National Labor Relations Act (NLRA)
The National Labor Relations Act (NLRA) is a federal law that governs labor relations in private companies that meet certain revenue standards. If an employer is covered by the law, its employees will have the right to organize a union; to bargain collectively through a representative; and to engage in strikes, picketing, and other “concerted activities for mutual aid and protection.” An employer can’t interfere with those rights or retaliate against employees for exercising them.
The NLRA is enforced by the National Labor Relations Board (NLRB), which is a bipartisan board appointed by the president.
Complying with the NLRA
During a union organizing campaign, management must obey a long list of rules about what it can say and do. In general, a company (including individual managers and supervisors) can’t do anything to interfere with employees’ free choice to support a union.
The NLRA provides for two primary processes by which a labor union can be certified as the bargaining representative for a company’s employees — the card check and the secret-ballot election.
Generally speaking, you can limit the union’s campaign activities the same way you limit other solicitations. If you’ve been lax in enforcing your solicitation rule, you can’t suddenly start enforcing it when a union shows up.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including labor unions and organizing
Employee Free Choice Act
The Employee Free Choice Act (EFCA) is proposed federal legislation that seeks to amend the National Labor Relations Act (NLRA) by making changes to the current process for employees to elect labor union representation and to the process associated with negotiating an initial collective bargaining agreement (CBA) between an employer and a newly certified union representing its employees. The EFCA also seeks to add significant penalties for certain practices that violate the NLRA.
The NLRA and nonunionized employers
The NLRA vests all employees, regardless of whether they’re represented by a union, with the right to engage in “protected, concerted activity.” The NLRB defines “protected, concerted activity” broadly. The NLRB’s interpretation of the term encompasses a number of situations in which many employers might mistakenly think they are free to discipline an employee however it sees fit.
Protected concerted activity
It’s unlawful to discharge or otherwise discriminate against employees because of their union activities. What employers, both unionized and nonunionized, too frequently don’t understand is that the NLRA also protects employees from discharge or retaliation because of participation in protected concerted activity unrelated to union activity.
In essence, the law protects an employee’s right to act in concert with one or more other employees in furtherance of a common concern regarding any term or condition of employment. Any form of discipline or retaliation motivated by an employee’s engaging in protected concerted activity is unlawful.
There are essentially two simplified forms protected concerted activity may take: (1) two or more employees clearly acting together — e.g., a walkout, a petition, or a group complaint, or (2) one employee acting on behalf of others — e.g., a telephone call to a local or federal agency on behalf of others.
Protected activity is difficult to define with clarity. The important thing is to recognize when protected concerted activity may exist so an employer can tread carefully before acting.