities” to obtain “aid” for the employees in the way of better working conditions, and they therefore are protected by the NLRA. Most significantly, the NLRA prohibits adverse action, such as discharge, demotion or discipline, against employees in retaliation for these concerted demands for better conditions. The NLRA authorizes the National Labor Relations Board (“NLRB”) to reinstate and recover back pay with interest for a worker discriminated against by an employer because of employees’ concerted efforts to secure better conditions; and NLRB orders in such unfair labor practice cases are legally enforced against employers in the United States Court of Appeals.
Here are some examples of “concerted activity” in which employees may engage under the protection of the NLRA.
Concerted Complaints – Perhaps the most common form of “concerted activity” in which employees engage in a union-free context is a complaint by two or more employees jointly seeking to improve wages, benefits, discipline practices, or conditions such as a workplace that is too hot in the summer, too cold in the winter, or has unsafe equipment. Two or more employees joining together to present such a complaint to a foreman, supervisor or higher management are engaged in protected concerted activities. Even if only one person, acting as a spokesman for any group of two or more, presents the complaint alone, not only the spokesperson but the others who have authorized his or her expression of employee concern are protected. Additionally, a simple discussion among workers about working conditions, even when not phrased in terms of a current complaint, can be protected, particularly where the discussion is preparatory to further efforts to improve the employees’ working conditions.
Solicitation and Distribution – The preparation and distribution of letters, leaflets or other literature about working conditions are protected activities. Distribution of such materials among co-workers is protected so long as it does not violate validly promulgated no-solicitation rules. And, the NLRA imposes significant limits on the kinds of no-solicitation rules an employer may adopt. Generally, an employer may prohibit solicitation activity only on the employee’s work time, and may prohibit the distribution of literature either on working time or in working areas at any time. (Working time excludes coffee and rest breaks, meal periods, and on-premises time before and after work; working areas exclude parking lots, locker rooms and break and lunch rooms and the like.) No-solicitation rules that are broader in scope – such as a rule that prohibits solicitation by employees at any time, anywhere on the employer’s premises – violate the NLRA.
Confidentiality – Although many employers consider information relating to wages and benefits to be confidential, the NLRA protects employee discussion of their own wages and benefits. Confidentiality requirements may be imposed on payroll and human resources workers and others who obtain information about co-workers’ wages and benefits in the course of their employment duties; however, confidentially rules cannot lawfully prohibit a worker from discussing his or her own pay, benefits and other terms of employment with co-workers.
Chain of Command – Workers’ concerted complaints cannot be restricted to the employee’s “chain-of-command.” Employees must be permitted to “jump” above the chain-of-command and make their concerted complaint, for example, to the chief executive officer, or anyone else in management to whom they may wish to direct their communication. The employees’ complaint is protected by the NLRA regardless of the sensibilities of senior or subordinate management personnel.
Consumer Boycott – An employer understandably may have difficulty accepting that its employees may talk with customers or vendors regarding workplace problems, and the employer may wish to stop such conduct before it injures the employer’s business relationships. Taking action against employees for this form of “disloyalty” may run afoul of the NLRA. The worker making such complaints can be prohibited from doing so on work time, so long as non-solicitation rules are applied to all non-work related solicitation activities on work time; but workers cannot be prohibited from promoting their self-interests, even by expressing their complaints to customers and vendors.
Union-free Strikes – Although rare, the NLRA permits two or more union-free workers to engage in a strike against their employer to obtain improved conditions of work.
A “sympathy strike” is one where employees go on strike by making common cause with a separate group of workers who are already on strike for their own benefit. The second group of strikers are “in sympathy” with the original strikers, and share their protection under the NLRA. Even if there is only a single sympathy striker, his or her combination with the other group of strikers makes for protected concerted activity on behalf of the sympathy striker.
A more common form of sympathy strike is a worker’s refusal to cross the picket line of another union. Such a refusal to cross a picket line, assuming that the union’s picket line is otherwise lawful, is a protected sympathy strike and the worker refusing to cross the line is protected from discharge by the NLRA.
Of course, although such strikers cannot lawfully be fired, the struck employer is not entirely stymied from having its work completed. Every striker or sympathy striker can be replaced by a worker willing to perform the striker’s duties. And the employer will have no obligation to reinstate the striker unless and until the first offers to return to work. Even at that point, in most cases if permanent replacements have been hired, then the striker is not entitled to return to work until the replacement has left the striker’s job or a similar new job that the ex-striker is capable to perform becomes available. And if temporary replacements for the strikers have been hired, the employer is allowed five days to arrange for the striker to return following his or her offer to come back to work.
Participation in an NLRB Proceeding – The NLRB is very protective of employees who file charges of unfair labor practices or who are witnesses in support of a co-worker’s charge or in other NLRB proceedings. The NLRA contains a separate section specifically protecting such employees from retaliatory employment actions, regardless of whether they are supporting or opposing a labor union or even if no labor union whatsoever is involved in the matter.
These many rules under the NLRA establish the principle that employees who engage in efforts to raise co-workers’ awareness of, and to bring to the attention of management, their mutual concerns about conditions of employment, are protected from retaliation in their employment. And because the jurisdiction of the NLRB extends to all but the smallest employers in private industry throughout the United States, all employers — both unionized and union-free – need to be aware of the constraints imposed by the NLRA.