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Barran Liebman

National Labor Relations Act Protections 
For Non-Union Employees Avoiding Unfair 
Labor Practice Charges Filed by the Non-Union Employee

by Nelson D. Atkin II  email
and
LeAnne K. Jabs email
Barran Liebman LLP 

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Introduction

The National Labor Relations Act (NLRA or the Act) protects associational rights of “non-union” employees as well as “union” employees.  This article serves as a reminder that it is possible to commit an unfair labor practice without a union presence in the workplace.  Employees may engage in protected concerted activity in situations other than traditional union organizing and collective bargaining.  Employers also must allow a coworker to be present during employee investigatory interviews under a recent NLRB interpretation of the Act.

What types of non-traditional employee actions are protected by the NLRA?

The NLRA protects associational rights of both union and non-union employees.  Section 7 of the NLRA provides in relevant part:

“Employees shall have the right to self-organization, to form, join, or assist labor organization, 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, and shall also have the right to refrain from any or all of such activities * * *.”  (29 USC 157). 

“Employees” covered by the Act can include almost any employee except “supervisors.”  Section 2(11) defines “supervisor” as:

“* * * any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”  (29 USC 152(11)).

Note that employees who are exempt under wage and hour laws as “Executive,” “Administrative” or “Professional” may have Section 7 rights.  In short, Section 7 applies to most non-supervisory and/or non-managerial employees in the workplace.

Section 7 gives covered employees the right to engage in concerted activities even though no union activity is involved and even though no collective bargaining is contemplated by the employees involved.  NLRB v. Phoenix Mutual Life Insurance Co., 167 F2d 983, 22 LRRM 2089 (7th Cir 1948), cert. denied, 335 US 845 (1948).

What is “concerted activity”?

“Concerted activity” is any activity by individual employees who are united in pursuit of a common goal. To find an employee’s activity to be “concerted,” the action must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.  An employee’s conduct is not “concerted” unless it is engaged in with or on authority of other employees. Meyers Industries, 281 NLRB 882 (1986).

The definition of concerted activity encompasses those circumstances where individual employees seek to initiate, induce, or prepare for group action as well as actions by individual employees bringing truly group complaints to the attention of management.

The activities must be “concerted” before they can be “protected” by the NLRA. 

What is protected concerted activity?

Protected concerted activity is that activity engaged in for employees’ “mutual aid or protection.”  Such activity includes employee efforts to improve working conditions and terms of employment.  If an employee is engaged in protected concerted activity, an employer may violate the NLRA if, in addition:

  1. The employer knew of the concerted nature of the employee’s activity;

  2. The concerted activity was protected by the Act; and

  3. The adverse employment action at issue (e.g., discharge) was motivated by the employee’s protected concerted activity.

Section 8 of the NLRA (29 USC 158(a)(1)) provides:

“It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7].”

In essence, an employer’s retaliatory conduct against an employee because of that employee’s protected concerted activity violates the rights guaranteed by Section 7 of the NLRA. Remedies for unfair labor practices include reinstatement with full back pay plus interest.  Employers also are required to post a notice to all employees detailing the violation and the remedy.

Some examples of unfair labor practices for violating employees' Section 7 rights to engage in protected concerted activity include the following:

  •             An employer fired a salesman for being an “outspoken critic” against special two-hour meetings which sales personnel were required to attend without compensation before the store opened.  The employee was awarded reinstatement with full back pay plus interest.  NLRB v. Henry Colder Co., 907 F2d 765 (7th Cir 1990).

  •             An employer who fired two employees who composed a letter protesting change in the method of compensation committed unfair labor practice.  The employees were awarded back pay with interest, plus reinstatement.  Westmont Plaza, 298 NLRB 401 (1990).

  •             An employer who fired employees who mailed a letter to the employer’s parent company complaining of working conditions and bonuses, due in part to the employer’s president requiring employees to spend large amounts of time on the president’s personal projects committed an unfair labor practice.  The employees were entitled to reinstatement, and back pay plus interest.  NLRB v. Oakes Machine Corp., 897 F2d 84 (2nd Cir 1990). 

  •             Discharging employees who gave affidavits to a sheriff stating that the employer’s vice-president had embezzled funds from the employer was a violation of the NLRA.  The employees were engaged in protected activity and awarded reinstatement and back pay with interest.  Squier Distributing v. Teamsters Local 7, 801 F2d 238 (6th Cir 1986). 

  •             An employee who objected at an employee meeting to the supervisor’s lecture about the volume of radio headsets and received a written warning was engaged in protected activity; her discharge was an unfair labor practice.  The employee was awarded reinstatement, plus back pay with interest.  Rockwell International v. NLRB, 814 F2d 1530 (11th Cir 1987).

  •            A restaurant owner/manager’s discharge of an employee who complained about the employer’s tip pool system violated the NLRA.  The employee was awarded reinstatement, and back pay plus interest.  Showcase, Inc., 277 NLRB 1444 (1986).

  •             The employer committed an unfair labor practice when it discharged an employee after she and another employee told a third employee of their perception that the employer’s refusal to hire that employee’s daughter was unlawful race discrimination.  The employee was engaged in protected activity and was awarded back pay with interest, and reinstatement with no loss of seniority or benefits.  Dearborn Big Boy No. 3, 328 NLRB No. 92 (1999).

Checklist To Avoid Interfering With Non-Union Employees’ Section 7 Rights.

  1. Is there concerted activity? Were two or more employees acting together; or was one employee acting on the authority of other employees.

  2. Is the activity protected—i.e., engaged in for employees’ “mutual aid or protection?”

  3. Is the employer’s adverse employment action motivated by the employees protected concerted activity? Did the employer know of the activity? Was employer motivated to act by it?

Non-Union Employees May Request Coworker Presence At Investigatory Interview.

Union employees have the right to have union stewards present during investigative interviews.  NLRB v. Weingarten, Inc., 420 US 251 (1975). These rights are known as “Weingarten rights,” named after the 1975 Supreme Court decision.  Except for a brief period over a decade ago, the rights have applied only to union-represented employees.  

However, in July 2000, the National Labor Relations Board reversed its long-standing rule and held that employers must grant employee requests to have a coworker present during an investigatory interview even when they are made by employees who are not represented by a union.  A non-union, non-supervisory employee who makes the request may be accompanied by a coworker of his/her choice during any meeting or investigatory interview which the employee “reasonably believes” may result in disciplinary action.  Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000).

Epilepsy Foundation was affirmed on appeal by the United States Circuit Court of Appeals for the District of Columbia. Epilepsy Foundation v. NLRB, 268 F3d 1095 (DC Cir 2001), petition for certiorari filed (March 4, 2002) (No. 01-1292).  The DC Circuit concluded that “the presence of a coworker gives an employee a potential witness, advisor, and advocate in an adversarial situation, and, ideally, militates against the imposition of unjust discipline by the employer. * * * The Board’s determination that an employee’s request for a coworker’s presence at an investigatory interview is concerted action for mutual aid and protection and thus [is] within the realm of [Section] 7[.]”  Id. at 1100.  Although the membership of the Board has changed and a petition for review has been filed, the Epilepsy Foundation decision remains controlling for the time being. 

What is an investigatory interview?

Employees do not have Weingarten rights when a manager is just giving instructions, correcting the employee’s work technique or training the employee.  Nor do employees have Weingarten rights when discipline is being imposed.  They apply when the employee attends an investigatory interview he/she reasonably believes might lead to discipline, and they might be available during a pre-discipline counseling session.  To be on the safe side, employers may wish to allow the coworker to be present if the interview is arguably investigatory or if discipline is a possible result.

What role may the coworker play?

Weingarten rights do not include the right of the coworker representative to be rude, abusive or disruptive.  The coworker has the right to know in advance about the subject of the interview, and may assist and counsel the questioned employee during the interview.  He/she has the right to speak privately with the employee before the interview.  And although the coworker cannot tell the employee what to say, he/she may advise the employee how to answer a question, may interrupt to clarify a question or to object to confusing or intimidating tactics, and should be allowed to add information to support the employee’s position. 

What impact does this rule have on an employer when conducting an investigatory interview?

First, employers have no obligation to inform employees of this right prior to conducting any investigatory interview.  Employees have Weingarten rights only if they request a representative or coworker.  When the employee makes a request to have a coworker present, the employer has three options:

  1. Stop questioning until the coworker arrives;

  2. Call off the interview; or

  3. Tell the employee that the interview will be stopped unless the employee voluntarily gives up their right to have a coworker present (this option should be exercised with great caution!)

Employees can still be disciplined for the underlying offense even if the employer calls off the interview; but the employee may not be disciplined for making the request for a coworker’s presence.  And as most employers know, it is normally best to give the employee an opportunity to explain.

Failing to stop the interview or preventing an employee from having a coworker present can be grounds for an unfair labor practice charge.  An employer could be subject to charges being filed with the NLRB, with possible liability for reinstatement, back pay and interest.  

Conclusion

The unsuspecting employer may be caught off-guard by unfair labor practice charges in a context other than a traditional labor organizing campaign or collective bargaining setting.   All employers regardless of union status should exercise care when their employees engage in conduct that could be perceived as concerted activity.  Also, employers must permit employee requests for coworker presence during investigatory interviews.  

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