How does the National Labor Relations Act (NLRA) apply to Non-Union Employees
Managers and HR at nonunion workplaces often overlook important rights that the NLRA provides to ALL employees whether or not they are union members. Failure to observe these rights, or disciplining a nonunion member in violation of the NLRA can result in a surprise unfair labor practices charge from the National Labor Relations Board. Here are key rights all employees have under the NLRA:
1. The right to engage in concerted activity about work conditions, pay and discipline
This right means that you cannot discipline employees for sharing information about their compensation, discipline issued or for complaining to coworkers about management or other work conditions. A perfect example is Employee A learns that Employee B was recently hired to do the same job as Employee A for $15,000 more per year. A immediately starts complaining to her coworkers about this disparity in pay one of whom tells their manager. The manager brings A and B into his office and demands to know how A knows about B’s compensation, because B was instructed to keep her salary confidential in her offer letter. B admits to the mistake and A demands a raise so her pay is equal to B’s pay. The manager responds to the situation by terminating B and issuing a written warning to A for discussing compensation with her coworker because it’s a violation of company policy. Both of these disciplinary actions are unlawful under the NLRA.
2. The right to engage in concerted activity to form a union
The NLRA empowers all employees the right to attempt to form a union. This means they can contact local unions, arrange meetings with union representatives and distribute pro-union literature to coworkers. In the example above, A cannot be fired if she responds to her discipline by openly speaking to her coworkers about forming a union, arranging for other interested employees to meet with union representatives, or participating in getting a union certified. Even if A’s efforts to form a union are unsuccessful, this conduct is still protected activity under the NLRA.
While the NLRA does not ordinarily protect supervisors, it does, if the supervisor objects to conduct made unlawful by the NLRA
3. The right of supervisors to observe NLRA protections for subordinates
While supervisors are usually not subject to the protections of the NLRA, if they engage in activity to ensure compliance with the NLRA, this conduct is protected. Let’s say in the example above, Manager speaks to his Division Director about A’s request and B’s disclosure of compensation. Division Director tells Manager to fire B and discipline A with a written warning. Manager objects to this disciplinary action because it “violates the workers’ rights.” In response, Division Director demotes Manager for failing to uphold company policy. This demotion is unlawful under the NLRA.
4. Concerted Activity includes multiple methods of communication:
Concerted activity is not just verbal, it includes sending emails to multiple coworkers, convening in social media spaces such as setting up a public social media group to vent about workplace conditions at your company, circulating petitions for pay transparency, or sending a group letter to the Board Chair detailing workplace complaint. Companies should review their social media and technology policies to ensure that they do not restrict this type of conduct.
The above are simply examples of the most obvious rights that the NLRA affords nonunion employees. CHRO, LLC can help you avoid an unfair labor practices charge through review of your Employee Handbook and current policies to ensure full NLRA compliance.
