Why Should a Non-Union Company Care About the NLRB?

By Ronald Meisburg and Leslie E. Silverman Aug 11, 2010

Why should a non-union company care about the National Labor Relations Board (NLRB)? This is a common question, and it is not surprising. Most employers associate the NLRB with unions, strikes, collective bargaining and the like. If you don’t have a unionized work force, why should you pay attention to issues related to the NLRB and the law it enforces, the National Labor Relations Act?

The reason is demonstrated amply by a 2009 case.

The Texas Dental Association is headquartered in Austin, Texas. Its employees are not represented by a union. Eleven of the employees, using aliases, signed a petition requesting that the delegates to the association’s convention authorize an outside investigation into management and working conditions at the association’s headquarters. The delegates declined to authorize the investigation.

The association director did perform an investigation, however, into who was behind the petition. Using computer forensic investigative techniques, a fragment of the petition was found on one employee’s computer, and this employee was fired. A supervisor who refused to divulge the names of the other employees who signed the petition was also fired.

The fired employee and supervisor each filed unfair labor practice charges with the NLRB. The employee claimed that he was fired for engaging in “protected concerted activities” in violation of rights guaranteed under Section 7 of the law. The “protected activities” included the discussions with fellow employees about working conditions and drafting, circulating and presenting the petition to the delegates.

The supervisor claimed she was fired because she refused to reveal the names of other employees who were engaged in the same protected activities. While supervisors generally are not covered by the act, an employer may not terminate a supervisor who refuses to take part in an unlawful attempt to punish employees who have engaged in protected activities.

Even though this case did not involve union organizing activities, the NLRB had jurisdiction. Under the NLRA, employees have the right to act concertedly for their “mutual aid and protection,” which can include things like asking their employer for better pay and benefits and better working conditions, or simply discussing among themselves and with others their employment-related concerns. The NLRB upheld the employees’ charges and ordered back pay and reinstatement. The association appealed the case to the U.S. Court of Appeals. While the case was pending there, the association entered into a settlement with the NLRB, under which the employees received $900,000 and waived reinstatement.

This case is an example of why all employers, union and non-union alike, must be aware of the rights conferred on employees, union and non-union, under the law. There are other reasons why all employers should pay attention to the NLRB and the law.

The NLRB decision discussed in this article was issued July 29, 2009, and is published at 354 NLRB No. 57.

Ronald Meisburg is a partner in Proskauer’s Labor & Employment Department. He served as general counsel of the NLRB from 2006 to 2010 and was a member of the Board in 2004.

Leslie E. Silverman is a partner in Proskauer’s Labor & Employment Department and a member of SHRM’s Labor Relations Special Expertise Panel. Prior to joining Proskauer, she served as vice chair of the EEOC and as labor counsel to the Senate Health, Education, Labor and Pensions Committee.


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