A Sampling of the National Labor Relations Act Provisions that Apply to Non-Union Companies

Matthew D. Austin*

Introduction

Most transportation attorneys are familiar with standard employment laws: harassment, discrimination, and wage violations. California’s AB5 “joint employer” test has also been the topic of many TLA articles and presentations. Not everyone is familiar with labor laws, though.

Labor laws are different from employment laws. Labor laws arise out of the National Labor Relations Act (the Act). Most people think the Act only applies to companies with unions. And if their company isn’t union, they don’t need to worry about the Act. Wrong.

The Act applies to all companies, regardless of union status and covers all non-supervisory employees at private companies. That’s about 90% of America’s workforce. From transportation and warehousing companies to technology companies and even law firms – the Act applies to them all.

Although companies in the transportation industry have roughly three times the national average of employees in unions, even non-union companies need to understand the Act.

Violations of the Act are not litigated in court. The aggrieved files an unfair labor practice charge with the Regional Office of the National Labor Relations Board. The Region investigates and decides whether to issue a complaint. If a complaint is issued, a hearing is held before an Administrative Law Judge. An appeal is heard by three of the five members of the Senate-confirmed National Labor Relations Board (the Board).

Appeals from Board rulings are filed in federal appellate courts.

The Board has become very relevant recently for creating and overruling prior caselaw and expanding the awareness of the protections of the Act. The Board’s enforcement efforts among non-union employers are unprecedented. As a result, a statute that was previously disregarded by non-union companies as irrelevant to their organizations can no longer be ignored.

Section 7 of the Act1 sets forth the legal rights of employees. It gives employees the right to engage in “concerted activities” for their “mutual aid or protection.” This is called “protected concerted activity.” Section 8 of the Act prohibits employers from interfering with or restraining protected concerted activity.

What constitutes protected concerted activity is an issue that is often litigated. Its basic parameters are:

• two or more employees acting to address a collective employee concern; or

• a single employee acting on behalf of others.

Egregious protected concerted activity can lose protection of the Act. Whether activity is egregious, though, is left to the factfinder.2

Notable NLRB Rules

What follows are NLRB rules many nonunion employers do not know about but should.

1. Employees Walking Off the Job

Most people think of unions when they think of strikes. Ironically, though, non-union employees can more easily go on strike. Collective bargaining agreements generally contain “no strike” clauses. Suppose two non-union employees complain to management that it is too hot in their area to work and ask the manager to do something about it. The manager says she cannot do anything about it and tells them to get back to work. The employees go home instead of returning to work. The Board would likely find any discipline against the employees who walked off the job to be unlawful.3

2. Sharing Pay Information with Coworkers

The NLRB views employee discussions regarding pay as protected activity.4 The mere existence of such a policy violates the Act.5 So do oral instructions to not discuss wages.6

3. Restricting Bulletin Board Postings by Employees

Employers may lawfully restrict employees from posting items on bulletin boards.7 But if employees can post some items on bulletin boards, they must be allowed to post pro-union and anti-company materials on the bulletin boards, too.8

4.

Compelling Cooperation by Employees

Policies that prohibit employees from