Employers too often take the approach that they do not have to worry about the National Labor Relations Act, most commonly called the NLRA, because they are not a ‘union shop.’ It is a short-sighted view. While the NLRA is most-often applied to protect union activities, employees who are not represented by a union also have rights under the NLRA.
The NLRA provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157.
Specifically, Section 7 of the NLRA protects the rights of all employees, union and non-union, to engage in “concerted activity”, which occurs when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
Employees who are not represented by a union also have rights under the NLRA
The NLRA website provides a few examples of protected concerted activities, such as:
Two or more employees addressing their employer about improving their pay.
Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.
But protective activities may also include:
Bringing a group’s complaints to management.
Complaining to management as a group.
Initiating discussions with a group of employees about a term or condition of employment.
Discussing terms and conditions of employment with a group of employees.
Critically discussing other co-worker’s or supervisors’ performance with other co-workers.
So long as these activities are concerted action for the mutual aid or protection of the group regarding the “terms and conditions” of employment, the activities are protected by the NLRA.
With this in mind, employers are required to listen to their employees’ valid collective concerns regarding their terms and condition of employment, including pay, hours, safety and benefits. By the same token, employers are not permitted to taunt, threaten or take adverse action against employees for collectively voicing their concerns.
Best practices are to listen to employees with an open mind to try to achieve a mutually beneficial resolution that not only comports with the law but also creates a positive company culture.
As an employer, our attorneys who specialize in employee relations can help you navigate that minefield with practical and workable policies and procedures to ensure legal compliance and reduce employment-related risk. Contact Kristin Tauras at McKenna Storer for information about this topic or any other employee relations matters.
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