The National Labor Relations Act (NLRA) has the primary purpose of regulating union-management relations. However, nonunion employers must be aware that the NLRA’s provisions apply to all employees. 
Know what’s covered
Protected activity in general. Any group of nonunion employees may engage in activity protected by the NLRA. Whenever employees engage in concerted activity for mutual aid and protection involving wages, hours, and conditions of employment, they are protected by the NLRA. Having union representation isn’t required. You cannot discriminate against employees who engage in such concerted activity.
Social media. When posts on social networking sites are connected with workplace issues, an employee’s speech may be protected even if the workplace isn’t unionized. The National Labor Relations Board (NLRB) has issued two memoranda discussing when social media posts or employer policies on the use of social media violate (or don’t violate) the NLRA.
Employee representation at an investigatory interview. A union employee’s right to have a union representative present at an investigatory meeting that could lead to discipline is known as the Weingarten right. The NLRB has changed its position on whether a nonunion employee has the right to be represented by a coworker at such a meeting, taking the position that nonunion employees don’t have Weingarten rights. However, the newly reconstituted NLRB (now at full strength with five members) may reverse this rule once again.
Employee handbook issues. In recent years, the NLRB has scrutinized employer policies and handbooks during its investigation of unfair labor practice charges, paying particular attention to confidentiality, nonsolicitation, nondisparagement, social media, and even antiharassment policies. Any policy that the Board believes could have a chilling (dissuasive) effect on employees’ concerted activity may be challenged. For example, in 2012, an NLRB administrative law judge (ALJ) held that a statement in the American Red Cross’ at-will policy that it could never be “amended, modified or altered in any way” could chill protected activity and was therefore unlawful. Examine your employment handbook to ensure that it protects your company’s rights while not running afoul of the NLRA.
Employee involvement. Although employee committees are usually well-intentioned and worthwhile endeavors, you must make sure they focus on production and quality issues and don’t become vehicles for dealing with employees on the issues of wages, hours, and terms and conditions of employment. You may deal only with certified bargaining representatives (e.g., a union) on such issues, and you’re prohibited from forming a “company-run union.” Whether or not a particular program runs afoul of the NLRA is a complicated issue. Any employee committee should be carefully reviewed to ensure it complies with the Act.
Posting requirements. The NLRB recently attempted to implement a rule requiring all employers to post a notice of employee rights under the NLRA. The rule was challenged, and a federal district court overturned it. Because of another pending case challenging the appointment of certain NLRB members, the case was held in abeyance (put on hold). Although there are no posting requirements in place at this time, the issue of whether employers must post a notice explaining employees’ NLRA rights may not be dead.
Bottom line
Employers are covered by federal labor law even when employees aren’t represented by a union. To avoid liability, make sure you understand your obligations to both union and nonunion employees under the law.
Gary Fealk is an attorney and shareholder at Vercruysse, Murray & Calzone, P.C., in Detroit. His practice focuses on the areas of labor and employment litigation on behalf of private and public sector employers including cases involving non-competition agreements, discrimination claims, the Fair Labor Standards Act, National Labor Relations Act, OSHA, and ERISA, including multi-employer benefit fund collection actions. You may contact him at gfealk@vmclaw.com.