The NLRA for Non-Union Employers.

The NLRA

According to the Bureau of Labor Statistics, only about 7.1 million private sector employees are represented by a union. The National Labor Relations Act of 1935, also known as the Wagner Act, is the fundamental law governing employee and labor relations. This law is commonly referred to as the NLRA, but just because you don’t have union employees doesn’t mean you can ignore it.

After decades of dramatic and sometimes violent labor disputes and litigation, Congress enacted the NLRA in 1935 as part of President Roosevelt’s new deal. The NLRA guarantees nearly all employees’ right to organize or bargain collectively with their employers. The NLRA protects employees’ right to engage in protected, concerted activity even if they are not union members.

NLRA Protections

The National Labor Relations Act guarantee’s an employee’s right to form, advocate, and join or not join a union. The Act applies to both union and non-union employees. And the Act contains several rights of employees listed under Section 7.

In addition, the NLRA contains various prohibited employer labor practices. The National Labor Relations Board oversees secret ballot elections and resolves unfair labor practices.

NLRA Rights

Congress passed the NLRA to protect the rights of employees and employers. Still, amendments to the NLRA over the years have not changed the fundamental underlying employee right to form a union and engage in the concerted activity are mostly unchanged.

The NLRA also includes the right to encourage collective bargaining and to limit some labor and management practices. This and other subsequent laws are the central rules for employment and labor relations. National Labor Relations Act prohibits several practices by employees, unions, and employers and requires fair labor practices.

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Who Is Covered Under the NLRA?

Nearly all American workers have protections under the NLRA. However, some industries such as railroad and airline employees fall under different labor relations laws such as the Railway Labor Act. 

State laws and regulations govern the state and municipal public employee labor rights. There’s no fundamental law similar to the NLRA for federal employees. However, many federal laws address national employee unions. 

The NLRA doesn’t usually cover supervisors, but supervisors who face discrimination for refusing to violate the NLRA may be protected. An employee is a supervisor under the NLRA if they have the authority to hire and fire employees, whether they can manage employees directly or recommend tangible employment actions or resolve employee grievances.

NLRA Section 7 Rights

Under Section 7 of the NLRA, employees have the right to engage in concerted activity for their mutual aid and protection, the right to self-organization, the right to form, join or assist a labor organization, the right to bargain collectively through their representatives, and the right to abstain from all of the above activities. 

The critical part of an employee’s Section 7 rights under the NLRA is that these rights apply to all non-supervisory workers, not just unionized workforces.

NLRA Section 8 Protections

The NLRA also prohibits unfair labor practices committed by employers. When an employer, whether union or non-union, violates employee rights, it commits an unfair labor practice. It is illegal to interfere or restrain employee protected Section 7 rights. It is also prohibited to discriminate against or discourage labor organization membership or dominate or interfere with a labor union or labor organization.

When the NLRB or a court responds to an unfair labor practice, it can require various remedial actions such as requiring workplace notices, rehiring illegally terminated employees, fines, back pay, or forcing an employer to acknowledge and bargain with the labor union.

NLRA Posting Requirements

To increase awareness of NLRA rights, the NLRB attempted to require that all employers post a notice of employee rights under the NLRA. However, an appellate court canceled the NLRB’s proposed rule requiring this notice. Still, most federal contractors and subcontractors are required to inform employees of their rights under the NLRA. While regular employers do not require the notice, they should understand employee rights under the National Labor Relations Act. It will apply to their workforce, whether union or non-union.

Policy Precautions

NLRA Policies

Overly broad activity restrictions or other policies that violate employee rights under the NLRA cause the most labor problems for non-union employers. The most common policy that violates NLRA prohibits employees from discussing their wages, benefits, or other terms of employment conditions. This sort of policy is illegal because it directly prevents employees from engaging in an activity for mutual aid and protection purposes. Policies that restrict gossip are another current target of the National Labor Relations Board for the same reasons. 

A solicitation policy or anti-distribution policy is allowable but will not protect against union solicitation. In other words, if you let the employees use company email for personal activities, it would be challenging to prevent the use of your email for union, organized and concerted action. 

The NLRB is active in this area and even enforces these rules against overly broad social media confidentiality or other employee conduct policies. 

Precautions for Employee Committees and Groups

Employers need to be careful to make sure they don’t support employee committees and groups that are considered labor organizations

Remember that one of the unfair labor practices is that an employer cannot dominate or support a labor organization. It is an unfair labor practice for an employer to interfere with the formation or administration of any labor organization or contribute financial support.

A group qualifies as a labor organization if it meets the following criteria:

  • Employees participate,
  • the organization exists to deal with the employer
  • The dealings concerned conditions of work, grievances, labor disputes, wages, rates of pay, or hours of employment. 

Legitimate safety committees or employee engagement groups should not handle issues that deal with bargaining over employee benefits, wages, or working conditions. 

Safety committees, employee engagement, or other involvement committees should clarify that no one acts as a representative of any employees.

Don’t allow committees to make proposals to management on behalf of employees. In other words, these committees should be brainstorming sessions, not groups that make proposals to management. This advice does not apply to shared brainstorming sessions, information-sharing groups, suggestion boxes, or other decentralized management methods.

Right to Work Laws

The Labor-Management Relations Act of 1947 or Taft-Hartley Act revised sections of the NLRA to allow states to pass laws that control union security clauses. More than 24 states have passed these laws that prevent workers from being compelled as a condition of employment to join or not join or not to pay dues to a labor union.

Employees in these states can leave a union and avoid dues and maintain employment depending on the circumstances. The weakening of the union security clauses has significantly reduced union membership in these states.

Handing an Organizing Campaign

A union organizational campaign can be scary for an employer who does not understand the NLRA or union election process. Remember, you should avoid discrimination against any employee for their support or non-support of a union.

Your executive team, supervisors, and other management members will need to understand what they should or should not say during this process. And remember, both employees and employers should ensure that they know they are not obligated to sign the agreements and shouldn’t sign agreements that they don’t understand.

Remember, the union only needs to get 30% of eligible voters to sign an authorization card to begin the election process. And also, those authorization cards never expire once an employee signs them.

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What To Do About Organizing Activity

So what should you do about union organization activity? Well, it’s essential to act quickly but very carefully. Remember not to discriminate against employees for exercising their rights or supporting or not supporting a union. 

Next, the company’s position on unionization should focus on facts, opinions, results, and experience. Make sure to course train your managers on unfair labor practices because you can be held liable for their actions. And you should also protect employee data and information because the union may want this information to assist in their organizational efforts. You should also ensure consistent and legal management messaging. And lastly, you should consult with a labor relation or management attorney or an experienced HR professional

Employer Rights and Responsibilities Under the NLRA

When a member of management expresses an opinion, it should not include threats or promises regarding union activity results. It’s OK to have an open expression on the company’s position, but it should not involve threats or promises. Also, employers can file an unfair labor practice complaint against a union. An employer can certainly protect the company property, and of course, terminate or discipline employees for just causes.

Strikes and Other Protests

A union employee’s right to strike is part of the right to organize. Specific strikes qualify as protected activity under the NLRA, but the act does not protect all strikes. A unionized employee’s right to reinstatement after a strike ends depends on the type of strike and the underlying reasons.

Employers can hire replacement workers during unfair labor practice strikes and economic strikes. And union members lose protection when they engage in strikes that are considered unlawful under the NLRA, such as strikes that endangers employer’s property or strikes to force the acceptance of illegal labor practices such as no-show jobs or featherbedding.

The NLRA protects the right to strike and picket and the employer’s right to operate during the strike. Other rights under the Act include the right of employees not to cross the picket line, the right of management to continue operations with non-striking employees, with supervisors or replacements.

And federal regulators have ruled that union activists have the right to display signs and props like giant rats outside companies during labor disputes. Using these objects in labor protests constitutes protected speech under the 1st Amendment.

Conclusion

Remember, just because you don’t have union employees doesn’t mean you can ignore the NLRA. All employers need to know how sections 7 and 8 of the NLRA apply to them. Be careful not to inadvertently discriminate against your employees for engaging in protected behavior. Take a look at your policies to make sure that they comply with the NLRA and make sure to train your managers on how to handle protected activity, especially if your employees are talking about unionizing.

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