Non-Union Employers Should Understand the NLRA

With the specter of change looming over federal labor law in the form of the Employee Free Choice Act (EFCA), many non-union employers have had occasion to consider the National Labor Relations Act (NLRA). Regardless of whether the EFCA passes, non-union employers should maintain a healthy interest in the NLRA for one, simple reason: every employee has rights under it, irrespective of whether the workforce is unionized.

Under the NLRA, all employees have the right to self-organization; to form, join or assist labor organizations; to bargain collectively; and engage in other concerted activities for the purpose of “other mutual aid or protection.” These rights are commonly referred to as “Section 7 Rights.” The language of Section 7 of the NLRA makes clear that these rights exist independently of whether employees are actually organized. Consequently, employers that have never had a unionized workforce can still violate these rights if not sensitive to how they can be impacted in a non-union setting.

Employers may not interfere with, restrain or coerce employees with respect to their Section 7 rights. Additionally, the NLRA prohibits employers from discriminating against employees for exercising their Section 7 rights. These provisions can combine to create liability for uninformed employers. Employer policies that are “likely to have a chilling effect on Section 7 rights” may be viewed as an unfair labor practice, even absent evidence of enforcement.

In other words, an employer policy can violate the NLRA on its face, even if it has never served as the basis for employee discipline. This danger can be particularly acute with respect to several common employer policies.