Viewpoint: The ABCs of the NLRA for Nonunion Employers

By Christine Walters and Patricia Wise Jul 22, 2016
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​Even nonunionized workers have the right to protected concerted activity under the National Labor Relations Act.

​Many employers are unfamiliar with the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB), much to their peril. More than 90 percent of all nonpublic employees do not belong to unions. But nonunion employers, even those that will never have an organized workforce, must still be aware of the NLRA and the NLRB.

The NLRB has become much more aggressive in attempting to expand the awareness and reach of Sections 7 and 8 of the NLRA, which protect employees' right to "protected, concerted activity." The act has not changed, but the NLRB's application and enforcement of the law has changed dramatically. The board's recent aggressive enforcement efforts among nonunion employers are unprecedented. As a result, a law that was previously disregarded by some human resource professionals as irrelevant to their organization can no longer be ignored.

Background on the NLRA

The NLRA provides much of the framework for union-organizing efforts and the negotiation and interpretation of collective bargaining agreements. The NLRB is the federal government agency charged with applying and interpreting the act. The board revises its positions, and even reverses its own rulings, at times, based on new board membership and often with changes in elected officials, such as the president. What has never changed since its inception in 1935, though, is that certain provisions of the act have always applied to nonunion employers and employees.

Section 7 of the NLRA protects the rights of employees who want to form and join unions, and goes on to say that all employees have the right "to engage in ... concerted activities for the purpose of (their) mutual aid or protection." These rights are often referred to as Section 7 rights or protected concerted activity. This means that nonsupervisory union and nonunion employees have the right to act together to improve wages and other terms and conditions of employment and to communicate among themselves and with others to do so. Section 8 of the NLRA makes it an "unfair labor practice" (ULP) for an employer to "interfere with, restrain, or coerce employees" attempting to exercise or exercising those rights.

Heightened Enforcement

What has changed in recent years is the NLRB's enforcement of these provisions. Recently, many nonunion employers have been charged with unfair labor practices as the result of more-aggressive enforcement of the NLRA in nonunion workplaces.

Through its protected concerted activity initiative, the NLRB has applied the act to a variety of policies and procedures common in the workplace, which have previously been unchallenged. Many human resource professionals have no prior experience with the NLRA or the board, have never had to defend a ULP charge and are having to get up to speed fast.

The NLRB has said that the purpose of its initiative is to make all employees, and specifically nonunion employees, aware of their rights to engage in protected activity to improve pay and other working conditions or to fix job-related problems.

The NLRB has developed a website targeting nonunion employees, explaining these rights and providing examples of protected concerted activity. The website also encourages employees to contact the NLRB if they believe their rights have been violated and advises that the NLRB will investigate.

The area currently receiving most of the NLRB's attention and enforcement efforts is social media. Employees' rights to engage in protected concerted activity clearly extend to all activity on the Internet and via the Web whether through e-mails, blogs, micro-blogs or various social media forums.

Employee conversations regarding protected concerted activity have often been referred to as "watercooler conversations," that is, the discussions employees would have while gathered around the iconic workplace watercooler. The rules that have traditionally been applied to employees' exercise of Section 7 rights in that setting are now being applied to Internet and electronic communications. This ignores the reality that often these kinds of conversations occur outside the workplace and can be directed to or read by the general public, or at least to a wide audience far beyond the employer's workforce. These kinds of communications have the potential to cause far greater damage or harm than the traditional "watercooler conversations."

From Aug. 18, 2011, through May 30, 2012, the NLRB issued three memoranda addressing employers' social media policies and related practices. The third included a sample social media policy.

NLRB Targets

Although many issues remain unsettled, what is clear is that nonunion employers' policies and procedures are now much more likely to draw the attention of the NLRB. Human resource professionals may be well-advised to become familiar with the NLRB's general counsel's memo concerning employer rules,  which addresses a variety of policy topics including but not limited to confidentiality, professionalism, anti-harassment, trademark infringement, photography/recording and media contact.

Policies and management decisions that were previously outside the range of enforcement efforts are now subject to much greater scrutiny and to challenges by the board. While board membership and board decisions may change, or courts may eventually revise or reverse the actions and pronouncements of the NLRB, for now attention must be paid to its increasingly expansive workplace restrictions on employers.

Christine Walters, J.D., SHRM-SCP, and Patricia Wise are members of the Society for Human Resource Management's Labor Relations Special Expertise Panel. Walters is an independent consultant and sole proprietor of FiveL Company in Westminster, Md. Wise is an attorney at Niehaus Wise & Kalas Ltd. in Toledo, Ohio.

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