Starbucks and Amazon are just two of the latest examples of businesses making headlines because of worker unionization efforts. Although as a small or medium-sized business owner, you may not spend much time worrying about collective bargaining, you should know that the majority of private-sector businesses in the U.S. are still governed by laws that allow employees to seek better working conditions, regardless of whether they currently have a unionized workforce. That brings us to the NLRA.
What is the NLRA?
The NLRA is the National Labor Relations Act.
Reeling from the Great Depression, workers began organizing, striking, and violently clashing with employers in the early 1930s. In response, Congress passed the NLRA in 1935 to provide employees in private-sector workplaces the right to seek better working conditions and to designate representation without fear of retaliation. The NLRA applies to all employers involved in interstate commerce and protects employees whether unionized or not.
The NLRA offers protections to employees except:
- Agricultural laborers,
- Domestic workers,
- Family members,
- Independent contractors, and
- Managers and supervisors
Managers and supervisors are considered part of a company's management, not its workforce, so managers and supervisors cannot join unions or be part of the bargaining process.
The NLRA grants employees the right to organize and requires that employers bargain with them collectively. It gives employees the right to engage in concerted activities, an activity undertaken by two or more employees or one employee acting on the authority of other employees to achieve progress in current working conditions or issues. It also created the National Labor Relations Board (NLRB) as a regulatory agency to oversee the law.
What are employee rights under the NLRA?
The NLRA grants employees two basic rights:
- The right to form, join, or assist a union, and
- The right to engage in concerted activities for mutual aid or protection.
Employees have the right to unionize and join together to advance their interests as employees and to refrain from such activity. Employers (and their managers) may not interfere with, restrain, or coerce employees that exercise their rights.
The NLRA gives employees the right to engage in protected concerted activities whether they are represented by a union or not. It defines concerted activities broadly, from worker unionization to less obvious applications. There are many actions protected under the NLRA.
- Social media posts – Employees may address work-related issues and share information about pay, benefits, and working conditions with coworkers on social media platforms to initiate, induce or prepare for group action. (Note: An individual griping about work is probably not considered a “concerted activity.”)
- Discussing wages with peers – Employees may discuss wages. Any policies prohibiting such conversations are unlawful.
- Political viewpoints – Employers can limit workplace discussion of politics, but may risk unfair labor practices if limiting the discussion of a candidate’s position on workplace issues such as healthcare, benefits, wages, etc.
- Displaying a union insignia – The NRLB has ruled that insignia on buttons, t-shirts, etc. are a form of protected communication unless special circumstances exist that jeopardize safety.
Employers should think twice before taking corrective action against an employee for their conduct and make sure the offense was not related to wages or working conditions. Consult with an HR professional prior to taking action.
How does the NLRB work?
The NLRB is the independent federal agency that enforces the NLRA. They arbitrate deadlocked labor-management disputes, guarantee democratic union elections, and implement penalties for unfair labor practices.
- The Board
- The Board is made up of five members who are appointed by the President to five-year terms, and the term of one member expires each year.
- The NLRB enforces the law and issues rules and regulations. The NLRB rules can change based on the makeup of the Board's members.
- General Counsel
- General Counsel is independent of the Board, but also appointed by the President.
- General Counsel investigates charges, issues complaints, and prosecutes cases before the NLRB.
- Administrative Law Judges
- The judges are independent.
- Hearings on unfair labor practices come before the administrative law judges, and they issue decisions.
- The Office of the Solicitor
- The Office of the Solicitor is chosen by the Board
- Acts as its legal adviser.
- There are 26 regional offices for the NLRB throughout the U.S.
How Does the NLRA Affect Employers?
It is crucial to understand that the NLRA can apply to you and your business, even if your workforce is not unionized. Visit this link to help determine whether the law applies to your business. The NLRB has become increasingly active in issuing guidance and rules that affect employers in unionized and non-unionized businesses. Recently, the NLRB has found that many employers are restricting employees’ exercise of protected concerted activity concerning pay and working conditions.
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