Your organization isn't unionized, so you shouldn't care about the National Labor Relations Act (NLRA), right?
Wrong! The NLRA applies to all employers, including nonunion ones. And the law's impact reaches far beyond union-organizing campaigns. That's why it's wise to brush up on this law now. Being unfamiliar with it could result in an unfair labor practice charge against you.
Workers protected by NLRA if involved in 'concerted activity'
A case highlighted in our October issue showed how the NLRA gives employees in all U.S. organizations the right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
It's this "mutual aid or protection" clause that gives nonunion employees their hook into the NLRA, says Timothy B. Kohls, an associate in the Employment & Labor group of law firm Fredrikson & Byron P.A. in Minneapolis and a former field attorney for the National Labor Relations Board.
The NLRA says you can't punish workers for engaging in "concerted, protected activities" to further their wages or working conditions. These activities must meet two requirements to be protected:
1. The activity usually must involve at least two workers. Only activities that are planned or undertaken by two or more employees working together fall under the NLRA's protection. The exception: Individuals who speak on behalf of other employees are considered acting along with them.
"For instance, say several employees collectively decide to ask for additional vacation time," says Kohls. "They may all receive NLRA protection even if only one brings the concern to's attention. An employee who attempts to instigate a protest is deemed engaged in concerted activity under the NLRA even if no other employee joins the cause."
2. The activity must be for the 'mutual aid or protection' of workers. Not all concerted activities meet this requirement.
"The test for determining whether an employee's activity is protected within the mutual aid or protection clause is not whether it relates to employees' general concerns, but whether it relates to employees' wages, hours or other terms and conditions of employment," Kohls says. "Employees can't gain NLRA protection by trying to alter a company's marketing strategy."
So what, exactly, counts as protected activity? Kohls offers these examples:
Group protests/petitions. Em-ployee petitions or group protests about the job's terms and conditions are the classic example of a concerted, protected activity. Example: If em-ployees distribute a petition asking for a pay increase or a longer lunch break, you can't reprimand them for that.
Contacting government agencies. Employees can also gain protection by making group complaints to federal or state agencies regarding working conditions. For instance, if two or more employees file a complaint with OSHA regarding hazardous conditions on the production floor, their complaint is protected by the NLRA, even if it later turns out to be meritless.
Strikes. Contrary to popular belief, nothing limits strikes to union employers, Kohls says. But at nonunion shops, they're typically known by a different name: concerted work stoppages.
Employee meetings. Your employees are free to meet with each other to discuss their working conditions. Don't try to establish a policy that prohibits employees from discussing their pay with each other; such policies typically violate the NLRA. One caveat: You don't have to allow such meetings on your property. You can restrict them to nonwork time and nonwork places.
Complaints about supervisors. In some circumstances, worker protests about a supervisor can actually be protected by the NLRA. How? The supervisor in question must maintain some direct control of the employees' working conditions.
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