• Non-Union? Don't Forget the NLRA
  • September 11, 2003 | Author: Timothy B. Kohls
  • Law Firm: Fredrikson & Byron, P.A. - Minneapolis Office
  • We most often identify the National Labor Relations Act (NLRA or the Act) with union-management relations or efforts to unionize a workforce. As discussed in a previous article on "Weingarten" rights, the NLRA also applies to employers with no union-represented employees. Unfamiliarity with the NLRA could result in an unfair labor practice charge.

    Section 7 of the NLRA provides employees the right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The "mutual aid or protection" clause gives employees their hook into the NLRA. In the jargon of the NLRA, employees may engage in "concerted, protected activities." As the name implies, there are two prerequisites for protection.

    First, the activity must be concerted. Only activities that are planned or undertaken by two or more employees working together fall under the NLRA's protection. However, employees who lead or speak for other employees are considered to be acting with the employees they lead or for whom they speak. For instance, if several employees collectively decide to ask for additional vacation time per pay period, they may all receive NLRA protection even if only one brings the concern to management's attention. An employee who attempts to instigate a protest is deemed to be engaged in concerted activity under the NLRA even if no other employee joins the cause.

    Second, the activity must be for the employees' "mutual aid or protection." Not all concerted activities meet this requirement. "The test for determining whether an employee's activity is protected within the mutual aid or protection clause is not whether it relates to employees' concerns generally but whether it relates to 'the interests of employees qua employees.'" Harrah's Lake Tahoe Resort Casino (quoting G&W Electric Specialty, Co.) That is to say, the concerted activity must be related to the employees' wages, hours, or other terms and conditions of employment. Employees cannot gain NLRA protection by trying to alter a company's marketing strategy.

    Examples of protected activities include:

    Employee Petitions

    Petitions or group protests to the employer regarding terms and conditions of employment are the classic example of a concerted, protected activity. For example, if employees distribute a petition asking the employer for a pay raise, an extra vacation day, or a longer lunch break, that activity is protected.

    Contacting Government Agencies

    Employees may also gain protection by making group complaints to federal or state agencies regarding working conditions. For instance, if two or more employees file a complaint with OSHA regarding an allegedly hazardous condition on the production floor, their complaint is protected by the NLRA - even if it later turns out not to have merit.

    Strikes

    Contrary to some belief, nothing limits strikes to non-union employers. Typically, non-union strikes are called concerted work stoppages. Although in most cases the employees do not have to give prior notice, they generally must make some demand or inform the employer of the reason for the protest. The general rules that apply to strikes apply to concerted work stoppages as well. For instance, employers can permanently replace the employees engaged in the work stoppage.

    Employee Meetings

    Employees are free to meet with each other to discuss their working conditions. Employers sometimes attempt to prevent employees from discussing compensation to protect confidentiality. These policies generally violate the NLRA. If meetings take place on employer property, however, the employer may restrict such activities to non-work time and non-work places.

    Complaints about Supervisors

    An employer's supervisory structure is generally at the management's discretion. However, in very limited circumstances, employee protests to have a supervisor removed may gain the Act's protection. The supervisor in question must maintain some direct control of the employees' working conditions; this most often applies only to the direct supervisor. Just because employees engage in concerted, protected activities, does not mean employers must give in to their demands. The NLRA simply prohibits an employer from retaliating against the employees for making demands. It does not give employees the right to control the workplace.

    Examples of unprotected activity include:

    Partial Strikes

    Employees may be lawfully disciplined or discharged for engaging in work slow-downs, partial strikes, or sit-down strikes. Employees who withhold their services must do so unequivocally. Employees can choose to perform their jobs completely or to engage in a full strike. They cannot simply refuse to perform some assignments. Intermittent strikes are generally considered to be partial strikes. If employees decide to engage in a full strike, they must leave the employer's property.

    Illegal Activities

    Employees cannot seek protection under the NLRA for engaging in illegal activities, such as violence, threats of violence, sabotaging employer property or other acts of vandalism. Employees who refuse to leave the employer's premises after initiating a strike may be disciplined for trespassing.

    Defamation

    Although employees may publicly criticize their employers as it relates to their terms and conditions of employment, they are not permitted to lie or make defamatory statements.

    Finally, the NLRA only protects employees who engage in concerted, protected activities. Supervisors, managers, and independent contractors are not afforded any protection under the Act; they may be disciplined or discharged regardless of the concerted nature of the activities.

    NLRA protection often depends on the particular facts of a case. If you have questions regarding any collective activities by your employees, be sure to contact your legal counsel before initiating disciplinary action.