National Labor Relations Act Protections
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:
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
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).
is “concerted activity”?
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.
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,
Section 8 of the NLRA (29 USC § 158(a)(1)) provides:
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.
examples of unfair labor practices for violating employees' Section 7 rights to
engage in protected concerted activity include the following:
To Avoid Interfering With Non-Union Employees’ Section 7 Rights.
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).
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
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?
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.
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:
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.
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.