No Union? No Matter – Labor Board is After You

  • Jul 21, 2016
  • NLRB
  • Dennis J. Merley

Even if your employees are not unionized, the National Labor Relations Act (NLRA) is a major concern. In fact, now more than ever, the National Labor Relations Board (NLRB), is targeting non-union employers for violating the law’s protections.

Union and non-union employees alike have “Section 7 Rights” under the NLRA, which protects employees’ rights to join unions, bargain collectively and engage in other concerted activities for [their] mutual aid or protection.  Interference with Section 7 rights is an unfair labor practice that can result in sanctions and penalties.

Examples of Protected Concerted Activities

In recent years, the NLRB has expanded their interpretation of protected “concerted activities” to include just about anything that two or more employees do or say in regard to the employer. For example:

Employees A, B, and C are posting on Facebook about how they think a certain supervisor is unfair. After Employee A writes that the supervisor is a real jerk and she hates him, Employees B and C “like” her post. Another employee reads the posts and reports the activity to the employer, who promptly fires Employee A.

This is probably unlawful. These employees were engaged in concerted and protected activity under Section 7 because they have the right to discuss their working conditions. Perhaps, if the complaints are “bad enough” (e.g. disparaging a customer), they might lose the protection of the law but merely being critical of the employer or a manager is not enough.  If (former) Employee A files an unfair labor practice charge with the NLRB, the employer likely would be liable for back pay and reinstatement. The NLRB also would scrutinize the employer’s social media and workplace conduct policies to be sure that they cannot be read to “chill” the exercise of the employees’ Section 7 rights.

Another example:

During a sexual harassment investigation, the Human Resources Director follows normal policy by telling everyone interviewed to “keep the investigation confidential.”

This is probably unlawful. The NLRB views confidentiality requirements such as this as restricting employees’ abilities to reach out to co-workers (and to third parties, like unions) to discuss concerns at their workplace. While there are times when it is appropriate to keep an investigation confidential, the NLRB would likely require an extreme case, such as active criminal drug ring at the workplace where there were legitimate concerns that witnesses would be in physical danger for speaking to the employer. Otherwise, even if the issues are sensitive, employees cannot be prohibited from discussing a workplace investigation that concerns them.

Bottom Line

Be aware that except in limited circumstances (e.g. government agencies, religious institutions, very low-revenue entities), the NLRA applies to your workplace. Therefore, you should evaluate whether your “normal” policies and procedures could be interpreted to restrict your employees’ Section 7 rights.

This topic will be examined in much greater depth at the annual Felhaber Larson Labor & Employment Seminar scheduled for October 28, 2016. Look here for details about the program, and check back in early Fall for registration.