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The labor law waiting to trip you up–even if you’re not unionized!

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in Employment Law,Firing,HR Management,Human Resources,Leaders & Managers,Management Training

by Mark S. Mathison and Abigail S. Crouse, Esqs.

The federal labor law can be a trap for the unwary—even for nonunion employers. Even if your employees don’t belong to a union, the National Labor Relations Act (NLRA) applies to you.

For example, the National Labor Relations Board (NLRB) recently announced that a nonunionized employer will pay $900,000 to two fired employees to settle charges that it violated the NLRA.

Petition, then retaliation

The charges, in which no union was involved, grew out of a petition that employees of the Texas Dental Association signed using aliases.

It asked the association’s 7,000 members to launch an outside investigation of management and working conditions.

Association executives did launch an investigation—to find out who had been involved in preparing and distributing the petition.

One employee who helped write the petition was fired after a fragment of it was found on his computer. A supervisor who refused to divulge the names of employees involved in the petition was also fired.

This case went to trial before the NLRB, and the judge ruled that the Texas Dental Association committed unfair labor practices because firing the two employees was retaliation for—and interfered with—their right to engage together in “concerted activity” protected by the labor law.

The judge found that the first employee was unlawfully fired for engaging in protected activity, and that the supervisor was fired for refusing to engage in unlawful activity by divulging the employees’ identities.

The case was pending before the 5th Circuit Court of Appeals when it was settled through mediation.

‘Concerted activities’

The Texas Dental Association case provides a stark reminder for all employers about the importance of complying with the federal labor law.

The NLRA is the federal labor law that applies in most private workplaces. It protects employees’ rights to engage in—and to refrain from engaging in—a broad range of “concerted activities.” In essence, concerted activity occurs anytime employees gather to talk about or work together to affect the terms and conditions of their jobs.

The concept of protected concerted activity—like all other fundamental employee rights in the federal labor law—comes from Section 7 of the NLRA. Employees’ rights relating to collective-bargaining and union activities are often referred to as “Section 7 rights.” The bedrock principle of Section 7 is that employees have the right to freely choose whether or not to engage in collective activity—whether there is a union involved or not.

Rights under the NLRA

Employees’ rights under the labor law include the rights to:

  • Discuss terms and conditions of employment or union organizing with co-workers or a union.
  • Take action with one or more co-workers to improve working conditions by, among other things, raising work-related complaints.
  • Form, join or assist labor organizations or unions.
  • Engage in “other concerted activities” for the purpose of collective bargaining or other “mutual aid or protection.” This includes any employee advocating in any way for another employee, or on behalf of one or more employees.
  • Refrain from engaging in self-organizing and concerted or union activity.

Even though the NLRA does not generally protect supervisors, a supervisor’s discharge violates Section 8(a)(1) under certain limited circumstances, including when it is based on the supervisor’s testimony in an NLRB hearing or refusal to commit an unfair labor practice.

The NLRA has potentially critical implications for many employment policies and practices, whether a workforce is unionized or not.

First, violating the act can be expensive. The Texas Dental Association had to pay almost $1 million to just two employees.

In addition, committing unfair labor practices can also have a negative effect on an employer’s ability to resist unionization. As this case amply demonstrates, employers—even those without unions—can save themselves headaches and expense by ensuring that their supervisors and HR professionals understand how the NLRA applies in their workplaces.

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Authors: Gray Plant Mooty Principal Mark S. Mathison advises employers of all types and sizes on labor and employment law issues in the workplace. Contact him at mark.mathison@gpmlaw.com or (612) 632-3247. Abigail S. Crouse is a principal at Gray Plant Mooty and practices in the areas of employment law and labor law. You can reach her at abigail.crouse@gpmlaw.com or (612) 632-3044.

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