“But my employees aren’t unionized!” is a frequent exclamation uttered by employers when they learn they’ve been charged with violating their nonunion employees’ Section 7 rights under the National Labor Relations Act (NLRA). It’s a surprisingly little-known fact that the NLRA applies equally to union and nonunion workers. Accordingly, nonunion employers are very susceptible to inadvertent and potentially costly violations of the NLRA. It’s therefore worthwhile for all employers to have a general understanding of what types of conduct are and aren’t protected by Section 7.
Determining whether you’re covered by the NLRA is a bit more complex than determining the application of most other employment statutes, which often base coverage on the number of employees you have. Coverage under the NLRA is based on your involvement in interstate commerce and is largely dependent on the type of business you’re engaged in and the company’s specific economic impact. If you aren’t sure if your business is covered by the NLRA, contact a labor and employment law professional to determine whether the Act applies to you.
Section 7: the right to conspire
The cornerstone right afforded to employees under the NLRA is laid out in 29 U.S.C. § 157, referred to as “Section 7.” Section 7 provides:
Employees shall have the right to self-organization, to form, join, or assist a labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection.
Most employers are aware that the NLRA affords employees the right to organize and to form unions. What many employers don’t realize, however, is that Section 7’s right to “engage in other concerted activities” for the purpose of “mutual aid and protection” is afforded to employees regardless of whether they are involved with a union. In other words, if your company is covered by the NLRA, your employees have a very broad right to engage in concerted activities for their mutual aid and protection.
“Concerted activity” is any activity by individual employees who unite in pursuit of a common goal. To be deemed “concerted,” the activity must be engaged in with or on the authority of other employees, not solely by and on behalf of the employee himself. Put most simply, an employee complaining that he should get a raise isn’t engaged in protected “concerted” activity. However, the same employee complaining that his department deserves a raise may be engaged in protected concerted activity.
If an employer interferes with an employee’s protected concerted activity, it has committed an unfair labor practice in violation of Section 8 of the NLRA. Section 8 provides, “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7].” The following employment actions have been found to be in violation of Section 7 rights:
- Terminating a group of employees who walked off the job to protest their supervisor;
- Disciplining an employee for questioning the president of the company, who was discussing a change in the company’s break policy with employees;
- Terminating an employee who placed a call to the U.S. Department of Labor (DOL) to inquire about whether employees are entitled to holiday pay;
- Terminating a salesman for being an “outspoken critic” of special two-hour meetings that sales personnel were required to attend, without compensation, before the store opened;
- Terminating two employees who composed a letter protesting a change in the method of compensation;
- Terminating an employee who mailed a letter to the employer’s parent company complaining about working conditions and bonuses;
- Terminating an employee who complained about the company’s president requiring employees to spend large amounts of time on personal projects for the president;
- Terminating employees who provided affidavits to a sheriff in which they stated that the company’s vice president had embezzled funds;
- Terminating an employee after she and another employee told a third employee of their perception that the employer’s refusal to hire the employee’s daughter was unlawful race discrimination;
- Disciplining a sales representative for complaining about a change in the commission plan presented by a vice president during a meeting with all sales representatives; and
- Disciplining an employee who spoke to other employees about her compensation in violation of the employer’s written policy prohibiting such communications.
The 3 most common traps
Often, employers of “at-will” nonunion employees fall into the trap of unknowingly violating their workers’ Section 7 rights. While there are myriad ways for employees to engage in protected concerted activity, three broad types of activities generate a disproportionate number of Section 7 violations:
- The unbearable confidentiality of compensation. Many companies maintain explicit policies that prohibit employees from discussing their compensation with coworkers. Such policies are understandable because employers don’t want to engender squabbles and jealousy between employees based on their wages. However, policies prohibiting employees from discussing their wages are unlawful. If employees have a right to engage in concerted activity with regard to their wages, they have to be able to discuss their wages with each other. Accordingly, a policy that prevents such interactions will be deemed a violation of Section 7, and more important, an employee who is disciplined or terminated for violating the policy will typically be entitled to reinstatement and damages.
- The right to e-mail shall not be abridged. A nonunion employer cannot terminate employees for sending mass e-mails complaining about company policies if it allows the e-mail system to be used for personal reasons or similar work-related matters. Even if the e-mail message is simply informative or an opinion and doesn’t seek input from other employees, it’s still protected activity. Moreover, an intentionally sarcastic tone doesn’t eliminate the protected nature of the communication.
- When walking out is not quitting. Most employers naturally presume they can terminate employees who walk off the job, citing job abandonment. However, if employees walk off the job to protest certain employment conditions, the protest can be protected concerted activity under Section 7. Not every walkout is necessarily protected, but it’s important to consider employees’ Section 7 protections before taking any adverse action in response to a walkout.
It’s advisable for all private-sector nonunion employers to determine whether their employees are covered by the NLRA. If you determine that your employees are covered, it’s important to understand the scope of their Section 7 rights and apply that understanding to any adverse actions you’re contemplating to ensure your actions don’t violate the NLRA. In addition, it’s advisable to review your company policies to determine whether any of them might infringe on employees’ Section 7 rights.
Union employers should also be aware that employees are protected under Section 7 in addition to the terms and conditions of your collective bargaining agreements. Even if you feel you have the proper contractual right to take a certain action, you should consider whether the action would infringe on any concerted activity protected by Section 7.