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Do I have to be a member of a union to be protected under the National Labor Relations Act?

Does the National Labor Relations Act Apply If My Employer Is Not Unionized?

Do I have to be a member of a union to be protected under the National Labor Relations Act?The National Labor Relations Act (NLRA) covers most employers whose workforce is unionized or whose employees are organizing a union, but it also applies in situations where neither is the case. The NLRA is enforced by the federal National Labor Relations Board (NLRB), which may get involved if employees, formally unionized or not, take part in “protected concerted activity” or if an employer creates conditions that may illegally discourage that activity or union organizing.

Employers ignore the NLRA and the NLRB at their peril. Though the agency is overworked and understaffed, as many employment-related government agencies are, they can both bark and bite. The NLRB exists to protect the rights of private-sector employees under the NLRA to join together, with or without a union, to improve their wages and working conditions.

Employee Rights Under the NLRA

Employees banding togetherThe NLRA creates rights for employees, including the rights to form, join, decertify (vote to remove a union from a workplace), help a labor organization, and join together to bargain collectively through representatives of their own choosing. It also gives employees the right to refrain from such activities. Employees can also work together (“concerted activity”) to improve their terms and conditions of employment without a union getting involved.

“Concerted activity” includes the following:

  • talking with co-workers about wages, benefits, or other working conditions;
  • circulating a petition seeking better hours, work conditions, or pay;
  • participating in a concerted refusal to work in unsafe conditions; and
  • joining with co-workers to talk directly to management, a government agency, or the media about problems in your workplace.

Your employer cannot fire, discipline, threaten you for, or coercively question you about this “protected concerted activity.” However, you can lose this legal protection if you state things about your employer that are egregiously offensive or knowingly and maliciously false, or if you publicly disparage your employer’s products or services without relating your complaints to any labor controversy.

The NLRA further prohibits employers from interfering with employees exercising their rights to form, join, or assist a labor organization for collective bargaining or working together to improve terms and conditions of employment.

The NLRB’s Role and Its Interpretations of the NLRA

The NLRB plays many roles, including investigating charges filed by employees, union representatives, and employers who claim that their rights under the NLRA have been violated. If, after an investigation, the NLRB finds merit in the case, the agency tries to have the parties resolve the dispute. If no resolution is reached, the claim can be adjudicated by an administrative law judge or by the Board itself, whose five members are appointed by the President and confirmed by the Senate. If an NLRB order is not followed, the agency can seek enforcement in a federal appellate court.

The NLRB has issued several interpretations of the NLRA that affect virtually every workplace, even where the existence or organization of a union was never imagined. For example, workers have the right to discuss with each other the terms and conditions of their employment, including wages, benefits, assignments, treatment by supervisors, and so forth. If the employer has confidentiality provisions in employee handbooks or contracts that are overly broad and prohibit disclosing personnel or employee information, such as pay or disciplinary actions, those provisions would likely violate the NLRA.

Employees have a right to criticize their employer’s treatment of them, so an employer’s policy discouraging employees from doing so would likely violate the NRLA, even where no union exists. Similarly, policies prohibiting “negative” or “inappropriate” discussions among employees would also violate the NLRA, because employees have the right to argue among one another about unions, the company, and their terms and conditions of employment. This includes postings on social media (but not on accounts owned by the employer) meant to foster communications among employees. Employees can discuss work-related issues and share information about pay, benefits, and working conditions with co-workers on social media, but individually complaining about some aspect of work is not a protected “concerted activity.” To be protected, posts must concern group action or seek to start, encourage, or prepare for group action, including bringing a group complaint to management.

The NLRA may also be violated by an employer’s policies prohibiting employees from causing or creating a disruption during working hours, because these prohibitions could be seen as either barring an employee’s right to engage in a protected work stoppage or discouraging an employee from attending a meeting related to “protected concerted activity.” Employees with employer-provided e-mail accounts have a right to use that e-mail during off hours for nonbusiness purposes, including activities covered by the NLRA.

Employment agreements requiring workers to waive class or collective action in favor of arbitration violate the NLRA, regardless of whether they are deemed voluntary. For instance, an employer’s requirement that disputes over terms and conditions of employment be resolved by discussion directly with management (as opposed to using collective action) can be seen to preclude bringing issues to the NLRB.

Finally, a policy requiring the use of only English in a workplace has been found acceptable by the Equal Employment Opportunity Commission if such a policy is a “business necessity.” The NLRB, on the other hand, has concluded that a company’s language policy could be overbroad if it requires employees to use exclusively English when near customers, when communicating with co-workers, or while on duty. The NLRB decided that a lack of clarity around the time and location of the language ban could discourage employees from exercising their collective rights in their native language.

Summing It Up

If you feel that your employer has violated your rights under the NLRA, you can file a complaint. Before you do so, the NLRB advises that you contact one of its regional offices. The nearest ones are in the District of Columbia and Baltimore.

The NLRA is a powerful law if used correctly and in the right circumstances. It protects group action and attempts to start group action to address workplace conditions, hours, and pay. Workers do need to be careful when exercising these rights, though, for two reasons:

  1. The NLRB’s interpretations of the law are not universally accepted by all federal courts. Just because the NLRB sees things one way doesn’t mean that the judge will agree if the issue ends up in court.
  2. Although the NLRB may see workplace disruptions as allowable, these disruptions aren’t something you want to initiate lightly or on a whim. Resolving issues through reason and negotiation is the best way to start, holding more aggressive tactics in reserve.

Before taking matters into your own hands, contact our office so we can talk about your rights to seek change through collective action, with or without a union. We can help you balance the need for improvements at work with the risks of discipline or even termination for conduct that may be beyond the NLRA’s protections.

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